Opinion
FSTFA124023927S
05-05-2017
Chelsea Chapman Kirwan v. Laurence Kirwan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR DISQUALIFICATION, POST JUDGMENT
Donna Nelson Heller, J.
Before the court is the amended motion for disqualification, postjudgment (#507.00) filed by the defendant Laurence Kirwan on February 10, 2017. The defendant seeks an order disqualifying the Honorable Erika M. Tindill from presiding over any proceeding involving the defendant. The parties were before the court on February 27, 2017. The court heard testimony from the defendant, who is representing himself. The court also heard argument from the defendant and the attorney for the plaintiff Chelsea Chapman Kirwan and reserved decision at that time.
The defendant seeks to disqualify Judge Tindill pursuant to Rule 2.11 of the Code of Judicial Conduct, which provides in pertinent part that " [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." Code of Judicial Conduct, Rule 2.11(a)(1). " The standard to be employed when determining whether a judge should recuse herself or himself pursuant to [Rule 2.11] [of the Code of Judicial Conduct] is well established. The standard . . . is an objective one [meant to assess] whether [the judge] 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. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard . . . The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question [the judge's] . . . impartiality, on the basis of all of the circumstances." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 291, 955 A.2d 550 (2008).
The defendant suggests that Judge Tindill cannot be impartial because (i) she was the Superior Court judge who granted the defendant accelerated rehabilitation in a criminal case and (ii) because the defendant has appealed two of her decisions in this action to the Appellate Court (AC40008 and AC40047). This court does not agree. Judge Tindill's impartiality cannot reasonably be questioned in either circumstance.
Judge Tindill's awareness of certain criminal charges that were brought against the defendant--charges that were dismissed when the defendant successfully completed the requirements for accelerated rehabilitation--does not in any way demonstrate that she has a personal bias against the defendant. Similarly, her rulings against the defendant in this family action--rulings which the defendant has appealed--do not show bias or prejudice in any respect. " It is an elementary rule of law that the fact that a trial court rules adversely to a litigant, even if some of these rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias." (Internal quotation marks omitted.) Wendt v. Wendt, 59 Conn.App. 656, 694, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). " Obviously, 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." (Citation omitted; internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn.App. 311, 317, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
Counsel for the plaintiff suggests that the defendant waived any claim that Judge Tindill's involvement in his criminal case meant that she could not be impartial in the family action because he did not raise the issue timely.
Practice Book § 1-22(a), which provides in pertinent part that " [a] judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if . . . the judicial authority previously tried the same matter and a new trial was granted therein or because the judgment was reversed on appeal, " is not applicable here, as the defendant's appeals of Judge Tindill's decisions are still pending.
Indeed, as the plaintiff's attorney points out, a judge is not automatically disqualified even when a litigant files a lawsuit or a grievance complaint against him or her. Subsection (e) of Rule 2.11 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." See also Practice Book 1-22(b) (same).
The defendant also contends that Judge Tindill should be disqualified under Rule 2.3 of the Code of Judicial Conduct because she commented favorably on the plaintiff's handwriting and her attire, thus demonstrating--the defendant maintains--a clear preference for the plaintiff over the defendant. Rule 2.3(a) provides that " [a] judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice." Code of Judicial Conduct, Rule 2.3(a). Subsection (b) of Rule 2.3 states that " [a] judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice or engage in harassment including, but not limited to, bias, prejudice, or harassment based on race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . ." Code of Judicial Conduct, Rule 2.3(b). The Comment to Rule 2.3 provides in pertinent part that " [a] judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute . . . Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based on stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and criminality; and irrelevant references to personal characteristics." Code of Judicial Conduct, Rule 2.3 (comment). According to the defendant, Judge Tindill's comments were " irrelevant references" to the plaintiff's " personal characteristics, " thus demonstrating bias or prejudice.
The defendant, who is a doctor, noted that doctors are known for their bad handwriting. He claims that Judge Tindill's comments constituted harassment because he does not have " showy attire" or " beautiful penmanship."
Our Appellate Court's decision in State v. Herbert, 99 Conn.App. 63, 913 A.2d 443, cert. denied, 281 Conn. 917, 917 A.2d 999 (2007), is instructive. In Herbert, the defendant claimed that several statements by the trial judge " created an appearance of judicial partiality." Id. at 70. The trial judge had reacted strongly when the defendant's mother alleged that her son was being legally lynched. While the majority in Herbert agreed with the defendant " that the trial judge made several comments that demonstrate a temporary lack of circumspection after she was compared to a lynch mob"; id. ; it found that " not every human reaction of this kind or brief departure from the norm constitutes grounds for reversal. As Justice T. Clark Hull once observed while sitting as a judge on this court, 'a judge is a human being, not the type of unfeeling robot some would expect the judge to be. Such a passing display of exasperation, though worsened by its repetition, falls far short of a reasonable cause for disqualification for bias or prejudice . . .'" Id. (citing and quoting Keppel v. BaRoss Builders, Inc., 7 Conn.App. 435, 444, 509 A.2d 51, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986)). The court concluded that the trial judge had not " created an appearance of bias affecting the fairness or integrity of the proceedings or resulting in manifest injustice to the defendant . . ." Id. at 71.
As quoted in the Herbert dissent (Berdon, J., dissenting), the trial judge said that " [a]nd to make an allegation that somehow this court with a strong commitment to civil rights was involved in a legal lynching is enough to make me get very upset. I am not happy with these baseless, slanderous allegations, and I want you to know that . . ." Id. at 75 (dissent). The trial judge also indicated that she was " personally offended." Id. (same).
Judge Tindill's comments regarding the plaintiff's dress and her handwriting are more in the nature of mere pleasantries, particularly when compared to the comments of the trial judge in Herbert . The defendant here has offered no valid reason why a reasonable observer would suspect partiality on the part of Judge Tindill based on such comments. " [S]peculation is insufficient to establish an appearance of impropriety . . . [A] factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge's impartiality . . . Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse . . ." (Internal quotation marks omitted.) Tracey v. Tracey, 97 Conn.App. 278, 281, 903 A.2d 679 (2006).
Accordingly, for the reasons set forth above, the defendant's amended post-judgment motion to disqualify the Honorable Erika M. Tindill from presiding over future proceedings in this case (#507.00) is hereby DENIED.