Opinion
No. CV97 0573377
September 24, 1998
MEMORANDUM OF DECISION
The plaintiff, a member of the Connecticut Bar, appeals pursuant to Practice Book § 2-38 from a decision of the Statewide Grievance Committee (Committee) reprimanding her for a violation of Rule 8.2(a) and 8.4(d) of the Rules of Professional Conduct.
"Rule 8.2. Judicial and Legal Officials (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, ajudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office."
"Rule 8.4. Misconduct It is professional misconduct for a lawyer to: . . . (4) Engage in conduct that is prejudicial to the administration of justice. . . ."
The Committee found that the plaintiff made statements about the integrity of judges of the Superior Court which she knew were false or made with reckless disregard for their truth or falsity.
The plaintiff complained by letter of December 12, 1995, to the Chief Justice of the Connecticut Supreme Court about the conduct of three judges of the Superior Court. (Return of Record (ROR), Item 1, pp. 5-6.) Two of the judges referenced in the letter complained to the Committee by letters of June 11, 1996, and June 20, 1996. (ROR, Item 1, pp. 3-4, 34-35.) The Fairfield Judicial District Grievance Committee on July 8, 1996, filed a complaint against the plaintiff (ROR, Item 1, p. 1); which, pursuant to Practice Book § 2-32, was referred to the Stamford-Norwalk Judicial District Grievance Panel on July 9, 1996, for a determination of whether there was probable cause that the plaintiff had engaged in misconduct. (ROR, Item 2.) The plaintiff responded to the grievance complaint with written responses on July 17, 1996, August 19, 1996, September 4, 1996, and September 11, 1996. (ROR, Items 5, 6, 8, 9.) The panel found probable cause that the plaintiff had violated Rules 8.2(a), 8.4(3) and 8.4(4) of the Rules of Professional Conduct. (ROR, Item 10.)
Pursuant to Practice Book § 2-35, the grievance was assigned to a reviewing committee of the Statewide Grievance Committee. (ROR, Item 11.) A hearing was scheduled for 2:30 p. m., February 5, 1997. Notice of such hearing was sent to the plaintiff on January 2, 1997, advising her:
You are expected to appear at the hearing at the time and date set forth above. A request for an alternative date or time will only be considered if received in writing within seven days of the date of this letter. Said request will be granted only under extreme circumstances.
In the event that a party does not appear, the hearing will be held and a determination will be made on the evidence presented at the hearing and the record of the grievance panel.
(ROR, Item 11.)
The plaintiff failed to appear at the hearing, and did not submit a written request for a continuance. In the week prior to February 5, 1997, the plaintiff left a voice mail message requesting a continuance but referencing an incorrect hearing date. The plaintiff was notified by telephone of the correct hearing date. The Committee was advised, on the date of the hearing, that the plaintiff was participating as an attorney in a jury trial. The Committee proceeded with the hearing.
The plaintiff on February 7, 1997, requested that the Committee reopen the hearing. (ROR, Item 13.) This request was denied by the Committee on March 5, 1997. (ROR, Item 16.) The Committee rendered a proposed decision finding by clear and convincing evidence that the plaintiff violated Rules 8.2(a) and 8.4(4), and recommending that the plaintiff be reprimanded. (ROR, Item 18.) The plaintiff was afforded an opportunity to comment on the proposed decision before the Committee acted on it, and did so by letters dated August 11, 1997, and August 12, 1997. (ROR, Items 24, 25.) The Committee on August 21, 1997 adopted the proposed decision and reprimanded the plaintiff. (ROR, Item 26.)
The plaintiff brought this appeal on September 5, 1997. The record was filed on September 23, 1997. Briefs were filed by the plaintiff on February 6, 1998 and April 23, 1998, the defendant on March 4, 1998 and April 28, 1998. The court heard the oral arguments of the parties on July 30, 1998.
In the course of these proceedings, the plaintiff has twice filed motions to disqualify the undersigned judicial authority. The first motion, dated February 6, 1998, failed to include the requisite affidavit and good faith certification. See Practice Book § 1-23. The motion was denied at a hearing on April 13, 1998. The plaintiff was advised by notice of June 4, 1998, that this appeal would be heard on the merits on July 30, 1998, at 10:00 a.m. Despite such notice and the Court's admonition on April 13, 1998, that her motion to disqualify must conform to § 1-23, the plaintiff again filed a motion to disqualify that did not conform to Practice Book § 1-23. This motion not only lacked the affidavit and good cause certificate, but was untimely, having been filed in court at the hearing on July 30, 1998. The motion is devoid of any factual assertion, merely alleging in ¶ 2: "By his conduct, Judge McWeeny has created the appearance that he is not an impartial judge in the matter."
"Sec. 1-23. Motion for Disqualification of Judicial Authority A motion to disqualify a judicial authority shall be in writing and shall be 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 is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time."
Transcript of court hearing April 13, 1998, p. 6, the Court: "And I also would add that the motion for disqualification, under the section 1-23, requires an affidavit setting forth the facts relied upon, show the grounds for disqualification and the certificate of the counsel of record that the motion is made in good faith. Those are mandatory requirements and have not been met here. So I'm denying the motion to disqualify."
Recently, in Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 588 (July 28, 1998), the court held:
"A motion to disqualify a judicial authority shall be in writing and shall be 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 is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time." Practice Book § 997, now Practice Book (1998 Rev.) § 1-23. "This provision creates a mandatory procedure to be followed by any party seeking to recuse a judge. See State v. Cook, 183 Conn. 520, 521-23, 441 A.2d 41 (1981)." State v. Weber, 6 Conn. App. 407, 412, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). "`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)." State v. Teel, 42 Conn. App. 500, 506, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996).
The plaintiff failed to show good cause for her delay in filing the motion to disqualify. She was sent notice of the hearing date and her oral claim made at the hearing relates to an alleged telephone conversation occurring on April 13, 1998. The absence of an affidavit, certificate of good cause, as well as the untimely filing of the motion denied the court an adequate opportunity to evaluate the plaintiff's allegations, and, if necessary, refer the motion to another judge for hearing prior to the scheduled date of the hearing on the merits. The plaintiff has given no reason why she could not follow the requirements of Practice Book § 1-23 in filing her motion. The court will not recuse itself on the basis of an eleventh-hour motion that does not comply with Practice Book § 1-23 and contains only a vague, conclusory allegation that the judicial authority is not impartial.
At the July 30, 1998 hearing, the plaintiff introduced a copy of a lawsuit dated July 29, 1998, allegedly filed in U.S. District Court against the Statewide Grievance Committee, Bar Counsel Daniel Horwich, and Judges Mihalakos, Moraghan and Stodolink. The lawsuit also names this court, in his official capacity. (See Plaintiff's Exhibit A.) The lawsuit, which has subsequently been served upon this court, contains statements specifically referring to this court in the introduction section (see Plaintiff's Exhibit A, paras. 8, 28-34); however, in each of the five counts of the complaint, the plaintiff states: "Defendant McWeeny is excluded from this count." (See Plaintiff's Exhibit A, paras. 62, 65, 68, 71, 74.)
A judge is not automatically disqualified solely because a litigant in a pending case before the judge has named that judge in a separate action. "[A] judge is not disqualified merely because a litigant sues or threatens to sue him. Such an easy method for obtaining disqualification should not be encouraged or allowed." (Citations omitted; internal quotation marks omitted.) In re Rowan, 680 P.2d 107, 117 (Ariz. 1983); see In re Disqualification of Kilpatrick, 546 N.E.2d 929, 930 (Ohio, 1989). In this case, as previously noted, the plaintiff's motion to disqualify does not meet the Practice Book requirements and the plaintiff has not presented an affidavit or evidence showing the reasons why this court's impartiality might reasonably be questioned. Therefore, this court will not recuse itself based upon the plaintiff's July 29, 1998, filing of the federal lawsuit. In the federal lawsuit, the plaintiff merely reiterates the same vague and conclusory allegations of bias and partiality that she orally made at the July 30, 1998 hearing in support of her untimely motion to disqualify. As stated above, the court finds that the plaintiff's claim could have and should have been raised in the manner required by the Practice Book and that the plaintiff has not provided any explanation for not following that procedure.
The Uniform Administrative Procedure Act (UAPA § 4-166, et seq.) does not apply to the Committee, but the same principles as to the scope of judicial review are applicable. Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 234 (1990). In reviewing the decision of the Committee, the trial court does not take on the function of a factfinder. "Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence and whether the conclusions are legally and logically correct." Weiss v. Statewide Grievance Committee, CT Page 10933 227 Conn. 802, 812 (1993). Pursuant to Practice Book § 2-35 the appeal shall be conducted by the court without a jury and is confined to the record.
The plaintiff in a general fashion challenges the decision on three basic grounds: 1) constitutional due process grounds for proceeding in her absence, and not reopening the hearing, 2) constitutional first amendment grounds and a privilege claim relating to a General Statutes § 51-51j, and 3) a challenge to the evidentiary basis of the decision.
The plaintiff cites no authority for her claim of entitlement to a continuance. Such a right has not been recognized. State v. Bethea, 167 Conn. 80, 83 (1979); State v. Beckenbach, 198 Conn. 43, 47-48 (1985). A request for continuance is addressed to the discretion of the tribunal and there is no mechanical test for determining whether the denial of a continuance constitutes an abuse of such discretion. Statewide Grievance Committee v. Freidland, 222 Conn. 131, 142 (1992). The issue is determined by the particular circumstances of each case, with special attention given to the situation at the time the request was denied. Ridgeway v. Ridgeway, 180 Conn. 533, 539 (1980).
Here, the plaintiff was explicitly notified by letter of January 2, 1997, of a February 5, 1997, 2:30 p. m. hearing. (ROR, Item 11.) The notice advised her that she was "expected to appear at the hearing," "request for an alternative date or time will only be considered if received in writing within seven days," "such request will be granted only under extreme circumstances," and that the hearing would proceed even if a party failed to appear. (ROR, Item 11.)
The plaintiff's claim, at oral argument, is that she had been on trial for a month and was in closing argument on the afternoon of February 5, 1998. If this were the case, then she could have filed a timely written request for a continuance. Ordinarily, participation as an attorney in a jury trial would have constituted grounds for a continuance of an administrative proceeding. Unfortunately, the plaintiff neglected to request a continuance in a timely fashion, or make any written request for a continuance. The only action undertaken by the plaintiff was to leave a message during the week prior to the week of the hearing, "requesting a continuance but referencing a day during that week which was not the one scheduled for the hearing." (ROR, Item 12, February 5, 1997 hearing transcript, p. 1, statements of Attorney Christopher Blanchard.) The plaintiff was then left a message indicating the correct date for the hearing. (ROR, Item 12, February 5, 1997 transcript, p. 2.)
The plaintiff also at oral argument sought to introduce evidence that she was on trial on February 5, 1997. That the plaintiff was on trial was never disputed. The plaintiff also sought to introduce evidence relating to the merits. Such evidence is not for the trial court as proceedings under this type of appeal are limited to the record. Practice Book § 2-38.
"I should point out to the Reviewing Committee I received a call from Ms. Burton last week, claiming she desired a continuance regarding a hearing on Friday. I contacted Ms. Burton's office and left a message that there was no hearing scheduled for Friday, that the hearing was scheduled for Wednesday, and I assumed that there was no problem with the Wednesday date. Her request was regarding a different — a totally different date than today's date. So, I haven't heard anything from her regarding a request for continuance from today's date at all. . . . I received a voice mail message from her, and I left a message on her answering machine, her office answering machine, where I indicated that the hearing date was today. And my understanding was she had a mix up of dates." (ROR, Item 12, February 5, 1997 transcript, pp. 1-2, statements of Attorney Christopher Blanchard.)
The Committee proceeded with the hearing. The plaintiff by letter of February 7, 1997, (ROR, Item 13) requested that the Committee reopen the hearing and continue it to a date by which she would have received the transcript. The counsel to the Fairfield Grievance Panel did not object to reopening the hearing to allow the plaintiff to testify. (ROR, Item 15.) The Committee denied the plaintiff's request to open the hearing. (ROR, Item 16.) The Committee issued a proposed decision on June 9, 1997, allowing the parties fourteen days to submit statements on the proposed decision. (ROR, Item 18.) Judges Mihalakos and Moraghan responded with letters of June 12 and 13, 1997. (ROR, Items 19, 20.) The plaintiff was afforded additional time until August 11, 1997 to respond. (ROR, Item 23.) The plaintiff responded on August 11 and August 12, 1997. (ROR, Items 24, 25.)
The plaintiff in her letters of February 7, June 26, 1997, August 11 and August 12, 1997, failed to offer any explanation for her failure to request a continuance in writing within seven days of the January 2, 1997 notice. (ROR, Items 13, 22, 24, 25.) There is also no comment in any way contradicting Attorney Blanchard's description of the exchange of telephone messages preceding the February 5, 1997 hearing. It is not disputed that the plaintiff was participating in a jury trial on February 5, 1997; or that she had been participating in the trial for a significant period of time prior to February 5, 1997. There is no indication that she sought permission of the trial court to participate in the grievance hearing on the afternoon of February 5, 1997. There is no explanation of her failure to comply with the Committee's rule that requests for continuances be in writing. The plaintiff, in response to her telephone request for a continuance regarding a hearing on an incorrect date, was left a telephone message advising her of the correct date for the hearing. The record contains no evidence that the plaintiff contacted the Committee in any fashion after being telephonically notified of the correct hearing date.
The Rules of Practice set forth an expeditious time frame for the processing of attorney grievances, § 2-35. The Fairfield Grievance Panel had by October 8, 1996, determined probable cause that the plaintiff had engaged in misconduct pursuant to § 2-35(e). The Committee should have rendered a written decision within ninety days. Thus, the Committee was already in excess of the time standard on February 5, 1997. The Grievance Panel did not oppose allowing the plaintiff to testify at a reopened hearing, but apparently the plaintiff wished to recall the earlier witness. (See Return of Record, Item 25, p. 1, para 2: "Mr. Ferrio objected to any continuance for the purpose of cross examination of the complaining witnesses.").
The plaintiff ignored the Committee's somewhat stringent, but not unreasonable, rules regarding continuances. She provided no written request for a continuance, and not even an oral request addressed to the correct date. No explanation was ever offered for her inability to comply with the continuance rules.
As noted above, the decision on a continuance is of a discretionary nature. State v. Beckenbach, supra, 198 Conn. 47; State v. Jurgenson, 42 Conn. App. 751, 759 (1996). The Committee did not abuse that discretion in failing to grant a continuance based upon an oral request for continuance directed to an incorrect date. The Committee further did not abuse its discretion in declining to reopen the hearing based upon the plaintiff's unavailability on the scheduled hearing date when the plaintiff had failed to properly request a continuance prior to that hearing date.
The plaintiff claims a violation of constitutional rights to due process of law in the Committee's decision to proceed in her absence. Due process requires that a party adversely affected by government action be afforded an opportunity to be heard. Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 502 (1986); Murphy v. Berlin Board of Education, 167 Conn. 368, 374 (1974);Hart Twin Volvo Corp. v. Commissioner of Motor Vehicles, 165 Conn. 42, 44-46 (1973).
In Rogers v. Commission on Human Rights Opportunities, 195 Conn. 593, 548 (1985), the court held:
The plaintiff's own inaction in response to actual notice cannot be made the basis of a claim, that he was not afforded due process. As the United States Supreme Court recently explained, there is no absolute due process right that "entitles every civil litigant to a hearing on the merits in every case. . . . And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule."
(Citations omitted; internal quotation marks omitted.) As noted in Al-Charles, Inc. v. Heintz, 620 F. Sup. 327, 331 (D. Conn. 1985), "[t]he law of the Second Circuit, and of this district in particular, is clear that if a plaintiff chooses not to take part in a state provided administrative and judicial review procedure whose purpose is to afford him due process, he cannot later claim he was denied due process by the state." Clearly, "[t]he availability of recourse to a constitutionally sufficient administrative procedure satisfies due process requirements if the complainant merely declines or fails to take advantage of the administrative procedure." Dusanek v. Hannon, 677 F.2d 538, 542-43 (7th Cir. 1982), cert. denied, 459 U.S. 1017, 103 S.Ct. 379, 74 L.Ed.2d 512 (1982).
The Committee's reasonable rules did not deprive the plaintiff of due process of law. The plaintiff's unexplained failure to properly request a continuance caused her to lose her opportunity to directly participate in the hearing afforded her.
The plaintiff's First Amendment claims have been rejected in a number of cases arising from the application of similar rules in other states. See Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995). "False statements, made with reckless disregard of the truth, do not enjoy constitutional protection." (Citations omitted; internal quotation marks omitted.) Id.; see In re Howard, 912 S.W.2d 61, 63 (Mo., 1995); see Idaho State Bar v. Topp, 925 P.2d 1113, 1116 (Idaho, 1996), cert. denied, ___ U.S. ___, CT Page 10937 117 S.Ct. 1334, 137 L.Ed.2d 493 (1997).
The plaintiff in her complaint also alleges that her conduct was privileged, but fails to brief this issue. An issue not briefed is abandoned. Collins v. Goldberg, 28 Conn. App. 733, 738 (1992). The defense of privilege to an attorney disciplinary proceeding is criticized in dicta inField v. Kearns, 43 Conn. App. 265, 277 note 6 (1996).
The courts of other states have adopted the objective standard used by the Committee in this case. In United States District Court v. Sandlin, 12 F.3d 861 (9th Cir. 1993) the court held that the objective standard should be applied in cases involving comparable provisions of other states' Rules of Professional Conduct. This test was also applied in the following cases: In re Petition for Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn., 1990), cert. denied, sub nom Graham v. Weraz, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990); In the Matter of Westfall, 808 S.W.2d 829 (Mo. 1991), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); In the Matter of Holtzman, 573 N.Y.S.2d 39 (Ct.App.N.Y. 1991); see alsoStanding Committee v. Yagman, 55 F.3d 1430 (9th Cir. 1995).
These cases establish that a lawyer may not impugn the integrity of judges without a reasonable basis to do so.
The best that plaintiff produced before the Grievance Panel was her affidavit, in which she stated: "To the best of my knowledge, information and belief, the said statements are truthful." (See ROR, Items 8, 9.) The court in In the Matter of Westfall, supra, specifically rejected an opinion claim screening a lawyer from responsibility for allegations addressed to the integrity of the judicial process.
The plaintiff was not burdened with the task of disproving the grievance, but rather with offering some evidence substantiating her claims. The absence of a reasonable factual basis for the charges demonstrates the reckless disregard for the truth. See In re Whiteside, 386 F.2d 805, 806 (2d Cir. 1967), cert. denied, 391 U.S. 920 (1968), reh. denied, 393 U.S. 898 (1968); In the Matter of Garringer, 626 N.E.2d 809, 812 (Indiana 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 93, 130 L.Ed.2d 44 (1994).
The plaintiff appears to advocate a system in which she can make any charges she wishes without providing any substantiation of such charges, and it is up to the accused to prove that her charges are untrue.
The plaintiff's challenge to the evidentiary basis of the decision is determined pursuant to the substantial evidence rule.
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact." (Citations omitted; internal quotation marks omitted.)Dolgner v. Alander, 237 Conn. 272, 280 (1996). "An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action." (Citations omitted; internal quotation marks omitted; footnote omitted.) Dolgner v. Alander, supra, 237 Conn. 281. Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Id.
Concerning the charges against Judge Moraghan, the Committee heard the testimonial evidence of Judge Moraghan. The plaintiff's letter of December 12, 1995, alleged that "Judge Moraghan rendered a clearly erroneous decision to go to the financial rescue of a party to litigation, which party was known to him personally as a friend." (ROR, Item 1, p. 5.) The Committee found that the Appellate Court denied certification to appeal Judge Moraghan's decision, which the plaintiff had claimed was "clearly erroneous." The Committee found that the plaintiff's grievance filed against Judge Moraghan had been dismissed. When given the opportunity to comment on the proposed decision the plaintiff produced nothing to refute these findings. The Committee certainly had substantial evidence that the plaintiff's allegations were false and/or made with reckless disregard for their truth or falsity.
The allegation against Judge Stodolink is on its face wildly speculative and without a scintilla of factual support that would suggest the judge's responsibility for the jury array. The plaintiff in her comments on the proposed decision was unable to offer any support for this charge.
The claim against Judge Mihalakos is refuted by the transcript of the proceeding before him on September 14, 1994. (ROR, Item 1, transcript of pretrial.) A review of this transcript shows that an appropriate pretrial proceeding was held. The transcript of the pretrial does not support the plaintiff's tortured construction of that event.
The decision of the Committee is affirmed and the appeal is dismissed.
Robert F. McWeeny, J.