Opinion
FSTCV145014277S
05-26-2016
Robert Pritsker v. Jo-Ann Keating et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S AMENDED MOTION FOR DISQUALIFICATION OF JUDICIAL AUTHORITY (#190)
Hon. Charles T. Lee, J.
On April 6, 2016, plaintiff Robert Pritsker filed a motion to disqualify the judicial authority following oral argument on March 28, 2016 of defendants' motion for summary judgment. On April 11, 2016, the court denied plaintiff's motion without prejudice for failure to comply with Practice Book Section 1-23 because the motion was not accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion was made in good faith. On April 18, 2016, Mr. Pritsker, who is self-represented, filed the present amended motion to disqualify the judicial authority, accompanied by an affidavit setting forth the grounds for the motion and a copy of the transcript of the March 28th hearing. In summary, plaintiff alleges that the court revealed bias and partiality during the argument on March 28, 2016 because the court engaged in active discussion with plaintiff about the merits of his case, which plaintiff felt was improper and violated Rule 2.11(a) (Disqualification) of the Code of Judicial Conduct.
Mr. Pritsker advised that he had been admitted to practice law in Massachusetts.
Background
On or about July 15, 2014, plaintiff commenced the present action against the Town of Weston, its Board of Education, two employees of the Board of Education, the Police Chief and a police officer on the Weston Police force alleging intentional and negligent infliction of emotional distress in two counts respectively, arising out of his arrest on July 10, 2011 on the basis of six charges, including risk of injury to a child. The arrest warrant, signed by Judge Dennis on July 1, 2011, alleged that, on June 2, 2011, Mr. Pritsker had been practicing tennis at the Weston town courts, which are located adjacent to the Weston Intermediate School, when he sought to exit at or about the time of dismissal of the children from their classes. Finding the access road blocked by the school buses, which were waiting for the children and that the bus drivers were unwilling to move their buses, Mr. Pritsker allegedly drove around the right side of the buses on the sidewalk in order to leave the scene. School officials notified the police, who investigated the charges, and Mr. Pritsker was eventually arrested.
In his complaint, Mr. Pritsker claims, among other things, that a member of the Board of Education was motivated by animosity towards him in causing a complaint to be made to the police, that the bus drivers perjured themselves in their sworn statements to the investigating officer, and that the police officer filling out the affidavit in support of the warrant falsified various facts, leading Judge Dennis to authorize the warrant without probable cause, all negligently and intentionally causing him emotional harm. Plaintiff also alleges that the police chief inflicted emotional harm on him by his comments in the local newspaper and by releasing his arrest photograph.
On April 15, 2015, defendants filed a motion for summary judgment dismissing both counts. On June 8, 2015, the court granted the motion as to the second count, alleging negligent infliction of emotional distress, on statute of limitations grounds. The court denied the motion as to count one, intentional infliction of emotional distress, without prejudice to allow plaintiff time to conduct discovery. Plaintiff did not do so. As mentioned above, the court heard argument on March 28, 2016 on defendants' motion for summary judgment on the first count.
Contentions of the Parties
Plaintiff brings the present motion to disqualify the judicial authority based on an alleged violation of Rule 2.11(a) of the Connecticut Code of Judicial Conduct. In his memorandum in support of his original motion, he asserts, " Were the display of bias Plaintiff witnessed in Courtroom 7C witnessed by such an average person would he honestly think that Judge Lee was not introducing speculation and conjecture opposed to Plaintiff's position and untethered to any factual or legal issue in the case, but rather flowing solely from his apparent partiality in wishing to grant the motion for summary judgment after all?" (at 3) Plaintiff also states in his original motion, " Were, however, Judge Lee to deny the subject motion for summary judgment by Monday, April 11 at the latest, Plaintiff will withdraw this motion and proceed to trial as scheduled or delayed as the Court sees fit."
In plaintiff's affidavit attached to the amended motion, plaintiff initially takes issue with various scheduling orders, saying that they display favoritism " and a shocking display of impartiality." What plaintiff addresses is the court's decision to schedule the undecided portion of defendants' summary judgment seeking dismissal of the first count relating to intentional infliction of emotional distress. While plaintiff plainly would have preferred that this portion of defendants' motion not be heard, defendants had a right to have their motion decided. Plaintiff then takes issue with several questions the court posed to him, claiming that the mere fact that they were asked demonstrates lack of impartiality on the part of the court. Among them was whether, in alleging a continuing course of conduct sufficient to toll the statute of limitations for intentional infliction of emotional distress, it is necessary to allege affirmative acts in furtherance of the tort. Plaintiff insisted that a failure to act was sufficient, but the court expressed doubt on the merits of that position. Further, plaintiff insisted that he did not need to take any discovery because he could simply rely on the assertions of his complaint and referred to the court's disagreement as " badgering." He also was upset that the court did not accept his interpretation of the statute relating to risk of injury to a child, or about the proximity of children sufficient to find probable cause for the arrest warrant. Most fundamentally, plaintiff asserts that the court's questions demonstrated that " it had taken a side" and was thus not impartial.
Defendants filed an objection to plaintiff's motion addressing what they considered to be plaintiff's misunderstanding of the procedural posture of the case, the elements necessary to oppose a motion for summary judgment, the meaning of the relevant criminal statute and other matters. Plaintiff filed a reply in which he addressed these contentions and continued to assert that all cited witnesses had perjured themselves and so their statements could not support probable cause for the arrest warrant. Finally, defendants filed a surreply rejecting these conditions. The court held a hearing on the motion to disqualify on May 9, 2016.
Discussion
Practice Book Section 1-22 (Disqualification of Judicial Authority) provides in pertinent part:
(a) A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Rule 2.11 of the Code of Judicial Conduct . . .Rule 2.11 of the Code of Judicial Conduct provides, in pertinent part,
(a) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to, the following circumstances:
1. The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding;
4. The judge has made a public statement, other than in a court proceeding, judicial decision or opinion that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
This Rule has been construed recently by the Appellate Court in Stefanoni v. Darien Little League, Inc., 160 Conn.App. 457, 464, 124 A.3d 999 (2015):
Pursuant to our rules of practice; see Practice Book § 1-22; a judge should disqualify himself from acting in a matter if it is required by rule 2.11 of the Code of Judicial Conduct, which provides in relevant part that " [a] judge shall disqualify himself . . . in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to, the following circumstances . . . [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding." Code of Judicial Conduct 2.11(a)(1). State v. Rizzo, 303 Conn. 71, 118, 31 A.3d 1094 (2011), cert. denied, ___ U.S. ___, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). " In applying this rule, [t]he reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge's impartiality on the basis of all the circumstances . . . Moreover, it is well established that [e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority . . . Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially . . . and that they are able to put aside personal impressions regarding a party . . . the burden rests with the party urging disqualification to show that it is warranted." (Citations omitted; internal quotation marks omitted.) Id., at 118-19, 31 A.3d 1094.
The court also noted, at n. 3.,
It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety. State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987); accord Tracey v. Tracey, 97 Conn.App. 278, 285, 903 A.2d 679 (2006) (" it is the moving party's burden to prove that the conduct in question gives rise to a reasonable appearance of impropriety"). The burden thus rests with the plaintiff in this appeal to demonstrate that the trial judge improperly denied her recusal request.
In St. Germain v. Labrie, 108 Conn.App. 587, 595, 949 A.2d 518 (2008), the court held:
The standard for determining whether a judge should recuse himself or herself pursuant to canon 3(c) is well established. The standard to be employed is an objective one, not the judge's subjective view as to whether he or she can be fair and impartial in hearing the case . . . Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification . . . The standard for appellate review of whether the facts require disqualification is whether the court's discretion has been abused. (Internal quotation marks omitted.) Sabatasso v. Hogan, 91 Conn.App. 808, 825-26, 882 A.2d 719, cert. denied, 276 Conn. 923, 888 A.2d 91 (2005).
Our review of the plaintiff's grounds for disqualification that he asserted in his motion, and briefed on appeal, reveal that the grounds asserted amount to nothing more than claims that the court's rulings were improper. " [A]dverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification." State v. Bunker, 89 Conn.App. 605, 613, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). Accordingly, we conclude that the court did not abuse its discretion in denying his motion.
As further noted in Rebeca M. v. Katz, judicial district of Fairfield, Docket No. F04 CP 12 0009499A, (Jan. 9, 2015, Stevens, J.):
[A] charge that a judge is not impartial implicates not only the fundamental concept of a fair trial, but the very integrity of the trial court. (Internal quotation marks omitted.) Burton v. Statewide Grievance Committee, 80 Conn.App. 536, 541, 835 A.2d 1054 (2003), cert. denied, 268 Conn. 907, 845 A.2d 410 (2004). It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion. (Internal quotation marks omitted.) State v. Montini, 52 Conn.App. 682, 695-96, 730 A.2d 76, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999).
[A]dverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification." State v. Bunker, 89 Conn.App. 605, 613, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). The alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case . . . Moreover, to support a claim of disqualification, the judge's comments must express a personal bias against the parties and not merely be directed at the merits of the defense claimed based on information presented to him [or her] during a trial on the merits. (Emphasis in original; internal quotation marks omitted.) In re Messiah S., 138 Conn.App. 606, 624-25, 53 A.3d 224, cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).
Similarly, the court in Sabatasso v. Hogan, judicial district of New Haven, Docket No. CV 000441515S, (December 8, 2003, Flanagan, J.), held,
Accusations of judicial bias or misconduct implicate the basic concept of a fair trial. A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. The fact that a trial court rules adversely to a litigant does not demonstrate personal bias. State v. Dumas, 54 Conn.App. 780, 790, 739 A.2d 1251; Bieluch v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8. The oral motion relating to recusal followed rulings on Motions in Limine filed by the defendant and seem to reflect an effort to avoid implications of adverse rulings. There is absolutely nothing offered in support of the claim the court was unfair or impartial in its conduct such as to trigger a recusal.
Analysis
As noted above, the core of plaintiff's motion is expressed in his claim that the court expressed its intention to grant defendants' motion for summary judgment through its questioning of plaintiff during oral argument. According to plaintiff, this constituted both bias and partiality. As more fully discussed below, the court rejects both contentions and does not find that an objective observer would think otherwise.
A. Bias
Rule of Judicial Conduct 2.11(a)(1) defines disqualifying bias as where " The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding."
Mr. Pritsker does not identify any personal bias or prejudice on the part of the court with respect to him or any party or counsel in the proceeding or any personal knowledge of the pertinent facts on behalf of the court. As a result, the court concludes that plaintiff's actual concern is not any bias on the part of the court but rather impartiality arising out of an apparent inclination to grant defendants' motion for summary judgment as revealed by careful examination of plaintiff's assumptions and a search for facts supporting plaintiff's contentions.
B. Impartiality
Section (a)(4) of Rule 2.11 defines disqualifying impartiality as where " [t]he judge has made a public statement, other than in a court proceeding, judicial decision or opinion that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy."
At the threshold it is clear that, even if questioning a litigant at oral argument could constitute partiality, the court's remarks were made " in a court proceeding" where the merits of the defendants' motion were considered. Thus, on its face, the court's colloquy with the parties would not violate the Rules of Conduct.
Further, given plaintiff's offer to withdraw the motion to disqualify if the court were to deny defendants' motion for summary judgment, the conclusion is strong that the present motion is tactical, and made out of a desire to avoid an unfavorable result.
More profoundly, vigorous comment by the court in oral argument should not be deterred in any way. It serves the judicial function in making sure that the court properly understands the parties' position and gives assurance that the parties have brought all relevant evidence and considerations to the court's attention. For this reason, discussion in the courtroom is properly excluded from considerations of impartiality.
Conclusion
Based on the foregoing considerations, the plaintiff's motion to disqualify the judicial authority is denied.