Opinion
FSTFA064009308S
12-12-2018
Candace BLACKWOOD v. Robert R. MOZDEAN
UNPUBLISHED OPINION
GENUARIO, J.
I. INTRODUCTION
The defendant through his counsel has moved to recuse Judge Mary E. Sommer from hearing further matters in this case pursuant to Practice Book § 1-22, 1-23 and Rules of Judicial Conduct 2.3, 2.4, 2.5 and 2.11(a).
Rather than decide the motion to recuse herself, Judge Sommer referred the motion to the undersigned for argument and decision. The court heard argument on the defendant’s motion on September 20, 2018 at which time the defendant through counsel introduced five transcripts of proceedings which the defendant and/or his counsel argue demonstrate bias and predisposition on the part of Judge Sommer against the defendant’s counsel Wayne Effron. Two of the transcripts involve proceedings in this case and three of the transcripts involve proceedings that are unrelated to this case other than the fact that Attorney Effron represented one of the parties in those three cases. It is fair to say that the substance of this motion is that Attorney Effron and his client, the defendant herein, believe that Judge Sommer has demonstrated a bias and/or predisposition against Attorney Effron which, consistent with the Rules of Practice and the Code of Judicial Conduct, require her to be recused in this case.
II. STANDARDS FOR RECUSAL
Connecticut Practice Book § 1-22(a) states that:
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(a) of the Code of Judicial Conduct states in pertinent part:
(a) A Judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might be reasonably 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 disputed in the proceeding.
Rules 2.3, 2.4 and 2.5 of the Code of Judicial Conduct set forth certain standards concerning the judges conduct which require a judge to perform his or her duties "without bias or prejudice (Rule 2.3)" and "competently and diligently" (Rule 2.5).
The Connecticut Appellate Court has stated:
The standard for determining whether a judge should recuse himself or herself pursuant to [Rule 2.11 of the Code of Judicial Conduct] 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 leave 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.St. Germain v. LaBrie, 108 Conn.App. 587, 595 (2008). In St. Germain the Court repeated a long standing rule that "adverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification." Id. at 596 quoting State v. Bunker 89 Conn.App. 605, 613 (2005), appeal dismissed, 280 Conn. 512 (2006).
The case of Tracey v. Tracey, 97 Conn.App. 278 (2006) provides some clarity with regard to the application of this standard. While acknowledging that each claim of judicial impropriety must be evaluated on its own facts, the Tracey court went on to discuss three "precepts" set forth in the case law addressing the appearance of impropriety.
The first precept concerns the so called extrajudicial source rule, which holds that the bias or prejudice sufficient to result in disqualification "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 participation in the case." Tracey at 283-84 quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). The second precept pertains to the judge’s involvement in multiple proceeding with the same party. "Courts have routinely held that the prior appearance of a party before a trial judge does not reflect upon the judge’s impartiality in a subsequent action involving that party." State v. Webb, 238 Conn. 389, 461 (1996). The same conclusion of course can be drawn and may be even more important when it deals with the same attorney appearing before a judge on multiple occasions. The third precept is that speculation is insufficient to establish the appearance of an impropriety.
III. THE TRANSCRIPTS
With these standards and precepts in mind, this court has studied the defendant’s motion and has reviewed each of the transcripts submitted as evidence in support of the motion. The court will begin with the discussion of transcripts that involve the proceedings in this particular case.
On May 21, 2018, Judge Sommer heard a motion for continuance. Both parties were represented by counsel. The hearing involved the defendant’s request for a continuance of a motion filed by the plaintiff which motion alleged that for a period of more than four years the defendant received pension distributions that belonged to the plaintiff. Attorney Effron, on behalf of the defendant, who resides out of state, produced a letter evidencing that the defendant’s medical providers were advising the defendant against long distance airplane travel because of the defendant’s serious health conditions. Plaintiff’s counsel expressed the concern that the defendant might never be able to appear for the hearing and that the plaintiff therefore might not be able to get relief if an unlimited continuance was granted. The transcript reveals that the court listened to both sides and reviewed the letter provided by the defendant through Attorney Effron. The court suggested that "the parties arrange for a telephone conference by way that Mr. Mozdean can participate by telephone or any other technology which may be available to facilitate this matter." Attorney Effron in response stated "[w]e are talking about a few thousand dollars here; is it worth risking this man’s life ..." The court responded "I would appreciate you sticking to the matter before the court which is the courts specific direct request to you, Attorney Effron, that you suggest an alternative in recognition of the very health challenges that Mr. Mozdean faces and in recognition of his constitutional rights. I am asking you for an alternative to airplane travel at a date-at any date because that is what is suggested by this letter. So as you know this court has to balance the rights of both sides and I am asking you for a reasonable suggestion. I am giving you that opportunity to present one to the court because without one the court will have to act on its own." Attorney Effron’s response was "I don’t have a reasonable suggestion, your Honor."
Although there was some colloquy as to whether or not the court should consider the letter authored by a medical service provider, it is evident that Judge Sommer did consider that letter which gave rise to her request for suggestions as how to accommodate the defendant’s medical conditions and still allow the plaintiff to proceed to protect her rights.
Counsel in this case reappeared before the court on July 9, 2018 in an effort to resolve the underlying issue raised by the motion for continuance which was whether or not the court would hold a hearing on the underlying motion filed by the plaintiff and if so when. The court gave Attorney Effron the opportunity to address the issue concerning the scheduling of the hearing raised by the defendant’s motion for continuance. Towards the end of the hearing the court stated "[t]he only thing that is before me is the consideration of Mr. Mozdean’s health and his need to-or his rights, the request for a continuance. And I have-maybe it did not help the parties but the court had suggested at a previous hearing that the parties might discuss an alternative to Mr. Mozdean’s in court appearance, that did not occur. Instead some six weeks later, this motion was presented, was filed. Attorney Cohen indicated that he did not consent and this court is giving counsel for the defendant an additional opportunity to address the court. You may certainly do so, Counsel. I have invited you to do so several times, you may do so now."
Frankly, there is nothing in either of these transcripts which indicates a bias against either Attorney Effron or the defendant. The court on multiple occasions acknowledged Mr. Mozdean’s serious illness, made suggestions as to how he might participate without having to travel including either by video testimony or by deposition.
It is difficult to understand how such suggestions and colloquy, which by their nature attempt to balance Mr. Mozdean’s health concerns with the plaintiff’s right to have her claim adjudicated, evidence any bias whatsoever.
The defendant, in support of his motion to recuse, also provided a transcript dated November 6, 2017 in the case of Chang v. Chang, Docket No. FA-11-4021524-S. Attorney Effron represented the defendant therein. The hearing concerned a Motion for Protective Order by a third-party witness concerning the scope of a subpoena associated with the third party’s deposition. The transcript reveals an interesting discussion about the scope of discovery relating to one party’s co-habitation with a third party who was not a party to the dissolution action. The transcripts reveal that the court listened to counsel for both parties to the action as well as counsel to the third-party deponent at length. The transcript reveals the discussion of certain appellate cases as well as the pertinent statute. The court took the papers on the matter. The transcript in the Chang case evidences nothing but the thoughtful arguments of counsel and the court’s consideration of a difficult issue.
Similarly, the transcript of the January 22, 2018 hearing in the case of Singh v. Singh, Docket No. FA-17-6032630 S was presented. Once again, in a dissolution action, the issue involved the rights of a third-party witness whose counsel presented letters from her two treating physicians, which letters the court considered over Attorney Effron’s objection. Attorney Effron argued that the letters were hearsay and the proponent of the letters argued that they were admissible pursuant to C.G.S. § 52-174. Counsel disagreed as to the application of § 52-274 because the proponent of the letters was not a party to the action. The court was willing to consider the health of the third-party witness who according to the transcript was over the age of 80 in fashioning a discovery order. Attorney Effron argues that the court rendered inconsistent rulings in the Singh case and the Blackwood case because she considered the physicians letter in the Singh case and commented that the health care provider’s letter in the Blackwood case was hearsay. Attorney Effron argues that the Court’s differing positions are the result of Judge Sommer’s bias against him. Attorney Effron argues that it is clearer that the medical provider’s letter was admissible in the Blackwood case because in Blackwood the letter concerned the condition of a party. While a definitive ruling on the application of C.G.S. section 52-574(b) is beyond the scope of this memorandum, to the extent Attorney Effron argues that Judge Sommer’s consideration of the medical provider’s letter in Singh reflects some bias on her part, this court believes that Judge Sommer’s review of the signed letter in Singh was consistent with the provisions of that statute.
In any event there is no inconsistency between Judge Sommer’s decisions to consider the letters from health care providers in each case, because, notwithstanding the court’s comments in Blackwood relating to the hearsay nature of the letter, it is clear from the transcript that the court received the letter and considered it. In both cases, the court (Sommer, J.) considered healthcare providers’ letters, balanced the needs of the persons whose health was a concern, against the needs of the party who was either seeking discovery and/or a proceeding, in an effort to fashion an order which would balance the competing concerns including the health of the affected party in both cases. A review of the transcript in Singh also evidences a willingness on the part of Judge Sommer to listen to all sides of an argument before fashioning a decision.
Finally, the court must review the transcript of the case Buerstetta v. Buerstetta, Docket No. FS-17-6031228 S dated January 2, 2018. Attorney Effron in his motion characterized the proceedings on January 2nd as a "fiasco." While this court would not necessarily use that term, the conduct of counsel on that date raises issues. Attorney Effron represented the plaintiff. Counsel for the defendant called the plaintiff as her first witness. It is fair to say that the evidentiary hearing got off to a rocky start. Counsel for the defendant began by asking the plaintiff whether he had brought certain materials to court. Attorney Effron objected; the court explained that the question simply asked for a yes or no answer and did not seek to admit the documents and overruled the objection. As counsel for the defendant asked a series of similar questions Attorney Effron continued to object and the court continued to overrule the objections. At several points Attorney Effron began to state his argument in support of his objections but the court ruled that objections would be handled consistent with the Practice Book section 5-5. Connecticut Practice Book § 5-5 states that:
Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he or she desires it to go upon the record, before any discussion or argument is had. Argument upon such objection or upon any interlocutory questions arising during trial of the case cannot be made by either party unless judicial authority requests it and, if made, must be brief and to the point.
Thus, once an objection is made and the grounds (e.g. hearsay, privilege, relevance) are stated, it is up to the court to determine whether it wants discussion or argument on the issue.
The purpose of the rule is to allow proceedings to continue in an orderly fashion rather than have lengthy discussion on evidentiary issues that the court does not feel it needs. Indeed the importance of the rule is underscored by the Buerstetta transcript. When counsel is going to object to multiple questions at a short calendar proceeding, lengthy discussion on each of these objections might well effectively defeat the purpose of the short calendar hearing.
The Buerstetta hearing involved the enforcement of a prior order of the court (Colin, J.), which required the plaintiff to continue to pay the defendants "reasonable legal fees." The issue before the court was the reasonableness of the legal fees sought by the defendant. Attorney Effron objected to many of the questions on the basis that they sought to elicit information outside the scope of the issue before the court. The court overruled objections of Attorney Effron. Nonetheless after approximately thirty pages of transcript there was a little substantive of evidence that was elicited relating to the motion as a result of the continual objection/colloquy between both counsel and the court. The transcript is characterized by parties attempting to talk over one another. Frankly, this court sees nothing wrong with Judge Sommer’s invocation of Rule 5-5. Nor does it reflect bias. Nor is it the purpose of this court’s ruling on this motion to second guess the evidentiary decisions of Judge Sommer. But, nothing in the transcript reveals a bias or prejudice. It merely reveals a hotly contested proceeding, and an unwillingness of Attorney Effron to confine his objection to succinct grounds as required in § 5-5 of the Practice Book.
Returning to the precepts set forth by the Appellate Court in Tracey, there is no evidence that any bias occurs from an extrajudicial source. Attorney Effron’s sole point is that as a result of the many judicial proceedings he has had before Judge Sommer she has demonstrated a bias against him. In support of this motion, Attorney Effron argues that "[a]dverse rulings do not establish actual bias unless they ‘display a deep seated antagonism [by the judge] that would make fair judgment impossible.’" Cain v. Department of Corrections, 451 Mich. 470, 496 (1996) quoting Litekey v. United States, 510 U.S. 540, 555 (1994). Attorney Effron also notes that "[a] trial courts prejudice against an attorney may be grounds for disqualification when such prejudice is of such a degree that it adversely [a]ffects the litigant." Gates v. State 784 SO.2nd 1235, 1237 (Fla.2d DCA 2001).
The problem with Attorney Effron’s point is that none of the transcripts reveal anything close to a bias on the part of Judge Sommer. Her rulings in the instant case appear from the transcripts to reflect an honest attempt to balance the right of the plaintiff to a hearing and the legitimate healthcare interests of the defendant. In the instant case Judge Sommer gave Attorney Effron multiple opportunities to suggest alternatives and processes by which Mr. Mozdean testimony could be obtained for the hearing without requiring him to travel. As she indicated since Attorney Effron made no such suggestion, she was left to rule without the benefit of such suggestions. This was her obligation. The transcripts other than Buerstetta reflect thoughtful arguments on the part of all counsel involved and a thoughtful inquiry of the court. Buerstetta is the sole exception; but while the Buerstetta transcript reflects a less than ideal evidentiary proceeding, an honest a review of that transcript does not evidence any bias on the part of Judge Sommer but rather depicts the court’s effort to control a proceeding consistent with the Rules of Practice in the midst of a hotly contested matter in which one counsel was unwilling to abide by those Rules and unwilling to accept the court’s evidentiary decisions.
IV. CONCLUSION
The court has reviewed all of the evidence presented by Attorney Effron in support of his motion to recuse and has reviewed the authorities cited. This court finds no grounds to recuse Judge Sommer from participation in the instant case or other cases involving Attorney Effron. Accordingly, the defendant’s motion to recuse Judge Sommer is denied.