Opposition Brief — Flanagan v. Judicial Review Council of Connecticut

No. 97-154

CLERK

VUupIivenvse Www» wea

3) FILED

Aue 21 1997

In The

Supreme Court Of The United States

October Term, 1997

*

ROBERT C. FLANAGAN,

Petitioner,

v.

JUDICIAL REVIEW COUNCIL OF CONNECTICUT,

Respondent.

aA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

a

RESPONDENT’S OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

= 2

RICHARD BLUMENTHAL

ATTORNEY GENERAL

OF CONNECTICUT

*CAROLYN K. QUERIJERO

GREGORY T. D’AURIA

Assistant Attorneys General

Office of the Attorney General

55 Elm Street P.O. Box 120

Hartford, CT 06141-0120

* Counsel of Record (860) 566-4990

._—_™-

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................eeeees

COUNTERSTATEMENT OF THE CASE .........

REASONS FOR DENYING THE WRIT ...........

I. The Council Properly Held The

Petitioner's Conduct To Violate The

Canons Of Judicial Ethics. ..................

If. The Council Properly Found The

Petitioner's Conduct "Wilful," As

Charged, And The Connecticut

Supreme Court Did Not Alter That

CAPE WEEE crnccvcavsccnsesssccccece

CETERA se cscbassccenvccseseccoveosccsececs

TABLE OF AUTHORITIES

Cases:

Cincinnati Bar Ass'n v. Heitzler, 32

Ohio St. 214, 291 N.E.2d 477

(SOFED . occ cnccsnduebcipnnds anareeeak tial aarest 9

In Re Flanagan, 240 Conn. 157

(1991) ......... | ep iAaiees 5

In re Zoarski, 227 Conn. 784, 632

ABE LEDGE GI dee hics in auseesheeienks oxatieas 9 1

In the Matter of Ruffalo, 390 U.S. |

544, SB SAR. Te eins eden ack cameensdaic, 9, 10

Screws v. United States. 325 U.S. 91

65 S.CA. BORE GID 6 cdaiverkidin setae 9

Statutes:

Came. Goon. Bet. © SR Sinks cncdbobachcads Uisiinys 2

Comme. Gem, SR, i vs ast conve nce dineolcvscans 4

Conn. Gon. Stat. 6 SI-SiMMME) .. wees iwse cass passim

eT | RP Re re POOL er Oe 5

Com. Gila. TUE, ET ha cic cd Secs Sk dec 8

Rules:

PTI NE Ge noon be eee hess kona 5

iil

Other Authorites:

Code of Judicial Conduct, Canon! .............. 3,5,6,8

Code of Judicial Conduct, Canon2 ......................9

Code of Judicial Conduct, Canon2A ............ 3,6, 7,8

Code of Judicial Conduct, Canon2B .................... 3

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1997

ROBERT C. FLANAGAN

Petitioner

V.

JUDICIAL REVIEW COUNCIL OF CONNECTICUT

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF CONNECTICUT

RESPONDENT'S OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CONNECTICUT

COUNTERSTATEMENT OF THE CASE

On November 13, 1995, Ms. Penny Ross ("the com-

plainant") filed a written complaint with the Connecticut Ju-

dicial Review Council ("the Council") describing a three and

one-half year sexual relationship between the petitioner, a

Superior Court judge, and the complainant, a court reporter

assigned to his courtroom during most of that period. The

complaint contained allegations of harassment and intimida-

tion by the petitioner toward the complainant. /n Re Flana-

gan, 240 Conn. 157, 161-62 (1997). On January 22, 1996,

the Council notified the petitioner that it would hold a confi-

dential probable cause hearing on February 16, 1996. The

notice stated:

The area of inquiry by the Council will be

whether the conduct alleged in the complaint

The Judicial Review Council was established pursuant to Conn.

Const. Art. V, § 7, implemented by Conn. Gen. Stat. §§ 51-51g, to

investigate allegations of judicial misconduct and to impose

discipline where warranted.

Connecticut's legislature has directed the Council to investigate

"every written complaint" brought before it. Conn. Gen. Stat.

§ 51-51/(a). By statute, the Council must notify a respondent of

the complaint and provide him a copy. /d. The Council then

conducts an investigation to determine whether probable cause

exists that "conduct under section 51-51li has occurred..." Jd. At

the investigatory stage, a respondent has the statutory right, if he

chooses, to appear and be heard, and "to offer any information

which may tend to clear him of probable cause to believe he is

guilty of conduct under section 51-5li... ." /d. If the Council's

“preliminary investigation indicates that probable cause exists that

the judge . . . is guilty of conduct under section 51-51i the council

shall hold a hearing concerning the conduct or complaint... ." to

determine whether a violation has in fact occurred and if so, to

issue sanctions. Conn. Gen. Stat. §51-S1/(c). At the public

hearing, a respondent is given a full opportunity to appear and to

respond to the charges. /d.

occurred, and, if it did, whether such conduct

violated Canons 1, 2A, or 2B of the Code of

Judicial Conduct in violation of Section

51-51i(a) of the General Statutes.

Id. at 170.

At the probable cause hearing, the petitioner volun-

tarily appeared with counsel, cross-examined witnesses and

presented evidence. Although he was not obligated to do so,

the petitioner testified and admitted that he had a long-term

consensual sexual relationship with the complainant while

she was assigned to his courtroom as a court reporter. /d. at

rk,

After completing this preliminary investigation, the

Council issued its charges against the petitioner, alleging that

over a period of several years he had had a consensual sexual

relationship with a married court employee (the complain-

ant), and that this conduct violated Canons | and 2A of the

Code of Judicial Conduct and § 51-5li. Jd. Specifically,

these charges read:

Charge 1

Between March 1, 1992, and October 30,

1995, the Honorable Robert C. Flanagan en-

gaged in a consensual sexual relationship with

a married court employee, which conduct re-

sulted in his failure to observe high standards

of conduct so that the integrity and independ-

ence of the judiciary might be preserved, in

violation of Canon 1 of the Code of Judicial

Conduct and Section 51-51i(a)(2) of the Con-

necticut General Statutes.

Charge 2

Between March 1, 1992, and October 30,

1995, the Honorable Robert C. Flanagan en-

gaged in a consensual sexual relationship with

a married court employee, which conduct re-

sulted in his failure to act at all times in a

manner that promotes public confidence in

the integrity and impartiality of the judiciary,

in violation of Canon 2A of the Code of Judi-

cial Conduct and Section 51-51i(a)(2) of the

Connecticut General Statutes. (Petitioner's

App. 81)

The petitioner answered both charges in the same

manner:

The petitioner admits between March 1,

1992, and October 30, 1995, the Honorable

Robert C. Flanagan engaged in a consensual

sexual relationship with a married court em-

ployee, the complainant, Ms. Ross, but denies

the remainder of the charge. (Petitioner's

App. 82)

Pursuant to Conn. Gen. Stat. § 51-S1(/)(c), the Council

thereafter held a public hearing on the charges, took evi-

dence and heard argument. By clear and convincing evi-

dence, the Council found the following facts.

The petitioner, a Connecticut Superior Court Judge,

and the complainant, a court reporter employed by the Judi-

cial Department, engaged in a consensual sexual relationship

from March 1992, to October, 1995. For substantial periods

of time during this relationship, the complainant was consis-

tently assigned as a court reporter to the petitioner's court-

room in G.A. 6 in New Haven. On many occasions the

ee a a

o>

complainant was present in the petitioner's chambers before

the opening of court, during pretrial conferences with coun-

sel present and during recesses. Jn re Flanagan, 240 Conn.

157, 164 (1997)

The Council found that the petitioner had engaged in

this conduct "wilfully," and determined that his conduct vio-

lated Canons | and 2A of the Code of Judicial Ethics and

Conn. Gen. Stat. § 51-51(i)(2). Therefore, by a vote of 9-3,

the Council found the petitioner guilty of both charges. The

Council then voted to issue him a public censure. /d.

He appealed directly to the Connecticut Supreme

Court pursuant to Conn. Gen. Stat. § 51-51r and Connecti-

cut Practice Book § 4150. In a strongly worded opinion by

Chief Justice Robert J. Callahan, a unanimous Connecticut

Supreme Court affirmed the Council's decision. /n Re Fla-

nagan, 240 Conn. 157 (1997).

The petitioner now seeks a writ of certiorari from

this Court.

REASONS FOR DENYING THE WRIT

The petitioner has raised no viable federal claim, and

certainly none warranting this Court's review.

The petitioner seems to raise two issues. First, he

claims that the Council, and then the Connecticut Supreme

Court, sanctioned him for personal conduct. Second, he ar-

gues that the Court "changed" the charges against him from

an allegation of a "non-wilful" to a "wilful" violation.

I. The Council Properly Held The

Petitioner's Conduct To Violate The

Canons Of Judicial Ethics.

Before both the Council and the Connecticut Su-

preme Court, the petitioner argued that his consensual sexual

relationship with the complainant could not constitute a vio-

lation of either Canon 1 or Canon 2A” of the Code of Judi-

cial Conduct, or Conn. Gen. Stat. § 51-51i(a)(2), because it

was a personal relationship. In this Court he persists in his

contention that the Council sanctioned him for purely per-

sonal conduct.

The Connecticut Supreme Court specifically held,

however:

this was not purely personal conduct, because

it took place with a person with whom [the

petitioner] had an ongoing, daily professional

relationship. Indeed, as the review council's

findings indicate, [the complainant] not only

served as the court reporter in [the ‘peti-

tioner's] courtroom, but "on many occasions

[she] was present in [petitioner's] chambers

before the opening of court, during pretrial

conferences with counsel present and during

recesses," occasions when one would not

* Canon 1 of the Code of Judicial Conduct provides: "An

independent and honorable judiciary is indispensable to justice in

our society. A judge should participate in_ establishing,

maintaining, and enforcing, and should himself observe, high

standards of conduct so that the integrity and independence of the

judiciary may be preserved. The provisions of this Code should be

construed and applied to further that objective."

Canon 2A provides: "A judge should respect and comply with the

law and should act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary."

normally expect that the court reporter would

be present. Thus, the risk of injury to public

confidence in the integrity of the judiciary is

substantially heightened in this instance as op-

posed to a case where the affair was with a

person unconnected with his daily activities as

a judge of the Superior Court.

Id. at 191. (emphasis supplied) The Court was therefore jus-

tified in holding:

We are persuaded that a judge's three and

one-half year affair with a married court re-

porter who regularly had been assigned to his

courtroom is conduct properly prohibited by

canons | and 2A because it reasonably could

lead a knowledgeable observer to question

the integrity of the judiciary and to lose confi-

dence therein.

Id. at 189. This application of the facts to state-adopted

statutes and judicial canons raises no federal issue.” On the

contrary, setting and enforcing standards of conduct for a

state's judiciary is distinctly a function of the state itself. The

Connecticut Supreme Court's interpretation is thus the ulti-

mate authority on the issues presented here.

Therefore, the petitioner's discussion about the proposed

commentary to Canon 2A that the Connecticut Superior Court

judges failed to enact (Petitioner's Br. 9, 13) is both immaterial and

irrelevant. It is immaterial because it does not address the issue

raised in this case. It is irrelevant because the action the Superior

Court judges took or did not take in enacting commentary to the

Code did not bind the Council, which had an independent

obligation to construe the Canons and the statutes.

Il. The Council Properly Found The

Petitioner's Conduct "Wilful," As

Charged, And The Connecticut Supreme

Court Did Not Alter That Charge or

Finding.

The Council specifically found that the petitioner had

engaged in the consensual sexual relationship wilfully. /d. at

164. The petitioner did not contest this factual finding be-

low, but claimed that the finding did not support a "wilful

violation of . . . any canon of judicial ethics," in violation of

Conn. Gen. Stat. § 51-51i(a)(2). In this Court he now

claims that the Connecticut Supreme Court "changed the

charge" on him, finding him guilty of a non-wilful violation.

Of course, that is not at all what happened.

Conn. Gen. Stat. § 51-51i(a) provides that "a judge

shall be subject . . . to censure, suspension or removal from

office for... (2) wilful violation of section 51-39a or any

canon of judicial ethics." (emphasis supplied) The Council

found that the petitioner had wilfully engaged in the sexual

relationship with the complainant. /d. Based on this wilful

conduct, the Council determined that he had violated Canons

1 and 2A and § 51-51i(a)(2). /d.

The petitioner argued to the Court below that to find

him guilty of a "wilful violation," it had to find that he knew

that his alleged conduct was forbidden under the Canons and

that he acted with the specific intent to violate said Canons.

The Connecticut Supreme Court rejected this interpretation

as a matter "of statutory construction." /d. at 192. Recog-

nizing that "[w]ilful" is a word "of many meanings, its con-

struction often influenced by its context," the Court held that

in "the context of the subsection of our judicial discipline

statute that codifies the canons of the Code of Judicial Eth-

ics, the term ‘wilful’ cannot reasonably be read to require a

specific intent to violate the canons given the necessarily

broad and flexible nature of those canons." /d., quoting

Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031

(1945).

In fact, to have construed “a wilful violation of any

canon” to require proof that the judge actually intended his

conduct to violate that Canon would render the provision in-

effective. Such proof would rarely, if ever, be available.

The Court would not presume, therefore, that the legislature

intended such an unreasonable interpretation. /d.

Thus, the Court concluded "that a judge is subject to

discipline for a ‘wilful violation of . . . any canon of judicial

ethics’ as long as he or she intends to engage in the conduct

for which he or she is disciplined, whether or not he or she

has the specific intent to violate the canon." /d. at 184.

The Court did not, as the petitioner suggests, announce a

new charge in its decision.

In the Matter of Ruffalo, 390 U.S. 544, 88 S.Ct.

1222 (1968), relied on heavily by the petitioner, does not

hold to the contrary. In Ruffalo, the Ohio Board of

Commissioners on Grievances and Discipline amended its

charges after the adjudicatory hearing had already begun,

It is certainly reasonable to charge all judges with constructive

knowledge of the Code of Judicial Conduct. Jn re Zoarski, 227

Conn. 784, 791-92, 632 A.2d 1114 (1993). "By accepting his

office, a judge undertakes to conduct himself in both his official

and personal behavior in accordance with the highest standard that

society can expect." Cincinnati Bar Ass'n v. Heitzler, 32 Ohio St.

214, 291 N.E.2d 477, 482 (1972). "The judge must expect to be

the subject of constant public scrutiny. The judge must therefore

accept restrictions on his or her conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely and

willingly." Code of Judicial Conduct, Canon 2, Commentary.

10

and not during a preliminary investigation.” In this case, the

Council properly conducted a preliminary investigation to

determine if probable cause existed that the petitioner's con-

duct had violated the Code or Conn. Gen. Stat. § 51-511.

Having found probable cause, the Council properly charged

the petitioner and notified him of the charges, which included

an allegation of a "wilful" violation of the Canons. This

charge and the Council's interpretation of the "wilfulness"

element remained the same throughout all of the proceed-

ings. The Court below merely adopted it.

5/

In Ruffalo, the petitioner was charged with twelve counts of

misconduct. At the formal hearing on the charges, after the

petitioner had testified, the Board amended its charges to add a

new charge based only on the petitioner's and his associate's

testimony. This Court therefore concluded that the petitioner had

insufficient notice of the new charge prior to the formal

proceedings because the Board amended the charge after the

formal hearing had begun, and relied solely on the petitioner's

testimony. Jn the Matter of Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,

1225-27 (1968).

1]

CONCLUSION

For all of the foregoing reasons, the Court should

deny the petition for a writ of certiorari.

Respectfully submitted,

JUDICIAL REVIEW COUNCIL

RICHARD BLUMENTHAL

ATTORNEY GENERAL

*Carolyn K. Querijero

Assistant Attorney General

Counsel of Record

55 Elm Street

P.O. Box 120

Hartford, CT 06141-9120

Tel. No. (860)-566-4990