Complaint #2: Contempt & Incarceration
January 8, 2025
The Commission on Judicial Conduct
61 Broadway, Suite 1200
New York, New York 10006
CJC@cjc.ny.gov
We respectfully submit this complaint concerning Judge Kathleen Waterman Marshall regarding her alleged failure to recognize the right to counsel for unrepresented litigants facing contempt. These litigants are thereby set on a path for wrongful incarceration at Rikers Island. This complaint updates the prior complaint filed in August 2024, which addressed the same issue of the right to counsel when facing contempt. Since that filing, two more pro se parties are at risk of wrongful imprisonment.
New York recognizes the right to counsel in contempt matters. This right is so fundamental that appellate courts reversed the lower court and ordered a new hearing when a party was deprived of this right (see Hoffman v Hoffman [220 AD3d 639], Matter of Worsdale v Holowchak [170 AD3d 1027] and Matter of Goodine v Evans [183 AD3d 649]). The Appellate Division and a New York support magistrate have provided examples of the due process disclosures and “search inquiry” required of judges (see Carney v Carney [160 AD3d 218] or Self-Representation: A Right To Be Reckoned With). Legal representation “shall be provided at the first court appearance or immediately following the request for counsel, whichever is earlier,” and reasons for denial shall be documented in writing along with the procedure for reconsideration (see Uniform Rules for the Family Court § 205.19). In addition, judges must obtain a knowing, voluntary waiver of this right from the unrepresented, i.e., pro se, party before the proceeding can be advanced.
Judge Waterman and her clerks (the “Court”) have allegedly failed to follow these procedures across many cases. In summary, we allege that:
The Court never advised parties of their right to counsel, of their right to an adjournment, or of their right to receive appointed counsel;
The Court never conducted a “search” inquiry;
Litigants never waived their right to counsel;
The Court forced litigants to proceed without counsel; and
When litigants requested counsel, the Court denied it.
As detailed in the enclosed exhibit, the record across nine cases since 2023 paints an alarming picture. Judge Waterman allegedly manufactured contempt to set up unrepresented parties – all fathers – for wrongful imprisonment. The record does not reveal a single instance when the Court adhered to due process. Instead, the Court stayed silent on the right to counsel and advanced the proceeding. The record reveals many times when counsel was delayed or denied. In some cases, parties were immediately arrested. In other cases, counsel was appointed after the party was found in contempt. The record does not reveal a single time when the Court documented in writing the reasons for denying counsel along with a process for reconsideration.
This is especially troubling because Judge Waterman’s alleged bias against pro se parties, especially fathers, was flagged previously. In November 2022, in response to a complaint filed with the court administration, Judge Waterman recused herself after reportedly attempting to help mother’s counsel prejudice the rights of the pro se father.
Today, we understand that the CJC received a complaint about Judge Waterman in January 2023 and then received another complaint in October 2023. Starting in April 2024, many litigants – including eight litigants who were allegedly deprived of counsel when facing contempt – filed complaints with the CJC. The absence of a response to these complaints has led to families suffering significant irreparable harm – harm that could have been avoided.
Wrongful contempt and incarceration may be the most troubling of all the allegations against Judge Waterman. Because New York does not impose the death penalty, imprisonment is the most severe punishment a judge can impose. Therefore, we believe that anyone who knowingly disregards these laws should be removed from the bench and the practice of law.
We respectfully request access to the disciplinary process related to this complaint. We reserve all rights, especially those afforded under the First Amendment, regarding this complaint.
Thank you for your attention.
Respectfully submitted,
The Litigants of Waterman Watch
cc:
Hon. Brad Hoylman-Sigal, Senator
Hon. Charles Lavine, Assemblymember