Justice Paul Baisley Jr. of New York State Supreme Court, who has issued a series of rulings against East Hampton Town regarding both East Hampton Town Airport and a 4,000-foot stretch of Napeague oceanfront popularly known as Truck Beach, retired on Aug. 30.
In a final act, dated the same day of his retirement, Justice Baisley referred the Southampton attorney Daniel Rodgers to the Grievance Committee for the Tenth Judicial District for disciplinary consideration. Mr. Rodgers represents multiple fishermen who were issued summonses for trespassing at Truck Beach in a 2021 act of civil disobedience after a panel of Appellate Division judges determined it was privately owned.
The justice’s open cases will be assigned to other judges, an official in the judge’s chambers said last week. These include the combined lawsuits brought by three groups against the town in which Justice Baisley issued a temporary restraining order enjoining the town from closing the airport or implementing restrictions on flight activity.
In addition to referring Mr. Rodgers to the grievance committee in his Aug. 30 ruling, Justice Baisley denied a trustees motion to clarify a June 2022 order that they are liable for civil and criminal contempt of the February 2021 Appellate Division ruling that property owners’ deeds indicate that they own the beach to the mean high-water mark. “Although defendants couch their application as a ‘motion to clarify’ the motion seeks to reargue this court’s June 30, 2022 order,” he wrote. A “motion for leave to reargue ‘shall be made within thirty days after service of copy of the order determining the prior motion and written notice of its entry,’ “ he wrote, and as the defendants’ motion was not issued within that window it is untimely.
The February 2021 ruling reversed much of a 2016 State Supreme Court decision that had been in the town and trustees’ favor. In that ruling, Justice Ralph Gazzillo, who has since retired, stated that an 1882 deed in which the trustees conveyed some 1,000 acres on Napeague “clearly reserved some rights ‘to the inhabitants of East Hampton’ and, arguably, the allowances for some public use.” The plaintiffs, he wrote, had not persuaded him of their ownership of the beach.
The 2021 reversal reignited a yearslong struggle pitting several property owners’ associations and individuals against the town, the trustees, and residents who for generations drove on, parked on, and otherwise enjoyed the stretch of beach. The property owners, in parallel lawsuits brought in 2009, contended that the deeds to their properties included the beach, citing the 1882 deed.
Justice Baisley’s Aug. 30 ruling also denied the property owners’ motion to hold the trustees in contempt. They “contend that the trustees have ‘actually ramped up their contempt of the injunction by taking it to an open rebellion against the Court’s authority,’ “ he wrote. They “contend that the trustees’ attorney, Daniel G. Rodgers, Esq., has defied the Court’s authority, insulted the Court, and encouraged the public to violate the injunction in a show of civil disobedience.”
Mr. Rodgers, however, does not represent the trustees. The trustees did pass a February 2022 resolution declaring their wish to align their interests with the town’s residents “to preserve their right to use the fishing preserve,” Justice Baisley wrote, “ ‘and then resolved to appoint their attorney to represent the trustees and the residents of the town who wish to use the trustees’ fishing reservation for commercial or recreational fishing,’ to bring any appropriate actions, and to enter into any appropriate joint defense agreements.” But “the court does not find it appropriate to hold the trustees liable for the acts of a nonparty attorney . . . who has not been retained to represent the trustees in this matter.”
“We are pleased that the judge rejected the plaintiffs’ efforts to impose additional contempt on the trustees for the simple act of requesting clarification of the court’s order,” Francis Bock, clerk of the trustees, said. “While we are disappointed he did not address the merits of the motion to clarify, we are confident in our position that the trustees did not at any time act in violation of any court order and we look forward to presenting that position in the Appellate Court.”
Justice Baisley cited several newspaper articles in which Mr. Rodgers promised more acts of civil disobedience akin to the two 2021 actions at the beach, during which fishermen and their supporters drove a caravan of trucks across the disputed stretch of beach before turning around and returning. It was during the second protest, in September 2021, that Marine Patrol officers issued summonses for trespassing to 14 of them.
In October, their cases were dismissed in Southampton Town Justice Court in Hampton Bays. Triumphant after the dismissals, Mr. Rodgers announced the “Stuart Vorpahl Sunday Afternoon Truck Beach Fishing Clinic,” named for the late bayman, town trustee, and defender of public access rights, which he said would be held at the beach, although no such event has taken place there. “The reason why the charges are being dismissed is because the prosecutor has no case,” he told his clients outside the courthouse. “And that’s simply because the homeowners have refused to cooperate.” None had filed a complaint.
At the time, Mr. Rodgers called the dismissals a victory for public access “because after today we’re going back to the beach.” The property owners, he said, “were willing to spend millions of dollars to get this result. But at the end of the day, we don’t care who owns the beach. We’ve never cared who owns the beach. We have the reservation, and that is a legal property right that belongs not just to baymen, not just to recreational fishermen, it belongs to 28,000 people who live in the Town of East Hampton.”
None of Mr. Rodgers’s clients in the trespassing matter have filed a complaint against him. Mr. Rodgers is “one of the finest human beings,” said Nat Miller, who was among the fishermen cited for trespassing in the 2021 event at the beach. “He fights for us for nothing, and he really does what he believes — and what I believe and the rest of the fishermen believe — is right. He does what’s right for the people, not for who gives him the most money. He’s a fine, fine human being, the best of the best.”
Nonetheless, citing three unrelated disciplinary cases and the State Bar Association’s Rules of Professional Conduct, Justice Baisley wrote that Mr. Rodgers “has demonstrated a continuing brazen pattern of misinforming and misleading his clients as to the status of this matter, [and] demonstrated disrespect to the Supreme Court and the Appellate Division.” Further, his conduct “is prejudicial to the administration of justice,” the judge wrote in referring him to the grievance committee.
Attorneys who fail to abide by the rules of professional conduct are subject to discipline, which can include suspension or loss of their licenses to practice law.
Mr. Rodgers was unapologetic in the wake of the ruling. Justice Baisley, he wrote in a statement on Friday, “is seeking to have me disciplined and potentially disbarred over a half-dozen newspaper articles submitted by a group of wealthy oceanfront homeowners, despite the fact that no professional complaints have been lodged against me and I am not a party to this action.”
“The homeowners argue that my conduct and speech is encouraging an ‘open rebellion against the court’s authority’ when the fishermen allegedly violated an injunction that does not apply to them,” he continued. “It’s an injunction against the town and trustees. We are not, nor have we ever been a party to this case, as noted by Judge Baisley himself.” In his view, Justice Baisley misread the Appellate Court’s 2021 decision, “which clearly upheld the 1882 reservation that gives the right of all citizens of East Hampton to traverse that beach for any fishing-related activity.”
That 2021 ruling said “that the town can’t continue to issue permits to the public to drive on what is now private property,” he wrote. “Permits are no longer required because this is private property that we have a legal right to be on to fish.” The Appellate Division, he added, “never said no vehicles or trucks on the beach in their decision,” only that the town cannot issue permits for them.
“I stand by every word I have uttered in the half-dozen newspaper articles cited by Judge Baisley,” Mr. Rodgers wrote. “If the homeowners object to anyone being on their beach, they have the same remedy as every other citizen. File a complaint for trespass, which they steadfastly refuse to do because they know they will lose in any court of law under the fishing reservation.”
Noting that he represents the fishermen pro bono, he said that he took them on as clients “because these homeowners were threatening the ability of these fishermen to provide for their families (by taking a beach they have fished on for over three centuries).” In seeking disciplinary action against him, he said, “now they are threatening my ability to provide for my own family.”