Opinion
No. CV 08 4019030S
June 10, 2009
MEMORANDUM OF DECISION ON MOTION TO REARGUE
In this matter, the court issued an opinion on May 26, 2009, dismissing the plaintiff's administrative appeal. The court's opinion held that the defendant board of firearms permit examiners (the board) had properly affirmed the revocation by the commissioner of public safety (the commissioner) of the plaintiff's permit to carry pistols and revolvers. On June 5, 2009, the plaintiff moved for "re-argument calling for the vacating dismissal and the recusal of the judicial authority."
The motion sets forth the following allegations: (1) The court "worked for the State's Attorney General's Office from (at least) 1993, up until 1998, apparently working in its litigation department"; (2) the Assistant Attorney General who appeared in the administrative appeal on behalf of the board has "worked for the State's Attorney General's Office from (at least) 1993, up through the present"; and (3) the court is known as the "unofficial office historian" of the Attorney General's Office and published a law review article about the attorney general's office in 2007.
The court notes that the motion does not comply with Practice Book § 1-23 as it lacks an affidavit. It is subject to being denied solely on that basis. Burton v. Statewide Grievance Committee, 80 Conn.App. 536, 541 (2003), cert. denied, 268 Conn. 907, 845 A.2d 410 (2004). See also State v. Tunick, 109 Conn.App. 611, 614, n. 3, 952 A.2d 103 (2008).
Based on these allegations, the plaintiff claims that the court had "a duty legally, morally, and ethically" to disclose the "above described ties (as well as any others that may be presently undiscovered)." The lack of disclosure is said to raise issues of the court's "integrity and impartiality." The plaintiff asks that the May 26, 2009 decision be vacated and that the court be disqualified from hearing the matter.
The court replies as follows. Factually the plaintiff is only partially correct. The court served in the office of the attorney general from 1983 to 1997. For certain years, the court and the assistant attorney general assigned to this administrative appeal were in the office of the attorney general together, but the court was assigned to a different department. The court and this assistant attorney general had different direct supervisors, work assignments and physical locations. The court never appeared in a case as an assistant attorney general on behalf of the board or commissioner, and was never involved with the current case in any respect other than as judge. Finally, the article referenced by the plaintiff specifically states in the first paragraph that it only deals with the history of the office from 1897 to 1983.
The criterion for ruling on this motion is stated in Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982): "[A] judge should disqualify himself . . . in a proceeding in which his . . . impartiality might reasonably be questioned . . . 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." (Brackets omitted; internal quotation marks omitted).
In light of the facts and the law, the court denies the motion to re-argue and recuse. Whether the court lacked "integrity and impartiality" as required by Canon 2 (a) in not disclosing "ties" to the office of the attorney general, the disclosure requirement depends on whether Canon 3(c)(1)(A) and/or (B) would be violated by the court's presiding on the case. With regard to Canon 3(c)(1)(A), the court did not, nor does it have, a "personal bias or prejudice" against the plaintiff. The court had no "personal knowledge of disputed evidentiary facts concerning the proceeding."
While the plaintiff's citation is to 2 (b), the correct citation is "2(a)."
Whether the motion is framed as one of disqualification or a lack of disclosure, the ethical analysis is the same. See In re LaBombard, 11 N.Y.3d 294, 298, 898 N.E.2d 14 (2008).
With regard to Canon 3(c)(1)(B), the court did not "serve as a lawyer in the matter in controversy." Nor does the following reason for disqualification apply: "[A] lawyer with whom the judge previously practiced law served during association as a lawyer concerning the matter." Clearly the assistant attorney general in this case never served as an attorney in this matter at the time that the court was also in the office of the attorney general.
In addition, the plaintiff correctly quotes from the commentary to Canon 3(c) that a judge formerly employed by a governmental agency is not associated with his former colleagues, but should disqualify himself if "his or her impartiality might reasonably be questioned because of such association." Here the facts show that the court last was associated with the office of the attorney general in the late 1990's, did not represent the board or the commissioner, was not in the same department as the assistant attorney general assigned to this case, and the court's law review article concerned a period well before the current time period.
In State v. Montini, 52 Conn.App. 682, 685, 730 A.2d 76 (1999), the Appellate Court rejected a disqualification motion that claimed the judge improperly presided over a case of sexual assault. It was alleged that the judge was a nationally-known advocate for children's rights. The Appellate Court characterized the disqualification motion as mere speculation.
The case here is no different from State v. Bunker, 89 Conn.App. 605 (2005), appeal dismissed, 909 A.2d 521 (2006). "After examining the totality of the circumstances, including the amount of time that had elapsed and the limited nature of the involvement, we conclude that [the judge's] impartiality cannot reasonably be questioned on the basis of her role as supervisory prosecutor at the time of the defendant's prior convictions." Id., 622. See also Bonelli v. Bonelli, 214 Conn. 14, 570 A.2d 189 (1990).
The court refers the plaintiff to J. Alfini, Judicial Conduct and Ethics, § 4.10A, page 4-54 (4th edition, 2007): "Such a judge may be required to disqualify, however, if his or her impartiality may reasonably be questioned because of a special or close professional relationship with a government attorney appearing before the Court. Arguably, such a conclusion would be reached where a government attorney brought a case before the judge that was active while the judge was associated with the government agency. Nevertheless, one reviewing Court ruled that a judge should not be disqualified just because he had served as a government prosecutor of a defendant currently before his court. There, the judge had not personally prosecuted the defendant and there was no showing of bias or prejudgment."
Since the court would not, and did not, violate Canon 3(c) in hearing the administrative appeal, the plaintiff's claim that the court was obliged to disclose an alleged relationship with the office of the attorney general lacks merit. Therefore, the motion to re-argue is denied.