Opinion
No. X06-CV93-0157085 S
July 21, 2006
MEMORANDUM OF DECISION
The defendant Bridgeport Roman Catholic Diocesan Corporation and its former officials (collectively, the Diocese) have filed a motion to disqualify me from considering or deciding any contested matter relating to the above-captioned action and twenty-two related cases currently pending before this court. The twenty-three cases are before me on remand from our Supreme Court. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168 (2005). They each involve lawsuits filed in the mid-1990s alleging sexual abuse of minors by clergymen employed by the Diocese. The lawsuits were withdrawn on March 12, 2001. The New York Times Company, The Hartford Courant, Globe Newspaper Company and The Washington Post Company (hereinafter, the newspapers) subsequently moved to intervene in the twenty-three actions for the limited purpose of seeking to vacate sealing orders and protective orders entered by the court in those actions. Our Supreme Court held that the "trial court did not abuse its discretion in permitting the newspapers to intervene in the withdrawn cases for the limited purpose of litigating the issue of whether the protective orders in those cases should be vacated or otherwise modified." Id., 192-93. The Supreme Court remanded the cases to the trial court for a de novo determination of the merits of the newspapers' request to unseal the court files in the withdrawn cases. Id., 193. It is that issue which is currently pending before this court.
The following former officials of the Bridgeport Roman Catholic Diocesan Corporation have joined in the motion to disqualify: The Reverend Monsignor Laurence Bronkiewicz, the Reverend Monsignor Thomas Driscoll, Bishop Edward Egan and the Reverend Monsignor Andrew Cusack.
The twenty-three lawsuits in which the defendants have moved for disqualification are: (1) William Kramer v. Bridgeport Roman Catholic Diocesan Corporation, et al, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-95-0157311 S; (2) S.P. Carr v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-95-0159118 S; (3) M. McDonough v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-97-0157365 S; (4) J. Knecht v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-96-0157367 S; (5) William Slosser v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159073 S; (6) Ronald Slosser v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159072 S; (7) Sandra Forsberg v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159066 S; (8) Alvin Koscelek v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159067 S; (9) Katherine Landro v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159068 S; (10) J.L. Powers v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159069 S; (11) Jenilee Rosado v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159070 S; (12) James See v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159071 S; (13) J. Harding v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-95-0157368 S; (14) M. Didato v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-95-0157370 S; (15) John Doe v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-99-01157369 S; (16) James Krug v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-93-0157366 S; (17) Jamie Belleville v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-93-0157371 S; (18) Paul Doyle v. Bridgeport Roman Catholic Diocesan Corporation, et al, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-94-0159065 S; (19) Theresa Pace v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV-95-0157086 S.; (20) Richard Rosado v. Bridgeport Roman Catholic Diocesan Corporation, et al., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV95-0157364 S.; (21) George Rosado v. Bridgeport Roman Catholic Diocesan Corporation, et al., Docket No. X06-CV-93-0157085 S; (22) Sharon See v. Bridgeport Roman Catholic Diocesan Corporation, et al., Docket No. X06-CV-93-0157363 S; and (23) J. Fleetwood v. Bridgeport Roman Catholic Diocesan Corporation, et al., Docket No. X06-CV-95-0156274 S.
The Diocese asserts that my appointment to and service on the Judicial Branch's Public Access Task Force prevents me from simultaneously serving as the judge presiding over this litigation. The Diocese contends that my disqualification is mandated by the Code of Judicial Conduct because my role as a member of the task force raises an appearance of impropriety regarding my ability to fairly and impartially decide the issues raised in these court cases. The newspapers oppose the motion to disqualify and maintain that the judicial canons do not call for disqualification. A review of the Code of Judicial Conduct and the relevant case law interpreting the Code demonstrate that disqualification is not warranted.
The factual backdrop to the Diocese's motion to disqualify is not in dispute. In May 2006, Senior Associate Justice David Borden of the Connecticut Supreme Court, exercising the powers and authority of the office of Chief Justice pursuant to General Statutes § 51-3, established the Public Access Task Force. Associate Justice Richard Palmer of the Connecticut Supreme Court was appointed chair of the task force and I, along with sixteen others, were appointed members of the task force. The task force's membership includes judges, attorneys and media representatives. Justice Borden in his opening remarks at the first meeting of the task force on May 25, 2006 stated that "The mission of the task force is to make concrete recommendations for the maximum degree of public access to the courts, consistent with the needs of the courts in discharging their core functions of adjudicating and managing cases." He further stated that the public has a strong and legitimate interest in the transparency and openness of the Judicial Branch, but "transparency and openness must always be balanced against other legitimate interests, such as legitimate expectations of privacy, legitimate concerns for security, and legitimate needs of confidentiality. He charged the task force with submitting to him by September 15, 2006 recommendations in the following three areas: (1) ways in which accessibility can be made easier in matters that are already open and accessible to the public; (2) matters which are not currently open and accessible to the public but which should be open and accessible, either in whole or in part; and (3) issues regarding public access that need to be addressed by the Judicial Branch in the future.
General Statutes § 51-3 provides that: "In case of the death, disability, impeachment, resignation, absence from the state or other inability of the Chief Justice of the Supreme Court to exercise the powers and authority appertaining to the office of Chief Justice, the senior acting judge of said court for the time being shall exercise such powers and authority."
The full membership of the task force consists of Associate Justice Richard N. Palmer; Judge William J. Lavery, Chief Court Administrator; Aaron Ment, Judge Trial Referee; Appellate Court Judge Douglas Lavine; Judge Jon Alander; Judge Patrick Clifford; Judge Julia DiCocco Dewey; Judge Barbara Quinn; Judge Barry Stevens; Patrick Sanders, Associated Press; Attorney Aaron Bayer; Dr. William Cibes, Jr.; Attorney Alan Neigher; Heather Collins, Journal Inquirer; Erin Cox, WTNH, Channel 8; Alaine Griffin, Hartford Courant; Zach Lowe, Stamford Advocate; and Ken Margolfo, WTIC, Channel 61.
The task force subsequently formed three committees: (1) the court records committee; (2) the judicial meetings and administrative records committee; and (3) the judicial proceedings committee. I was named co-chair of the court records committee which, as the name implies, was charged with reviewing issues surrounding public accessibility to court records. Alaine Griffin, a reporter with the Hartford Courant and a member of the task force, was named a member of the committee. The work of the court records committee and the Public Access Task Force continues to this day. The court records committee is scheduled to make its recommendations to the task force on August 3, 2006 and the task force is scheduled to make its recommendations to Justice Borden on September 15, 2006.
The Diocese argues that my participation on the task force conflicts with my duty to impartially decide the issues in these court cases. Specifically, the Diocese maintains that the task force will be discussing and making recommendations regarding issues of public access to court records, issues which it asserts lie at the heart of the litigation in these cases. It further asserts that the express mandate of the task force is to make recommendations to foster the maximum degree of public access to court documents, an advocacy position which the Diocese contends coincides with the interests of the intervening newspapers in these cases and contrary to its interests here. The Diocese further argues that the appearance of impropriety is compounded by the presence on the task force of a representative of the Hartford Courant, a party to the litigation, and other members of the media. The Diocese contends that these circumstances would cause a reasonable person to reasonably question my impartiality to decide the issues involved in this litigation and, therefore, my disqualification is mandated by Canon 3(c) of the Code of Judicial Conduct. I do not agree.
The ethical obligations of a Superior Court judge are set forth in the Code of Judicial Conduct. The provisions of the Code relevant to the pending motion to disqualify are contained in Canon 3(c) and Canon 4. Canon 3(c)(1) of the Code of Judicial Conduct provides that: "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . ." Canon 4 authorizes a judge to engage in activities to improve the law, the legal system, and the administration of justice. It provides in pertinent part that a judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice and may serve as a member of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice "if in doing so the judge does not cast doubt on the judge's capacity to decide impartially any issue that may come before him or her." To prevail on its claim of a violation of canon 3(c)(1), a party need only show that the conduct in question gives rise to a reasonable appearance of impropriety; it need not show actual bias. Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 820 (1998). The standard is an objective one. "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 . . . 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 his . . . impartiality, on the basis of all of the circumstances . . ." (Citations omitted; internal quotation marks omitted.) Id. See also Burton v. Mottolese, 267 Conn. 1, 30 (2003).
The full text of Canon 3(c)(1) follows: "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (B) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (C) the judge knows that he or she, individually or as a fiduciary, or his or her spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (D) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding."
Canon 4 provides as follows: "A judge, subject to the proper performance of his or her judicial duties, may engage in the following quasi-judicial activities, if in doing so the judge does not cast doubt on the judge's capacity to decide impartially any issue that may come before him or her: (1) A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice. (2) A judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice. (3) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. The judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. The judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."
To know whether disqualification is warranted here, it is necessary to analyze the facts as presented by the Diocese in its motion to disqualify. It is also necessary to distinguish between fact and characterization as opinion and conclusions are not appropriate bases for disqualification. Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 50 (2003). The Diocese submitted two affidavits signed by its attorney setting forth the facts which it contends support disqualification. The affidavits include as appendices the public statements of Justice Borden regarding the Public Access Task Force and the minutes of the meetings of the committee on access to court records. The Diocese does not assert that I have made any comment or had any discussions concerning the pending litigation. The Diocese also does not assert that I have made any statement or advocated any position which is contrary to its legal claims in this litigation. Rather, it claims that the task force itself has been established to advocate the "maximum" disclosure of information to the public, a position the Diocese claims is the one held by the newspapers in this case, rather than more limited disclosure which protects rights of privacy, which the Diocese asserts is commensurate with its position here. The Diocese however mischaracterizes the work of the task force. The express mission of the task force is to "make concrete recommendations for the maximum degree of public access to the courts, consistent with the needs of the courts in discharging their core functions of adjudicating and managing cases." Moreover, Justice Borden stated in his opening remarks to the task force that public access must be balanced against other legitimate interests, including legitimate expectations of privacy. The task force's charge and its discussions recognize that it is not, as the Diocese suggests, an either/or proposition, that is, one is either in favor of public access or in favor of the right of privacy. Rather, issues of public access involve a weighing of competing interests, including the interests of public access and privacy, with the result in any instance heavily dependent on the circumstances. In short, the facts, as presented by the Diocese, do not support the characterization that the task force is an advocacy body for the press.
It is important to note that my statements and positions on issues addressed by the task force are a matter of public record. The meetings of the task force are open to the public and broadcast on television and on the internet. The meetings of the committees of the task force are also open to the public and the minutes of those meetings are publicly accessible on the judicial branch's website.
Stripped of its conclusory allegations, the claim of the Diocese boils down to a contention that my disqualification as the judge presiding over these court cases is mandated because the task force will address issues which are likely to arise in the litigation. The Diocese's claim is wrong factually and legally. It is wrong factually because the issues addressed by the task force and those arising in this litigation are distinct. The issues confronting the members of the task force concern recommendations as to what the policy and law should be regarding public access to court records. In contrast, the issues posed in these court cases concern what is the existing law regarding public access and how does it apply to the facts of these cases. Judges are expected to and do segregate their personal views on what the law should be from their daily duty to apply the law as it exists. It would not be reasonable for an objective observer to believe that I could not do the same here.
I do not go outside the factual record submitted by the Diocese in reaching this conclusion. It is evident from the attachments submitted by the Diocese in support of its motion that the work of the task force is focused on future policy recommendations.
The Diocese's claim is wrong legally because the case law is clear that general expressions of opinion on a topic by a judge are not grounds for disqualification. Papa v. New Haven Federation of Teachers, 186 Conn. 725 (1982). The factual situation of Papa is instructive. On October 7, 1975, at a time when a strike of New Haven public school teachers was impending, Judge George Saden gave a speech to a group of newly admitted lawyers in which he criticized illegal teacher strikes. His comments included statements that by engaging in illegal strikes, public school teachers were "acting without intelligence," setting a bad example for their students, and deserving of society's disrespect. The next month, a strike of New Haven public school teachers occurred. On November 13, 1975, a motion for contempt for violating a court order enjoining the strike was heard before Judge Saden. The defendant New Haven Federation of Teachers and twelve teachers who comprised its negotiating committee moved to disqualify Judge Saden because of the speech he had given one month earlier. He denied the motion and found the defendants in contempt. Our Supreme Court affirmed the denial of the motion to disqualify. With regard to the speech, the court ruled that general, extrajudicial comments concerning legal issues do not disqualify a judge from hearing later cases involving those issues. Id., 743-44. Since Judge Saden was not specifically commenting on the impending New Haven teachers' strike in his speech, his disqualification from the court case was not warranted.
The Supreme Court did reverse a subsequent denial by Judge Saden of a motion to disqualify based on comments made by the judge to a newspaper reporter. On November 23, 1975, after his initial finding of contempt against the New Haven teachers in which he ordered a number of teachers incarcerated, a portion of an interview with Judge Saden was published in the Hartford Courant. In the article, Judge Saden was quoted as commenting on the pending litigation. "The law says the teachers can't strike, and if Monday arrives with no settlement, a second group of teachers will be processed through his court and sent to jail, he said." Papa v. New Haven Federation of Teachers, 186 Conn. 725, 750 n. 18 (1982). The next day, November 24, 1975, the defendants filed another motion to disqualify Judge Saden which he denied. The Supreme Court found that Judge Saden's comments to the reporter violated Canon 3(a)(6) which expressly provides that a judge should abstain from public comment about a pending or impending court proceeding. Id., 747.
The rule that extrajudicial expressions of opinion on questions of law are not grounds to disqualify a judge is one of long-standing in this state. "A [judge] is bound by his oath not to be `of counsel in any quarrel that shall come before him'; and he ought also to be cautious in declaring extrajudicial opinions, lest an undue use should be made of them; yet he is not, merely by having manifested his opinion on a question of law, legally disqualified from judging in a cause in which that question comes up . . ." Wilson v. Hinkley, Kirby 199, 201 (Conn. 1787). Other jurisdictions concur. See, e.g., Judicial Inquiry Commission of West Virginia v. McGraw, 171 W. Va. 441 (1983) (The court held that a judge was not required to disqualify himself from a court case pursuant to Canon 3(c)(1) because of public statements expressing his opinion on a question of law involved in the case) and United States v. Snyder, 235 F.3d 42, 48 (1st Cir. 2000) ("A judge's views on matters of law and policy ordinarily are not legitimate grounds for recusal, even if such views are strongly held.") Indeed, The Reporter's Notes to Canon 4 of the Code of Judicial Conduct recognize that a judge's statements regarding his personal views on proposed improvements to the law do not disqualify him from a pending case. See E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct (1973), p. 74 (A judge may "commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written.")
Case law also confirms that service on a commission concerned with improving the legal system and the administration of justice, without more, is not a basis for disqualification. See State v. Knowlton, 123 Idaho 916 (1993) (trial judge in a criminal case involving the sexual assault of a child by the defendant was not required to disqualify himself because of his service on the Governor's Task Force for Children at Risk, notwithstanding the fact that a responsibility of the task force was to work toward the goal of criminal prosecution of all substantiated cases of criminal abuse and. neglect); State v. Haskins, 573 N.W.2d 39 (Court of Appeals of Iowa 1997) (trial judge's service on a committee on domestic abuse did not require recusal in a criminal case alleging domestic violence); State v. Carlson, 833 P.2d 463 (Court of Appeals of Washington 1992) (trial judge's participation in Kid's Court, a program designed to prepare children who were the victims of sexual abuse to testify in court, did not warrant disqualification from a criminal trial for child rape); and United States v. Payne, 944 F.2d 1458, 1477 (9th Cir. 1991) (trial judge's participation on the Attorney General's Commission on Pornography did not necessitate disqualification from a trial for carnal knowledge of a female under the age of sixteen). See also State v. Montini, 52 Conn.App. 682, cert. denied, 249 Conn. 909 (1999) (the court affirmed the denial of a motion to disqualify filed by the defendant in a criminal trial involving the sexual assault of a child where it was claimed that the judge presiding over the trial was a "nationally known advocate for children's rights," a cofounder of the National Task Force for Children's Constitutional Rights and had served on the Connecticut Bar Association Crime Victims Committee and was chairman of the Subcommittee on Child Victims.) The policy reason underlying the rule that mere participation on a commission dedicated to improving the legal system is insufficient to require disqualification is a compelling one. "To hold otherwise, would deprive the citizens of this state of the knowledge and experience which a judge brings to groups designed to improve the legal system." State v. Knowlton, supra, 123 Idaho 920. It is manifest that judges are often key participants in efforts to improve the legal system and the administration of justice. Those efforts would suffer should the judicial pool of talent and experience evaporate.
Finally, the Diocese asserts that the presence of a reporter from the Hartford Courant on the task force and on the court records committee requires my disqualification because the Hartford Courant is a party to these court proceedings. I do not agree. The Diocese has made no claim and has offered no facts indicating that I have had any discussions with the Hartford Courant reporter concerning this litigation. Absent communications between us concerning the pending cases, her presence on the task force does not require my disqualification in these cases. See Jones v. Jones ( In Re Jackson), 77 Ohio St.3d 1248 (1996) (judge's participation on children services board with the defendant in a domestic relations case is not grounds for disqualification). It is inappropriate for a judge and a party to discuss a pending case. See Canon 3(a)(4). It is not inappropriate for them to publicly discuss ways to improve the legal system. My obligations as a judge mandate that I continue to preside over these cases if disqualification is not appropriate. "[W]here the standards governing disqualification have not been met, disqualification is not optional; rather it is prohibited." Aguinda v. Texaco, Inc., ( In re Aquinda), 241 F.3d 194, 201 (2d Cir. 2001). See also United States v. Snyder, supra, 235 F.3d 46. Accordingly, the motion to disqualify is hereby denied.
Canon 3(a)(4) provides in pertinent part that: "A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . ."