227 Conn. 784 | Conn. | 1993
This appeal challenges the propriety of the suspension of a judge of the Superior Court for judicial misconduct. Pursuant to General Statutes § 51-51Í,
The council made the following unchallenged findings of fact with respect to the second charge. Before becoming a judge, Judge Zoarski, a resident of Bran-ford, was one of three partners in a partnership known as Ramzey Associates and was counsel for the partnership. The partnership owned land in Branford that abutted the Soffer poultry farm. Stuart Softer, the complainant in these proceedings, has operated the Soffer family farm since 1977.
In or after 1977, several controversies arose between the partnership and the Soffer family, in part because the partnership sought to develop its property for a subdivision of homes. These disagreements concerned: (1) a claim by Joseph Soffer, Stuart Soffer’s father, and Jacob Soffer, Stuart Soffer’s uncle, that the Soffer family farm had a right-of-way over the partnership property; (2) a dispute about the compliance of improve
On July 30, 1990, the Branford police submitted to Judge Zoarski an arrest warrant that charged Stuart Soffer with littering. The affidavit accompanying the warrant recited that the alleged littering consisted of drippings of chicken manure and feathers from a “Soffer poultry farm truck” onto a public road. The affidavit also described the location of the Soffer poultry farm. The maximum fine for the charge of littering was $250. Judge Zoarski signed the arrest warrant and, sua sponte, added a bond of $1000.
On the basis of this factual record, the council determined that there was clear and convincing evidence that Judge Zoarski, when he signed the warrant, “knew or should have know[n of] the history of contentious relations and litigation with the Soffers and their poultry farm.” He was, therefore, required “to disqualify himself from any participation in the Soffer arrest.” Further, “[t]he respondent also knew or should have known that the requirement of the $1000 bond would have required Stuart Soffer to spend some time in the Branford jail pending arrangements for the bond.”
Judge Zoarski challenges the validity of his suspension on six grounds. He maintains that the council: (1) lacked sufficient evidence to support a finding of judicial misconduct with respect to either of the charges against him; (2) lacked the authority to render a judgment of judicial misconduct without the presentation of expert evidence about the relevant standards; (3) was compelled to dismiss the proceedings against him because Stuart Soffer, in violation of the confidentiality requirement of General Statutes § 51-5N (a),
I
Judge Zoarski’s first contention is that the council did not have clear and convincing evidence to support its finding that he had engaged in judicial misconduct. Although he challenges the sufficiency of the evidence on both of the charges against him, we need only decide the sufficiency of the evidence to sustain the second charge, i.e., that he had engaged in conduct that, in violation of § 51-Bli (a) (1), was “prejudicial to the impartial and effective administration of justice [so as to bring] the judicial office in disrepute.”
Well established principles govern this court’s review of a decision of the council that a Superior Court judge has engaged in misconduct warranting judicial discipline. “[0]ur review is not de novo. We cannot assess the credibility of witnesses. . . . Nonetheless, our review must take into account the risk that unfounded
*789 “(i) regulations. The judicial review council shall adopt regulations in accordance with the provisions of chapter 54 to establish rules and procedures for the council in the discharge of its duties under this chapter and to provide standards for the identification of and procedures for the treatment of conflicts of interest for council members, which standards shall require that any professional or ethical codes of conduct shall apply to any professional member of the council subject to such codes of conduct.”
On the basis of the evidence before it, the council could reasonably have found that Judge Zoarski, during his prior encounters with members of the Soffer family, had ample occasion to learn that Stuart Soffer was the son and nephew of the members of the Soffer family with whom he had been in litigation. Judge Zoarski acknowledged, at the probable cause hearing held pursuant to § 51-51Z,
Because Judge Zoarski should have known that he was dealing with an immediate member of the Soffer family in circumstances in which his impartiality could reasonably have been called into question, the council could reasonably have concluded that he had engaged in judicial conduct that was “prejudicial to the impartial and effective administration of justice [so as to bring] the judicial office in disrepute.” In contrast to § 51-51Í (a) (2), prejudicial judicial conduct under § 51-51Í (a) (1) does not require proof of a wilful violation of the canons of judicial ethics. “Scienter is not essential for the occurrence of an ethical violation. Judges . . . are chargeable for deviations from the [statutes] governing their conduct, even though the application of the [statutes] to particular circumstances
II
Judge Zoarski’s remaining claims on appeal challenge the manner in which the council adjudicated the charges against him. These claims warrant less extended discussion. None of them is persuasive.
Judge Zoarski maintains that the council had no authority to adjudicate the charges against him without expert evidence on the standard to which judges must conform their conduct. He relies on Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989), and the cases therein cited, in which we held that an administrative board must have expert testimony on the standards of professional conduct unless the board that hears the matter itself consists of a majority of experts. Levinson did not, however, require the judicial review council to receive expert testimony. The membership of the council included three lawyers as well as three judges, and
Judge Zoarski next contends that the council was required to dismiss the charges against him because of Stuart Soffer’s improper public dislosures of the charges he had filed. It is arguable that such disclosures were inconsistent with § 51-5Ü (a), which provides for the confidentiality of investigations to determine “whether or not there is probable cause that conduct under section 51-51Í has occurred . . . .”
Judge Zoarski claims that the council violated his due process rights by conducting the proceedings against him without first having enacted comprehensive regulations as required by § 51-5 lk (i).
Judge Zoarski maintains that the council’s finding of misconduct cannot stand because the council improperly considered testimony that he had given at his probable cause hearing. He argues that this testimony was inadmissible hearsay, and could not be characterized as an admission, because the probable cause hearing was merely an investigatory proceeding and not a public hearing into the ultimate merits of the charges against him. In civil as well as in criminal cases, “[t]he words and acts of a party-opponent are generally admissible against him under the admission exception [to the hearsay rule]. See O’Brien v. John Hancock Mutual Life Insurance Co., 143 Conn. 25, 29-30, 119 A.[2d] 329 (1955); Cashman v. Terminal Taxi Co., 131 Conn. 31, 33, 37 A.2d 613 (1944); Hubbard v. Schlump, 106 Conn. 216, 219, 137 A. 644 (1927).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.1. We have not previously decided at what juncture a respondent becomes a party-opponent in a judicial misconduct proceeding.
Finally, Judge Zoarski contends that the council violated his due process rights because of the different
Ill
Our searching review of the disciplinary proceeding against Judge Zoarski has been guided by the public policy that we must enforce. “The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice. The discipline we impose must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter [the judge] from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future. Thus, we discipline a judge not for purposes of vengeance or retribution, but to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the citizens of [this state] that the judiciary of their state is dedicated to the prin
The appeal is dismissed.
In this opinion the other justices concurred.
General Statutes § 51-5U provides in relevant part: “investigation OP CONDUCT OF JUDGE, COMPENSATION COMMISSIONER OR FAMILY SUPPORT magistrate, (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 under section 51-51i has occurred . . ."
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 . . . .”
General Statutes § 51-51m provides in relevant part: “vote of council. findings TO BE INDEXED, (a) The judicial review council may take any action upon a majority vote of its members present and voting, except that any action to suspend a judge, compensation commissioner or family support magistrate for any period shall require the concurring vote of seven of its members.”
General Statutes § 51-51r provides in relevant part: “appeals, rules. Any judge . . . 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 shall adopt by rule.”
The charges against Stuart Soffer were subsequently dismissed.
In light of the council’s unanimous determination of misconduct under this charge, we need not decide whether the council would have had the authority to suspend the respondent with respect to his alleged misconduct under the first charge, which only six members of the council found to have been proved. See General Statutes § 51-51m.
General Statutes § 51-511 provides in relevant part: “investigation OP CONDUCT OF JUDGE, COMPENSATION COMMISSIONER OR FAMILY SUPPORT magistrate, (a) . . . . Any investigation to determine whether or not there is probable cause that conduct under section 51-51Í has occurred shall be confidential and any individual called by the council for the purpose of providing information shall not disclose his knowledge of such investigation to a third party prior to the decision of the council on whether probable cause exists, unless the respondent requests that such investigation and disclosure be open, provided information known or obtained independently of any such investigation shall not be confidential. . .
The respondent in this proceeding did not request “that such investigation and disclosure be open.”
General Statutes § 51-51k provides in relevant part: “judicial review council. . . .
See footnote 6.
General Statutes § 51-511 provides in relevant part: “investigation OF CONDUCT OF JUDGE, COMPENSATION COMMISSIONER OR FAMILY SUPPORT magistrate, (a) Except as provided in subsection (d), the judicial review council shall investigate every written complaint brought before it alleg
“(c) If a preliminary investigation indicates that probable cause exists that the judge ... is guilty of conduct under section 51-51Í, the council shall hold a hearing concerning the conduct or complaint. All hearings held pursuant to this subsection shall be open. . . .”
The statutory grounds for the finding of judicial misconduct contained in General Statutes § 51-51Í (a) are broader than those that governed disqualification at common law, under which a judge was disqualified for a direct pecuniary interest and for nothing else. Dacey v. Connecticut Bar Assn., 184 Conn. 21, 24, 441 A.2d 49 (1981). Disqualification on the grounds of relationship or pecuniary interest is now governed by General Statutes § 51-39.
General Statutes (Rev. to 1991) § 51-51k provides in relevant part: “JUDICIAL REVIEW council established, (a) There is hereby established a judicial review council to be composed of the following members: (1) Three judges of the superior court, who are not also judges of the supreme court, elected by the members of the superior court, (2) three attorneys-at-law admitted to practice in this state who shall be appointed by the governor with the approval of the general assembly, and (3) five persons who are not attorneys-at-law or judges who shall be appointed by the governor and approved by the general assembly.”
See footnote 7.
Judge Zoarski’s invocation of the equitable principle of “clean hands” is unpersuasive. Although the proceedings before the council were initiated by the complainant, Stuart Softer, the party in interest is the general public rather than Stuart Soffer personally. We have never applied the doc
We need not decide in this case what consequences would follow an unauthorized disclosure of pending judicial disciplinary proceedings by a member of the council or by an agent of the council. Council on Judicial Complaints v. Maley, 607 P.2d 1180 (Okla. 1980), on which Judge Zoarski relies to urge dismissal in this case, involves the validity of interrogatories addressed to a disciplinary council, rather than a voluntary disclosure by a complainant.
See footnote 8.
We confine our discussion to the admissibility of the words and acts of a party-opponent in adversarial proceedings because that is the way the parties have framed the issue. We, therefore, need not address the circumstances under which statements or conduct may qualify as admissions even though they precede adversarial proceedings.
The statutes on which Judge Zoarski relies as an expression of a contrary legislative policy are inapposite. The adjudicative proceedings before the judicial review council do not review the merits of the investigatory finding of probable cause. Such proceedings are therefore distinguishable from the legislative proscription contained in General Statutes § 51-183h, which prohibits a judge from presiding “at the hearing of any motion attacking the validity or sufficiency of any bench warrant of arrest which he has signed.” Similarly, the adjudicative proceeding is not a new trial subsequent to a reversal of prior investigatory proceedings, and therefore does not implicate the policy of General Statutes § 51-183c, which disqualifies a judge from retrying a case over which he previously presided.
Rule 3. A of the ABA Model Rules for Judicial Disciplinary Enforcement (Discussion Draft July 15,1993) recommends that the membership of a judicial conduct commission should be divided into separate investigative
In State v. Hayes, 127 Conn. 543, 581-82, 18 A.2d 895 (1941), we observed: “Neither because the trial judge ordered the grand jury and presided throughout the grand jury proceedings and had passed on numerous preliminary motions, nor for any other reason, was he disqualified to preside at the trial; the eminent fairness and impartiality with which it was conducted effectually refutes any claim of bias or prejudice on his part. . . . [N]or does it appear that the defendants were in fact prejudiced in their defense by the court’s rulings, and unless this is affirmatively shown there is no basis upon which the defendants can claim relief because of these rulings.”