240 Conn. 157 | Conn. | 1997
Opinion
Former Superior Court Judge Robert C. Flanagan appeals from the decision of the judicial review council (review council) to censure him publicly for engaging in a consensual sexual relationship with a married court reporter who regularly had been assigned to his courtroom over the course of their relationship.
The review council’s investigation into Flanagan’s conduct pursuant to General Statutes § 51-511 (a)
After the probable cause proceedings at which Ross, Flanagan and several other witnesses testified, the review council charged Flanagan with having violated canons 1 and 2A of the Code of Judicial Conduct and § 51-51i (a) (2) by “engag[ing] in a consensual sexual relationship with a married court employee . . . .”
After a public hearing conducted pursuant to General Statutes § 51-5H (c), at which only Ross, Moira Butler and Shepard Sherwood
Flanagan claims that the review council improperly: (1) charged him with consensual sexual misconduct on the basis of evidence adduced at the probable cause hearing even though Ross’ written complaint had been limited to forced or coerced sexual misconduct; (2) concluded that he had violated canons 1 and 2A without any expert testimony to support that conclusion; (3) concluded that he had engaged in a “wilful” violation of canons 1 and 2A in the absence of evidence that he had the specific intent to violate those canons; (4) failed to dismiss the proceedings against him in light of Ross’ violation of the confidentiality provision of § 51-51Z (a); (5) considered evidence beyond the scope of the
Before analyzing Flanagan’s procedural and substantive claims on appeal, however, we need first to set out the appropriate standards of review for the factual findings and legal conclusions of the review council. In reviewing the factual determinations of the review council, we “must take into account the risk that unfounded charges of judicial misconduct will impair society’s interest in an independent judiciary. We must therefore depart from our normal rule of deference to factfinding by trial courts and administrative agencies. We have a nondelegable responsibility, upon an appeal, to undertake a scrupulous and searching examination of the record to ascertain whether there was substantial evidence to support the council’s factual findings.” (Internal quotation marks omitted.) In re Zoarski, 227 Conn. 784, 789-90, 632 A.2d 1114 (1993); Council on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 192, 476 A.2d 1041 (1984).
As to the review council’s ultimate legal conclusion that the facts found support a finding of a violation of one or more of the canons of the Code of Judicial Conduct, we are persuaded that our review should be de novo. Pursuant to the constitution of Connecticut, article fifth, as amended by article eleven of the amendments, all judges within the state “may, in such manner as shall by law be prescribed, be removed or suspended by the supreme court.” In addition to the authority it bestows upon this court, article fifth, as amended by article eleven of the amendments, also permits the General Assembly to create a judicial review council with the power to censure or to suspend any judge for a period not to exceed one year. The constitutional provisions relating to the disciplinary powers of this court
I
Flanagan first claims that the review council was required to dismiss the proceedings against him when it found that Ross’ allegations of a forced or nonconsen-sual sexual relationship were not supported by probable cause. Flanagan argues that, pursuant to the due process clause of the fourteenth amendment to the United States constitution
To address this claim, it is necessary for us to examine the statutory and regulatory procedures governing judicial discipline and how those procedures were employed in this case. The statutory and regulatory scheme pertaining to judicial discipline divides the procedure to be followed by the review council into two discrete stages: (1) an investigatory stage, during which the review council, acting either on a formal complaint or its own motion, may hold a confidential hearing to determine whether probable cause exists to believe that a judge has engaged in misconduct; and (2) in the event that the review council determines that probable cause does exist, an adjudicatory stage in the form of a public hearing to determine whether a violation has occurred. General Statutes § 51-5U;
Flanagan elected to appear at the hearing with counsel, to cross-examine the witnesses presented by the executive director and to present his own witnesses and testify on his own behalf. In his testimony, Flanagan admitted that he had had a consensual sexual relationship with Ross for approximately three and one-half years and that she had been assigned to his courtroom for much of that time. Flanagan denied that he had made any threats or that he had abused his position of authority in any way. After the probable cause hearing, the review council formally charged Flanagan with two counts of misconduct alleging that Flanagan’s “consensual sexual relationship with a married court employee” had violated canons 1 and 2A of the Code of Judicial Conduct.
In response to the review council’s issuance of formal charges, Flanagan’s counsel sent a letter to the executive director of the review council stating that it was Flanagan’s position that, by issuing charges on grounds not specifically alleged in Ross’ complaint, the review council had initiated a new “investigation” and that Flanagan was entitled to a new probable cause hearing based on that conduct rather than proceeding immediately to the formal hearing stage. After stating that position, however, Flanagan’s counsel wrote: “Never
Flanagan now argues, for the first time, that, “ [h]aving found that [he] did not violate the code under the conduct alleged [in the initial citizen complaint] — rape and forced sex — the [review council] was legally obliged to dismiss the complaint for lack of probable cause.” Flanagan claims that the United States Supreme Court’s decision in In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, modified on other grounds, 392 U.S. 919, 88 S. Ct. 2257, 20 L. Ed. 2d 1380 (1968), is dispositive of this claim. We reject this argument on two alternate grounds: (1) Flanagan explicitly waived the claim in his letter to the executive director of the review council; and (2) even in the absence of waiver, Ruffalo does not require that a judge be given notice, during the investigatory stage of the proceedings against him, of each of the precise charges upon which he may be sanctioned.
Moreover, even if we were to address Flanagan’s claim under Ruffalo, we are not persuaded that he could prevail. Ruffalo had been an active trial lawyer who was counsel in many actions against railroad companies under the Federal Employers’ Liability Act. In re Ruf-falo, supra, 390 U.S. 546. After an investigation into Ruffalo’s handling of those cases, the Association of American Railroads made several charges of impropriety to the local bar association. Id. The Ohio board of commissioners on grievances and discipline (Ohio board) subsequently filed formal charges against Ruf-falo. Id. The Ohio board charged Ruffalo with twelve counts of misconduct, two of which accused Ruffalo of soliciting clients through an agent, Michael Orlando. Id. At the formal hearings on the charges, both Ruffalo and Orlando testified that Orlando had not solicited clients but that he had merely investigated certain complaints, some of which involved Orlando’s employer, the Baltimore & Ohio Railroad. Id. After hearing that testimony, the Ohio board added a thirteenth count of misconduct to its charge against Ruffalo based upon his hiring of Orlando to investigate Orlando’s employer. Id. A motion to strike the additional count was denied, and Ruffalo was given an extended continuance in order
On the basis of the record and findings of the Ohio Supreme Court, the Sixth Circuit Court of Appeals subsequently disbarred Ruffalo from practice in that court on the grounds charged in the thirteenth count by the Ohio board. In re Ruffalo, 370 F.2d 447 (6th Cir. 1966). The United States Supreme Court granted certiorari to review the Sixth Circuit disbarment. In re Ruffalo, 389 U.S. 815, 88 S. Ct. 30, 19 L. Ed. 2d 66 (1967).
The United States Supreme Court examined the procedure afforded Ruffalo in the state courts because, in determining whether disbarment by a state should be followed by disbarment on the same grounds in a federal court, the federal court must consider whether “ ‘the state procedure from want of notice or opportunity to be heard was wanting in due process.’ ” In re Ruffalo, supra, 390 U.S. 550, quoting Selling v. Radford, 243 U.S. 46, 51, 37 S. Ct. 377, 61 L. Ed. 585 (1917). The court concluded that, because attorney discipline proceedings are quasi-criminal in nature, an attorney is entitled by due process to reasonable notice of the charges against him “before the proceedings commence.” (Emphasis added.) In re Ruffalo, supra, 390 U.S. 551. The court reasoned that the proceedings could “become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.” Id., 551.
Since Ruffalo, we have affirmed that an attorney subject to disciplinary proceedings must be given reasonable notice of the charges against him or her “before the proceedings commence”; (emphasis added) Statewide
We are guided by our decision in Statewide Grievance Committee v. Presnick, 215 Conn. 162, 168-70, 575 A.2d 210 (1990), in which we addressed a procedural due process claim in the context of attorney disciplinary proceedings and distinguished between the different process due at the investigatoiy and adjudicatory stages of such proceedings. Presnick had appealed a decision of the Superior Court suspending him from the practice of law for a period of one year. Id., 163. He claimed, inter alia, that he had been denied due process of law because, at the stages preceding his formal presentment to the Superior Court, he had not been given the opportunity to cross-examine witnesses or to present his own testimony. Id., 168. We rejected Presnick’s due process claim because the stages of the disciplinary process at which the alleged procedural defects occurred “served only as a predicate to a decision to file a presentment against the defendant in the Superior Court. The presentment that followed permitted the defendant a hearing in Superior Court according to the customary rules of evidence, and at which time he had the right to be present, to be represented by counsel if he chose, to cross-examine witnesses and to present evidence in his own behalf.” Id., 170. We concluded that the process given to Presnick, “when viewed in its totality, was adequate to meet the procedural safeguards required by the federal and state constitutions.” Id.
Several other courts have drawn the distinction between the process due at the investigatory and adjudicatory stages of judicial disciplinary proceedings that we draw today. In the most analogous case, McCartney v. Commission on Judicial Qualifications, 12 Cal. 3d 512, 519, 526 P.2d 268, 116 Cal. Rptr. 260 (1974), the California Supreme Court concluded that a judge who had been the subject of disciplinary proceedings had not been denied due process when he was not apprised of the commission’s preliminary investigation into citizen complaints against him. The court concluded that, at the investigatory stage, “the Commission [on Judicial Qualifications] clearly has not yet commenced to perform any adjudicatory function, but is merely attempting to examine citizen complaints in a purely investigatory manner. Accordingly, notice to the judge under investigation as to the nature of the complaints against him is not compelled as a matter of due process.” Id. Similarly, other jurisdictions have rejected other claimed due process rights at the investigatory stage of judicial disciplinary proceedings, including: the right to discovery; In re Petition to Inspect Grand Jury Materials, 576 F. Sup. 1275, 1284 (S.D. Fla. 1983) (“[during the investigatory stage, the required procedural protections are minimal at most”); the right to be present; In the Matter of Troy, 364 Mass. 15, 24, 306 N.E.2d 203 (1973) (investigation before special commissioner
We conclude that when a citizen complaint against a judge is brought to the attention of the judicial review council, the council has authority subsequently to charge that judge with a violation of § 51-5H based on any conduct of the judge revealed by its investigation into the complaint, whether or not the conduct forming the basis of the charge was contained specifically in the original complaint.
Two interests must be accommodated injudicial disciplinary proceedings: (1) the review council must have
II
Flanagan next asserts that, as a matter of law, the lack of any expert testimony before the review council that a consensual sexual relationship with a married court reporter violates canons 1 and 2A of the Code of Judicial Conduct prevents the review council from finding a wilful violation of those canons in violation of § 51-5H (a) (2). Flanagan claims that our previous decisions in In re Zoarski, supra, 227 Conn. 793-94, and Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989), require expert testimony in judicial review proceedings if a majority of the decisionmaking body is not composed of “experts,” i.e., either judges or lawyers. We disagree.
Zoarski addressed the need for expert testimony in judicial review proceedings in light of our statement
This case differs from Zoarski in that, since Zoarski, the legislature has added an additional layperson to the review council so that the council is now composed of the same number of laypersons as judges and lawyers. Public Acts 1992, No. 92-160, § 2. Because of the present representational balance on the review council, we are now asked to determine whether the “majority of experts” rule expressed in Levinson applies to this case. We conclude that it does not.
Levinson was drawn from and is part of a body of administrative law jurisprudence that addresses the issue of whether private actors can have their professional or trade competence judged by laypersons who ordinarily would not possess the specific professional or trade expertise necessary to make such a judgment without an expert’s opinion. Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. 525. Such concerns about professional or trade expertise are simply not present here. The issues before the review council were whether Flanagan, by engaging in a consensual sexual relationship with a married court reporter who
Unlike Santopietro, this is not a case in which the claims to be decided “are akin to allegations of professional negligence or malpractice, which we have previously defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990).” (Internal quotation marks omitted.) Santopietro v. New Haven, supra, 239 Conn. 226. The sole issue before the review council was whether a judge’s consensual sexual relationship with a married court reporter who regularly had been assigned to his courtroom either compromises the integrity and independence of the judiciary or less
Ill
Flanagan next argues that in order for a judge to be disciplined for a “wilful violation of . . . any canon of judicial ethics” under § 51-Sli (a) (2), the judge must have known “that his alleged conduct was forbidden under the Canons and that he acted with the specific intent to violate said Canons.” The review council, on the contrary, contends that, in order to be disciplined under § 51-5H (a) (2), the judge need only have intended to engage in the acts for which he is disciplined without necessarily having specific knowledge that such conduct amounts to a violation of one of the canons. We agree with the review council.
“ ‘[Wjillful’ ” is a word “ ‘of many meanings, its construction often being influenced by its context.’ ” Screws v. United States, 325 U.S. 91, 101, 65 S. Ct. 1031, 89 L. Ed. 1495 (1943). In the context of the subsection of our judicial discipline statute that codifies the canons of the Code of Judicial Ethics, the term “wilful” cannot reasonably be read to require a specific intent to violate the canons given the necessarily broad and flexible nature of those canons. In the Matter of Young, 522 N.E.2d 386, 388 (Ind. 1988) (canons 1 and 2 notunconsti-
We are persuaded by an opinion of the Supreme Court of Oregon construing a constitutional provision authorizing judicial discipline for a “ ‘[w]ilful violation of any rule of judicial conduct as shall be established by the Supreme Court.’ ” In re Gustafson, 305 Or. 655, 657, 756 P.2d 21 (1988). In response to the sanctioned judge’s argument that the term “wilful” required a specific intent to violate a given rule, the Oregon court stated that “ignorance of the governing standards of conduct themselves no more excuses judges than those whom they judge.” Id., 660. A judge may be sanctioned for a wilful violation of one of the canons of judicial conduct if he intended to engage in the conduct for which he is sanctioned “whether or not [he] knows that he violates the rule.” Id.
Any other rule would violate the canon of statutory construction that we will avoid constructions that lead to absurd, unworkable or bizarre results. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). To require that a judge subjectively have known that his conduct was in violation of the canons of judicial conduct would make it extremely difficult, if not impossible, to discipline a judge pursuant to § 51-51Í (a) (2) for violating those canons. Given the broad and flexible nature of the canons, particularly canons 1 and 2A at issue here, competent proof of a judge’s specific intent to violate those canons would be nearly impossible to obtain in the absence of a previous authoritative interpretation of the canons, presumably from this court, that certain specific conduct was a
IV
Flanagan next contends that the judicial review council should have dismissed the charges against him because, he argues, Ross violated the confidentiality provision of § 51-517 (a)
Section 51-51/ provides that probable cause hearings shall be confidential and that persons called by the review council for the purpose of providing information shall not disclose their “knowledge of such investigation” to third parties prior to the review council’s probable cause decision. In In re Zoarski, supra, 227 Conn. 794-95, we stated that violations of the confidentiality provision of § 51-51/ (a) do not require dismissal of the charges lodged against a judge “[i]n the absence of allegation or proof that [the] . . . public disclosures had any impact whatsoever on the fairness of the council’s deliberations . . . .” We found the judge’s argument in Zoarski unpersuasive because he had not proved, or even alleged, that the confidentiality breaches in that case had affected the fairness of the review council’s deliberations in any way.
Flanagan seeks to distinguish the present case from Zoarski on the simple basis that, in the present case, he at least alleges that the confidentiality breaches affected the fairness of the review council’s deliberations. We conclude that the mere allegation that a § 51-51/ confi
V
Flanagan next asserts that the review council improperly considered evidence of a coerced or forced sexual relationship at the formal hearing where, he argues, the testimony should have been limited to testimony pertaining to a consensual sexual relationship. While we agree with Flanagan that any evidence of a forced or coerced sexual relationship should have been excluded from the formal hearing, Flanagan has failed to meet his burden of proving that he was harmed by the admission of any such evidence.
The following facts are relevant to this issue. Prior to the formal hearing, Flanagan filed a motion in limine
Thereafter, Ross again attempted to testify that her relationship with Flanagan had been nonconsensual. Her testimony in that vein consistently was stricken from the record. In response to questions about whether she had had a consensual sexual relationship with Flanagan, Ross twice responded that she had not. Last, Flanagan points to testimony where, before being interrupted by Flanagan’s counsel, Ross twice began to testily that Flanagan had “demanded” that she go to his house. In response, the chairperson of the review council instructed counsel to wait until the response had been completed before objecting. Ross then amended her response and did not include any allegation that Flanagan had “demanded” her attendance at his house. Flanagan then objected and was overruled.
Even if we were to assume that there was improper testimony before the review council regarding noncon-sensual sexual relations, Flanagan bear's the burden of proving that he was “substantial [ly] . . . prejudiced” by the testimony. Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979). He cannot
VI
We turn finally to Flanagan’s substantive claim. He argues that, as a matter of law, it is not a violation of either canon 1 or 2A for a judge to have had a three and one-half year consensual affair with a married court reporter regularly assigned to his courtroom over the course of the affair. We disagree. We conclude that his conduct was in violation of canons 1 and 2A, and that public censure, the least severe of the possible sanctions, is appropriate.
Canon 1 provides that “[a]n independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.” Canon 2A provides that “[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The official
“Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved .... There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. . . . Judges must assiduously avoid those contacts which might create even the appearance of impropriety.” (Citation omitted.) In the Matter of Lonschein, 50 N.Y.2d 569, 572, 408 N.E.2d 901, 430 N.Y.S.2d 571 (1980). “The duty to avoid creating an appearance of impropriety is one of taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of the thinking public in the administration of justice.’ In the Matter of Bonin, 375 Mass. 680 [706-707, 378 N.E.2d 669] (1978).” In re Inquiry Concerning a Judge, supra, 788 P.2d 723.
Flanagan notes that in 1991, a proposal was made to amend the official commentary to read, in part, that
In fairness to Flanagan, we must emphasize that there was absolutely no evidence in this case that any matter before him was ever actually compromised or mishandled in any way. Rather, the evidence adduced at both the probable cause hearing and at the formal hearing indicates that Flanagan was a conscientious, fair minded and widely respected judge in the eyes of his peers as well as those who appeared before him. While such an otherwise exemplary record is certainly rele
The decision of the review council is affirmed.
In this opinion the other justices concurred.
Although public censure was the only sanction imposed by the review council and therefore the only sanction that we review, we note that the Governor did not renominate Flanagan to serve as a Superior Court judge when his eight year term expired on March 8, 1996, during the pendency of the review council’s consideration of the case.
General Statutes § 51-5 In provides: “Authority of council, (a) The Judicial Review Council may, after a hearing pursuant to subsection (c) of section 51-5 It, (1) publicly censure the judge, compensation commissioner or family support magistrate, (2) suspend the judge, compensation commissioner or family support magistrate for a definite term not to exceed one year, (3) refer the matter to the Supreme Court with a recommendation that the judge or family support magistrate be suspended for a period longer than one year, (4) refer the matter to the Supreme Court with a recommendation that the judge or family support magistrate be removed from office or to the Governor with a recommendation that the compensation commissioner be removed from office or (5) exonerate the judge, compensation commissioner or family support magistrate of all charges.
“(b) If public censure is recommended, the chairman shall prepare and forward the censure in writing to the judge, compensation commissioner or family support magistrate being censured, the Chief Justice, the Chief Court Administrator and the joint standing committee on judiciary, at least ten days prior to the publication of the censure. The censure shall be a
“(c) If the council exonerates a judge, compensation commissioner or family support magistrate, a copy of the proceedings and report of the council shall be furnished to the judge, compensation commissioner or family support magistrate.”
General Statutes § 51-51Í provides in relevant part: “Grounds for removal, suspension and censure, (a) In addition to removal by impeachment and removal by the Governor on the address of two-thirds of each house of the General Assembly as provided in the Connecticut constitution, a judge shall be subject, in the manner and under the procedures provided in this chapter to censure, suspension or removal from office for (1) conduct prejudicial to the impartial and effective administration of justice which brings the judicial office in disrepute, (2) wilful violation of section 51-39a or any canon of judicial ethics, (3) wilful and persistent failure to perform his duty, (4) neglectful or incompetent performance of his duties, (5) final conviction of a felony or of a misdemeanor involving moral turpitude, (6) disbarment or suspension as an attomey-at-law, (7) wilful failure to file a financial statement or the filing of a fraudulent financial statement required under section 51-46a, or (8) temperament which adversely affects the orderly carriage of justice. . .
Canon 1 of the Code of Judicial Conduct provides: “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
Canon 2A of the Code of Judicial Conduct provides: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
General Statutes § 51-51Í provides in relevant part: “(a) Except as provided in subsection (d), the Judicial Review Council shall investigate every written complaint brought before it alleging conduct under section 51-51Í, and may initiate an investigation of any judge, compensation commissioner or family support magistrate if (1) the council has reason to believe conduct
“(b) The council shall, not later than three business days after the termination of such investigation, notify the complainant, if any, and the judge, compensation commissioner or family support magistrate that the investigation has been terminated and the results thereof. If the council finds that conduct under section 51-Bli has not occurred, but the judge, compensation commissioner or family support magistrate has acted in a manner which gives the appearance of impropriety or constitutes an unfavorable judicial or magisterial practice, the council may issue an admonishment to the judge, compensation commissioner or family support magistrate recommending a change in judicial or magisterial conduct or practice. If an admonishment is issued, the council shall inform the complainant, if any, that an admonishment was issued, provided the admonishment is the result of misconduct alleged in the complaint and the substance of the admonishment shall not be disclosed.
“(c) If a preliminary investigation indicates that probable cause exists that the judge, compensation commissioner or family support magistrate is guilty of conduct under section 51-Bli, the council shall hold a hearing concerning the conduct or complaint. All hearings held pursuant to this
“(d) No complaint against a judge, compensation commissioner or family support magistrate alleging conduct under section 51-51Í shall be brought under this section but within one year from the date the alleged conduct occurred or was discovered or in the exercise of reasonable care should have been discovered, except that no such complaint may be brought more than three years from the date the alleged conduct occurred.
“(e) Notwithstanding the provisions of subsections (a) and (b) of this section, the council shall disclose any information concerning complaints received by the council on and after January 1, 1978, investigations, and disposition of such complaints to the legislative program review and investigations committee when requested by the committee in the course of its functions, in writing and upon a majority vote of the committee, provided no names or other identifying information shall be disclosed.
“(f) On and after December 19, 1991, any judge, compensation commissioner or family support magistrate who has been the subject of an investigation by the Judicial Review Council as a result of a complaint brought before such council may request that such complaint, investigation and the disposition of such complaint be open to public inspection.”
The two formal charges brought against Flanagan are as follows:
“1. Between March 1, 1992, and October 30, 1995, the Honorable Robert C. Flanagan engaged in a consensual sexual relationship with a married court employee, which conduct resulted in his failure to observe high standards of conduct so that the integrity and independence of the judiciary might be preserved, in violation of Canon 1 of the Code of Judicial Conduct and Section 51-5H (a) (2) of the Connecticut General Statutes.
“2. Between March 1, 1992, and October 30, 1995, the Honorable Robert C. Flanagan engaged in a consensual sexual relationship with a married court employee, which conduct resulted in his failure to act at all times in a manner that promotes public confidence in the integrity and impartiality*163 of the judiciary, in violation of Canon 2A of the Code of Judicial Conduct and Section 51-511 (a) (2) of the Connecticut General Statutes.”
Moira Butler is the affirmative action coordinator for the Judicial Branch. Shepard Sherwood was an assistant public defender assigned to the Superior Court in geographical area number six in New Haven.
General Statutes § 51-51j provides in relevant part: “(a) The Supreme Court may remove or suspend any judge. . . for any period upon recommendation of the Judicial Review Council, established under section 51-51k, or on its own motion. Upon receipt of such recommendation or on its own motion, the Supreme Court shah make an investigation of the conduct complained of and hold a hearing thereon, unless such an investigation and hearing has been held by the Judicial Review Council. . . .”
See footnote 2.
General Statutes § 51-51r provides: “Appeals, rules. Any judge or family support magistrate aggrieved by any decision of the Judicial Review Council may appeal the decision to the supreme court in accordance with such procedure for the appeal as the Supreme Court shah adopt by rule.”
In addition, the legislature may, if it deems it appropriate, institute impeachment proceedings under article fifth, § 2, of the Connecticut constitution.
We note that at least four states have established other hybrid standards that attempt to incorporate the notion of “independent review” as well as some deference to the legal conclusions of then- equivalent to our review council. See Ryan v. Commission on Judicial Performance, 45 Cal. 3d 518, 530, 754 P.2d 724, 247 Cal. Rptr. 378 (1988) (“[independent] review” but “accord great weight to the legal conclusions of the Commission”); In re McAllister, 646 So. 2d 173 (Fla. 1994) (“ ‘The findings and recommendations. of the Judicial Qualifications Commission are of persuasive force and should be given great weight. However, the ultimate power and responsibility in making a determination rests with this Court.’ ”); In re Hill, 152 Vt. 548, 556, 568 A.2d 361 (1989) (Supreme Court is final arbiter but “great weight” accorded judicial conduct board’s findings and conclusions); In re Kaiser, 111 Wash. 2d 275, 279, 759 P.2d 392 (1988) (“de novo” review on record while according “considerable weight” to findings and recommendation of commission). The California Supreme Court has recently justified its reliance on the legal conclusions of its commission on judicial performance on the basis of that commission’s expertise. Dodds v. Commission on Judicial Performance, 12 Cal. 4th 163, 168, 906 P.2d 1260, 48 Cal. Rptr. 2d 106 (1996). Such ajustificaüon is inappropriate here because our review council, composed of three judges, three lawyers and six members with no legal training, has no more expertise in matters of judicial ethics than does this court. Because our constitutional and statutory scheme gives this court sole authority to impose discipline in the most serious cases and either sole authority or at least power of review in less serious cases, we conclude that deference to the review council’s conclusion that certain conduct violates § 51-5H is inappropriate.
We also note that the “substantial evidence” standard articulated by this court in In re Zoarski, supra, 227 Conn. 789-90, and Council on Probate Judicial Conduct re: James H. Kinsella, supra, 193 Conn. 192, was grounded in the review council’s superior position to assess credibility and thus was
Flanagan raises no independent state constitutional argument.
See footnote o.
Section 51-51k-6 of the Regulations of Connecticut State Agencies provides: “Procedure on complaints
*170 “The procedure on a complaint shall be an investigation to determine whether probable cause, to believe that the person being investigated is guilty of conduct set forth in section 51-5li of the General Statutes, exists, and an open hearing if such probable cause is found to exist.”
The review council points out that, in one statement in her complaint, Ross simply alleged that “[t]here was sex between [herself] and Judge Flanagan on countless occasions over the past four years.” The review council argues, on the basis of this statement in isolation, that the initial complaint “did not . . . allege only rape and forced sex.” We disagree. The above statement is preceded in the same paragraph by allegations that Flanagan followed her, and succeeded in the same paragraph by allegations that Flanagan “demanded” that she have sexual intercourse with him and that he had become increasingly “threatening” toward her. The rest of the statement similarly is replete with allegations of threats and coercion. When read as a whole, it is clear that the gravamen of the initial complaint was that Flanagan had coerced Ross to have a sexual relationship with him for four years.
See footnote 5.
Section 51-51k-5 of the Regulations of Connecticut State Agencies provides in relevant part: “The judge . . . may, within twenty days after receipt of the notice of the complaint . . . send a written reply to the complaint to the Council. ...”
The letter from Flanagan’s attorney to the executive director of the review council provided in relevant part: “The investigation of Judge Flanagan was based on the written complaint brought by Ms. Ross. The [review council] did not find probable cause as to the allegations of forced sex/rape contained in the complaint. The investigation which took place on February 15, 16 and 21 was not initiated by the [review council], but, rather, was initiated by the written complaint of Ms. Ross.
“Therefore, when the Council issued its ‘probable cause/consenting sex’ comment, it was initiating a new investigation.
“Whereas a formal hearing has been set for [April 16, 1996], this hearing should properly be a probable cause hearing on the new and different investigation initiated by the [review council], namely the investigation of consenting sex. Nevertheless, we want to and will treat the hearing as a formal hearing.
“My reason for sending this letter is that it seems to me reasonable that, pursuant to [General Statutes] § 51-51q (a), the [review council] recommend the nomination of the Honorable Robert C. Flanagan for reappointment.
“May I have your thoughts?” (Emphasis in original.)
This conclusion is consistent with § 51-51/ (c), which provides for the adjudicatory hearing: “If a preliminary investigation indicates that probable cause exists that the judge ... is guilty of conduct under § 51-51Í, the council shall hold a hearing concerning the conduct or complaint." (Emphasis added.) This language and structure supports the conclusion that the initial investigation is triggered by allegations or disclosure of judicial misconduct, but that the formal adjudicatory phase focuses on the facts of the judicial conduct that the investigation yields.
Flanagan was permitted to introduce the opinion of an ethics expert. That opinion, however, was rejected by the review council as “not persuasive.”
Even if we were to accept Flanagan’s argument that a “majority of experts” w as necessary in this case to avoid the need for expert testimony, Flanagan concedes that judges would be such “experts” and, therefore, our de novo review would be sufficient to satisfy the rule. See In re Zoarski, supra, 227 Conn. 794.
See footnote 5.
Flanagan does not challenge the review council’s authority to conduct both the preliminary investigation to determine probable cause and the formal hearing. In any event, such due process claims have been routinely rejected. See, e.g., In re Elliston, supra, 789 S.W.2d 472; In the Matter of Deming, supra, 108 Wash. 2d 105.
For instance, such a person could, we believe, reasonably conclude that there was an impermissible risk of Ross’ failing to render an accurate record of the proceedings in Flanagan’s courtroom — either because of their relationship or because of an acrimonious termination of that relationship.
