Appeal from an order of the District Court for the Southern District of New York, Edelstein, Judge, adopting the findings and recommendations of Magistrate Nina Gershon, and granting George Sassower's petition for habeas corpus relief from his convictions for criminal contempt. Reversed and remanded with a direction to deny the petition.
This appeal continues, in the federal courts, the "'long and tortured history of litigation'" that began in New York State courts, see Raffe v. Doe, 619 F. Supp. 891, 893 (S.D.N.Y. 1985) (quoting Raffe v. Citibank, N.A., 84 Civ. 305 (E.D.N.Y. Aug. 1, 1984), aff'd without opinion, Nos. 85-7251, -7471 (2d Cir. Sept. 13, 1985)), a litigation in which George Sassower has persistently presented meritless claims. See Report of the Special Referee, In re Barr, No. 1816-1980 (Sup. Ct. N.Y. Co. May 1, 1985).
Lee Feltman, Esq., receiver for Puccini Clothes, Ltd. ("the receiver"), appeals from an order of the district court, Edelstein, J., that adopted the findings and recommendations of Magistrate Gershon, and granted George Sassower's petition for a writ of habeas corpus. Judge Edelstein held that Sassower's conviction in New York State court of 63 counts of nonsummary criminal contempt, for which he had received a 30-day sentence, was unconstitutional because Sassower was not afforded a full evidentiary hearing and because there was no express finding of guilt beyond a reasonable doubt. Sassower v. Sheriff of Westchester Co., 651 F. Supp. 128 (S.D.N.Y. 1986) (memorandum and order).
The principal issue presented on this appeal is whether Sassower's conviction of criminal contempt pursuant to N.Y. Jud. L. § 751 violated his constitutional right to due process where neither the affidavits upon which the finding of guilt was based, nor Sassower's answer to the contempt motion, raised an issue of material fact and where Sassower refused to appear at a hearing before the court appointed referee. On this record we are fully satisfied that Sassower received all of the process he was due and we therefore reverse with a direction to the district court to deny the petition.
While we are loath to expend more judicial resources on this vexatious litigant, some recitation of the facts and procedural history of this case is necessary. The facts underlying the voluminous litigation engineered by Sassower are outlined more fully by Judge Conner in Raffe v. Doe, 619 F. Supp. 891 (S.D.N.Y. 1985).
Briefly, Sassower was the attorney for Hyman Raffe, a disgruntled shareholder of Puccini Clothes, Ltd. ("Puccini"), a New York corporation dissolved and placed in receivership by the New York Supreme Court. 619 F. Supp. at 892. Despite court orders disqualifying him from representing Raffe and enjoining him from filing Puccinni-related litigation, id. at 894-95, Sassower has bombarded both the state and federal courts with numerous motions (over 300), law suits (35), and Article 78 proceedings (40) directed against the receiver and his law firm, the attorneys for the other Puccini shareholders, various members of the judiciary, court appointed referees, and the New York State Attorney General. Brief of appellant Lee Feltman, Esq., as receiver for Puccini Clothes, Ltd. at 2-3. See 619 F. Supp. at 894.
Prior to the criminal contempt proceedings leading to this habeas corpus proceeding, Sassower had been held in criminal contempt four times and in civil contempt twice for violating state and federal orders enjoining him from filing actions related to the judicial dissolution of Puccini, and for disobeying a court order to appear at a deposition. See, e.g., Raffe v. Riccobono, No. 9522/85, slip op. at 6-7 (Sup. Ct. N.Y. Co. July 1, 1985), aff'd, 113 A.D.2d 1038, 493 N.Y.S.2d 70 (1st Dep't), appeal dismissed, 66 N.Y.2d 915, 498 N.Y.S.2d 1027 (1985); Raffe v. Citibank, N.A., 84 Civ. 305 (Nickerson, J.) (E.D.N.Y. June 7, 1985), aff'd, 755 F.2d 914 (2d Cir. 1985). As a result of these convictions and based on a finding that he had engaged in "frivolous and vexatious litigation * * * for the purpose of harassing, threatening, coercing and maliciously injuring those made subject to it," Sassower has now been disbarred. In re Sassower, N.Y.L.J., Feb. 27, 1987, at 36 Col. 3 (2st Dep't Feb. 23, 1987) (per curiam). The New York appellate court also found that Sassower engaged in professional misconduct that obstructed justice and damaged his client by continuing to litigate after he was disqualified. Id. at 36, col. 3d.
On January 30, 1985, the state court proceedings leading to this proceeding began when the receiver moved in Supreme Court, New York County, for an order punishing Sassower for criminal contempt for violating court orders in the Puccini litigation. Sassower received a notice of motion informing him that the receiver would move for an order punishing him "for 64 separate counts of criminal contempt of court on the grounds that he has continuously refused to comply with and has wilfully and flagrantly violated several orders of this court." The notice also informed him that his failure to appear could result in his arrest and imprisonment for contempt of court, that the purpose of the hearing was to punish him for contempt of court, and that punishment could consist of a fine, imprisonment, or both.
The supporting affidavits identified documents, marked with Sassower's name, signature, and litigation back, that he had filed in state court in violation of court orders disqualifying him from representing Raffe and enjoining him from filing law suits against the receiver or his law firm, and in violation of the referee's directives regarding procedures in the Puccini dissolution proceeding.
Sassower filed three cross-motion for dismissal and four affidavits in opposition to the contempt motion. Although he stated that he was pleading "not guilty", he did not deny that he had filed the offending papers, but argued instead that the contempt proceeding was procedurally barred, that he was being denied equal protection, that he was being arbitrarily and discriminatory prosecuted, that he was not disqualified, and that his activities were intended to expose the perjury, conspiracy, larceny and corruption of the receiver, the receiver's law firm, the attorney general's office, and the judiciary. Affidavit of George Sassower, In re Barr, No. 1816-1980 (Sup. Ct. N.Y. Co. December 16, 1985). He also indicated that he would continue to violate the orders by stating, "deponent has his own professional and moral obligations, which will be obeyed" and "deponent does not negotiate with criminals and barbarians, even those that hold law degrees!" Id. at 8. See In re Barr, 121 A.D.2d 324, 503 N.Y.S.2d 392, 392 (1st Dep't), appeal dismissed, 68 N.Y.2d 807, 498 N.E.2d 437 (1986).
After Judge Evans referred the contempt motion to a special referee, Sassower was notified by the attorney for the receiver that he was required to appear before the referee for proceedings on the criminal contempt motion and cross-motions. Consistent with his behavior in prior contempt proceedings, Sassower claimed that the referee was disqualified from adjudicating the contempt proceedings and failed to appear.
The referee determined that the affidavits, motions, and cross-motions raised no issue of fact requiring a hearing, and in a 71-page report, he concluded that all of the arguments presented by Sassower's papers had been raised and rejected in prior proceedings and actions. Report of the Special Referee, In re Barr, No. 1816-1980, at 8 (Sup. Ct. N.Y. Co. May 1, 1985). He found that Sassower's wilful violation of court orders was "documented by the filing of court papers and matters that appear on the record, in ...