Opinion
TTDCV185010679S
06-18-2019
Christopher TIERINNI v. Brendan NOONAN et al.
UNPUBLISHED OPINION
Seeley, J.
I
BACKGROUND
On or about August 29, 2018, the plaintiff commenced the present action against the defendants who are identified in the complaint to be state marshals. The complaint alleges that the defendants failed to properly serve three different lawsuits on the defendants named in each lawsuit as requested by the plaintiff. The plaintiff further claims that as a result of the alleged improper service, defense counsel in those cases filed a motion to dismiss, and the defendants’ negligence caused the plaintiff emotional harm.
On December 13, 2018, the defendants filed a motion for summary judgment, arguing that they were entitled to judgment as a matter of law because there were no genuine issues of material fact. On April 26, 2019, the court (Sferrazza, J.) heard oral argument from the parties.
On May 13, 2019, Judge Sferrazza issued an order in which he disclosed to the parties in accordance with Rule 2.11(e) of the Code of Judicial Conduct and Section 1-22(b) of the Practice Book that on May 7, 2019 the plaintiff filed a complaint with the Judicial Review Council against him. Judge Sferrazza then referred the matter to another court for argument and for a determination of whether he should be disqualified in this matter. On May 14, 2019, a notice was sent to the parties indicating that a hearing on the disqualification of Judge Sferrazza would be held on May 21, 2019.
On May 17, 2019, the plaintiff filed a case flow request and asked the court to schedule a hearing "regarding disqualifying Judge Sferrazza from the case." He further stated that a complaint had been filed with the Judicial Review Council. The court issued an order indicating no action was necessary on the plaintiff’s case flow request since a hearing had already been scheduled for May 21, 2019.
This court (Seeley, J.) presided over the hearing on May 21, 2019. The plaintiff, who is self-represented, argued that Judge Sferrazza should be disqualified because Judge Sferrazza revealed bias and partiality during the argument on April 26, 2019 in the following ways: (1) Judge Sferrazza sua sponte raised the issue of whether the court had subject matter jurisdiction and gave the parties two weeks to file briefs to address the court’s question regarding subject matter jurisdiction; (2) Judge Sferrazza did not permit the plaintiff to present argument that one of defense counsel’s clients who is being sued by the plaintiff in another case wished to reach a settlement; (3) Judge Sferrazza permitted both parties fifteen minutes to present their arguments and he interrupted the plaintiff with questions, but he did not interrupt defense counsel; and, (4) Judge Sferrazza retaliated against him during the hearing held on April 26, 2019 which, according to the plaintiff, was because the plaintiff had filed prior complaints against Judge Sferrazza. The transcript and an audio recording of the hearing held before Judge Sferrazza on April 26, 2019 were marked as exhibits for the court’s review.
For the reasons stated below, the plaintiff’s claims are without merit and his motion to disqualify Judge Sferrazza is denied.
II
DISCUSSION
Pursuant to 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 ..." It includes a circumstance in which "[t]he judge has a personal bias or prejudice concerning a party ..." or "[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." Code of Judicial Conduct 2.11(a)(1) and (4). Moreover, Rule 2.11(e) specifically provides that "[a] judge is not automatically disqualified from sitting on a proceeding merely because a lawyer or party to the proceeding has filed a lawsuit against the judge or filed a complaint against the judge with the judicial review council." Code of Judicial Conduct 2.11(e). Rather, when a judge becomes aware that a lawsuit or complaint has been filed against him or her, "... the judicial authority shall either disqualify himself or herself from sitting on the proceeding, conduct a hearing on the disqualification issue before deciding whether to disqualify himself or herself or refer the disqualification issue to another judicial authority for a hearing or decision." Practice Book § 1-22(b); see also Code of Judicial Conduct 2.11(e).
In applying Rule 2.11 of the Code of Judicial Conduct, "[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.) Doe v. Town of West Hartford, 168 Conn.App. 354, 383, 147 A.3d 1083, cert. granted on other grounds, 323 Conn. 936, 151 A.3d 384 (2016); accord State v. Milner, 325 Conn. 1, 12, 155 A.3d 730 (2017).
See also State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987) (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); 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").
A party claiming an appearance of impropriety or bias must present more than unsubstantiated allegations or possibilities. "Courts instead should examine the record, facts and the law and then decide whether a reasonable person, if fully informed of the facts and circumstances underlying the grounds on which disqualification was sought, would conclude that the court’s impartiality might reasonably be questioned, would harbor significant doubts about the judge’s impartiality, or would disqualify the judge even though no actual bias has been shown." Tracey v. Tracey, 97 Conn.App. 278, 285, n.6, 903 A.2d 679 (2006), quoting R. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (1996) § 5.8.2, p. 171. "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 ... Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse ..." (Citations omitted; internal quotation marks omitted.) Tracey v. Tracey, supra, 97 Conn.App. 284.
The plaintiff’s first claim for recusal is that Judge Sferrazza sua sponte raised the issue of whether the court had subject matter jurisdiction. At the beginning of the hearing, Judge Sferrazza informed the parties that he had a preliminary question regarding whether the court had subject matter jurisdiction if the matter had not been presented to the claims commissioner pursuant to General Statutes § 4-165. The plaintiff argued that state marshals are not state employees under General Statutes § 4-141(5). When Judge Sferrazza raised this issue, he recognized that the parties did not have notice of his concerns so he told the parties that he would give them two weeks to file a written submission addressing whether state marshals are state employees and the applicability of General Statutes § 4-165.
General Statutes § 4-165(a) provides that "[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present its claim against the state under the provisions of this chapter."
It has long been recognized that "[w]hen a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, § § 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Tuchman v. State, 89 Conn.App. 745, 751, 878 A.3d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). "Claims involving ... statutory immunity, pursuant to § 4-165, implicate the court’s subject matter jurisdiction." (Internal quotation marks omitted.) Gilman v. Shames, 189 Conn.App. 736, 745 (2019). "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Stone Trails, LLC v. Town of Weston, 174 Conn.App. 715, 736, 166 A.3d 832 (2017), cert. dismissed, 327 Conn. 926, 171 A.3d 59, and cert. denied, 327 Conn. 926, 171 A.3d 60 (2017).
Therefore, since a court may raise the issue of subject matter jurisdiction sua sponte and a court may not consider the merits of a case unless it has subject matter jurisdiction, Judge Sferrazza’s identification of the issue and request that the parties file written submissions on it did not show bias by Judge Sferrazza. Instead, Judge Sferrazza recognized that the parties were unaware of his concern and he specifically invited both parties to file arguments with citations to authorities. The plaintiff failed to prove that Judge Sferrazza demonstrated bias against him based on this ground.
When the plaintiff argued that a court in another jurisdiction agreed with his argument that state marshals are not state employees, Judge Sferrazza stated, "... you can cite that for me ... and I can try and research it. But I have a concern and an issue about it and I will give you an opportunity, both sides an opportunity to address that rather than just spring it on you right now."
The second ground advanced by the plaintiff in support of his recusal motion is that Judge Sferrazza showed bias because he did not allow the plaintiff to present argument that one of defense counsel’s clients who is being sued by the plaintiff in another case wished to reach a settlement. After the plaintiff stated, "I wanted to bring up that one of his [defense counsel’s] clients does want to settle the case," defense counsel objected to any references being made to settlement discussions. Judge Sferrazza agreed and told the plaintiff to present arguments as to why the defendants’ motion for summary judgment should be denied rather than focusing on the defendants’ counsel.
Judge Sferrazza stated, "[y]ou can’t refer to settlements. The law is such that in order to encourage people to discuss settlements, the fact that they engaged in settlements is not allowable. Otherwise nobody would discuss anything for fear that in the future it would be brought up against them."
The plaintiff’s second ground for disqualification amounts to nothing more than a claim that Judge Sferrazza’s ruling was improper. "It is an elementary rule of law that the fact that a trial court rules adversely to a litigant, even if some of those rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias." (Citations omitted; internal quotation marks omitted.) Emerick v. Emerick, 170 Conn.App. 368, 376-77, 154 A.3d 1069, cert. denied, 327 Conn. 922, 171 A.3d 60 (2017); see also Germain v. LaBrie, 108 Conn.App. 587, 595, 949 A.2d 518 (2008) ("adverse rulings by a trial judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification"). Furthermore, "[o]bviously, if a ruling against a party could be used as ... indicia of bias, at least half of the time, every court would be guilty of being biased against one of the two parties ... The fact that the plaintiff strongly disagrees with the substance of the court’s rulings does not make those rulings evidence of bias." Emerick v. Emerick, supra, 170 Conn.App. 377. Thus, the plaintiff’s second claim of bias is not supported by the record.
The plaintiff’s third argument in support of his motion for disqualification is that Judge Sferrazza gave the parties fifteen minutes each to present their arguments, but he showed bias against the plaintiff because he asked questions only during the plaintiff’s argument. First, "the length of time that must be allowed for oral argument in a given case is a matter within the broad discretion of the trial court." City of Stamford v. Kovac, 229 Conn. 627, 631, 642 A.2d 1190 (1994). Secondly, one purpose of oral argument is so that the trial court may ask questions of the parties. The fact that Judge Sferrazza asked questions during the plaintiff’s presentation does not establish that he was biased against the plaintiff. Rather, a review of the record reveals that Judge Sferrazza was performing his judicial duties and asking questions that were germane to the issues before him. See, e.g., In re Messiah S., 138 Conn.App. 606, 624-25, 53 A.3d 224, cert. denied, 307 Conn. 935, 56 A.3d 712 (2012) (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 during a trial on the merits). The plaintiff’s third claim is nothing more than speculation, which is not sufficient to establish an appearance of bias or partiality.
The plaintiff’s final claim is that Judge Sferrazza retaliated against him during the hearing held on April 26, 2019 because the plaintiff had filed prior complaints against Judge Sferrazza. The plaintiff submitted no evidence to support this claim. Furthermore, the plaintiff’s argument is premised on a presumption that trial judges have an inherent bias against a litigant who files a complaint with the judicial review council. Yet, under Rule 2.11(e), "[a] judge is not automatically disqualified from sitting on a proceeding merely because a lawyer or party to the proceeding has filed a lawsuit against the judge or filed a complaint against the judge with the judicial review council." Code of Judicial Conduct 2.11(e); see also Practice Book § 1-22(b). "[T]he law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea." (Citations omitted.) Tracey v. Tracey, supra, 97 Conn.App. 286-87.
Moreover, this court has reviewed and listened to the proceedings held on April 26, 2019 before Judge Sferrazza, and finds that Judge Sferrazza was courteous and respectful toward both the plaintiff and defendants. His tone of voice was measured and even. There were no signs that he exhibited any bias against the plaintiff. In addition, the plaintiff did not make any complaints of judicial bias at the time of the oral argument. This court determines that the plaintiff’s contention of bias due to prior complaints allegedly filed against Judge Sferrazza "is mere speculation and conjecture divorced from any factual predicate of partiality." Tracey v. Tracey, supra, 97 Conn.App. 286.
"[A] charge of bias [or prejudice] must be deemed at or near the very top in seriousness, for bias kills the very soul of judging- fairness ... [A] charge of ... bias [or prejudice] against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge’s personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased. Attorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record." (Citation omitted; internal quotation marks omitted.) McKenna v. Detente, 123 Conn.App. 137, 144-45, 1 A.3d 260 (2010). In this case, the plaintiff’s allegations of judicial bias are not substantiated by the record. After examining the record, facts and the law, this court concludes that a reasonable person, if fully informed of the facts and circumstances underlying the grounds on which disqualification was sought, would not conclude that Judge Sferrazza’s impartiality might reasonably be questioned, would not harbor significant doubts about Judge Sferrazza’s impartiality, and would not conclude that there was an appearance of bias to justify Judge Sferrazza’s disqualification. In sum, there is no merit to the plaintiff’s claims of bias and partiality.
III
CONCLUSION
Based on the foregoing considerations, the plaintiff’s motion to disqualify Judge Sferrazza is denied.