Gertrude Brown v. Mark Brown (2011)

MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY TRIAL JUDGE

The defendant in this dissolution of marriage action, Mark Brown, has asked that the trial judge, Hon. Bernadette Conway, be disqualified, based on the fact that she has been made aware of the contents of an arrest warrant affidavit outlining certain statements which he allegedly made on April 18 and 19 of this year that could be reasonably interpreted as threats to Judge Conway.   The defendant was in fact arrested pursuant to that warrant and has been released on bond.   On April 26, 2011, the date scheduled for a continuation of the parties' dissolution trial, Judge Conway brought to the parties' attention the fact that she had been advised of the defendant's statements and that she had read the arrest warrant.   The defendant orally moved for her recusal.   After hearing the parties' initial arguments, Judge Conway filed a written Memorandum of Decision, dated April 26, 2011, in which she concluded that despite these allegations, she would be able to continue with the trial and render an impartial decision.

That Memorandum of Decision noted that as of the time of her hearing the motion for disqualification, neither a written motion nor affidavit had been filed in accordance with Practice Book § 1–23.   The defendant has since filed such a motion, nunc pro tunc, in which he alleges that because Judge Conway has viewed the contents of the arrest warrant, which include the allegedly threatening comments toward her, she cannot possibly continue as the trial judge in this case because her “impartially might reasonably be questioned.”  Code of Judicial Conduct, § 2–11.   Although the initial non-compliance with Practice Book § 1–23 renders the motion for recusal 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), the parties have agreed to the nunc pro tunc filing in order to complete the record and to avoid having to go through this process all over again with a new filing.

Judge Conway opined that she was confident that she could “put aside the allegations contained in the April 20, 2011 arrest warrant and render a fair, just, impartial, and unbiased decision.”   Recognizing that her subjective opinion was not the end of the inquiry, she referred the matter to the undersigned as Presiding Civil Judge ¹ for assignment to a judge for hearing.   All other civil judges having been engaged in trials at the time, the undersigned assigned the hearing to himself.

The warrant in question, which was made a full exhibit for purposes of this proceeding, recites that over the course of about a month, a man identifying himself as Mark Brown made several agitated telephone calls to one Remy Edwards, a staff member at the Judicial Review Council, inquiring about the status of his earlier filed grievance complaint against Judge Conway, and that on April 18, 2011, his comments turned more ominous, claiming that he would “blow someone's head off.”   In an interview with police the following day, Brown tried to explain his extreme frustration with the way his case was going and his belief that he was being treated unfairly by Judge Conway.   He stated that while he had probably said some things he should not have, he in fact had no intention of harming Judge Conway.   He did, however, make some comments about wood chippers and about having mentioned using a “shotgun” to Edwards, whereas what he had meant to say was “machine gun.”   Edwards herself did not recall any references to shotguns or wood chippers, but only specifically recalled the reference to “blowing someone's head off.”

With

Another relevant fact is that Judge Conway, in reaching her own subjective conclusion that she was able to continue as the trial judge in this case, had first read the arrest warrant affidavit and had familiarized herself with all of the statements attributed to the defendant, and that she was concerned enough about them and their impact on the conduct of the trial to raise the issue with counsel prior to the start of what would have been a continuation of the trial of this case on April 26, 2011.   In short, an objective, disinterested observer would be aware of the claim that the defendant had made remarks that could reasonably be construed as threatening to Judge Conway, and that Judge Conway was fully aware of those remarks.

If those were the only relevant facts, the objective, disinterested observer might well have some doubt about Judge Conway's ability to remain impartial.   The assumption behind the phrase, “when fully informed of the relevant facts,” however, suggests that in this situation, those facts are not to be confined to the statements contained within the warrant and Judge Conway's subjective reaction to them.   Certainly among the relevant facts is the context in which these events took place, including the fact that this dissolution proceeding, which began in 2007, has already consumed five days of trial before Judge Conway and has over 200 pleadings on file.   It is one of the oldest pending dissolution actions in this courthouse.   Also relevant is that the defendant has been trying for some time to have Judge Conway disqualified.   He had earlier made two or three oral requests for disqualification which Judge Conway denied from the bench.   The defendant then filed his grievance complaint against Judge Conway with the Judicial Review Council in early April of 2011 and sought again to have her disqualified on the basis of the pending grievance.   Judge Conway referred that recusal motion to the Presiding Family Judge, Hon. Holly Abery–Wetstone, who heard the motion and denied it.   The record also reveals that the defendant, who began the case as self-represented, is now on his third attorney and has already been the subject of more than a score of contempt motions in this case, two of which have resulted in his incarceration.   There is, in short, ample evidence, of which an objective and disinterested observer would need to be aware, to the effect that the defendant, dissatisfied with the course of his case on many fronts, has systematically tried to derail it by having his judge disqualified.

To be fully informed about the significance of these relevant facts, the objective and disinterested observer would also need to understand some of the realities of family law practice, including the fact that litigants in dissolution actions are frequently at a low ebb ․ perhaps the lowest ebb ․ in their lives.   They are often under enormous personal, financial and emotional pressures, and, as a result, they will on occasion say and do things that they would not say or do under better circumstances.   To put it charitably, judges assigned to family matters know that they often see litigants when they are not on their best behavior.   Family judges understand this phenomenon and, while striving to maintain decorum and an orderly flow of proceedings, they recognize that emotions will often run high.   This is not to say, of course, that threatening behavior toward judges, whether direct or indirect, is of no consequence, but only that among the relevant facts that the objective and disinterested observer must take into account are that family judges know that their rulings will inevitably disappoint at least one party, sometimes bitterly, and indeed will often disappoint both parties.   Thus, more frequently than judges assigned to any other division of the Superior Court, they are likely to be the subjects of grievances filed with the Judicial Review Council by disgruntled litigants who feel that the presiding judge is responsible for much of what has gone wrong with their cases, their marriages and their lives.   In that context, the objective and disinterested observer would note that Judge Conway is an experienced family court judge, and he or she would understand the context of, and therefore be inclined to give some credence to, such a judge's personal and subjective determination that despite what she learned by reading the arrest warrant affidavit, she would be able to put those allegations aside and render a fair and just decision in the pending dissolution action.

Another relevant fact of which the objective and disinterested observer might become aware is that litigants will occasionally deliberately try to provoke the disqualification of trial judges if they perceive or believe that the trial is going poorly for them, but that judges have an obligation to the other litigants and to the system as a whole to resist being bullied out of their decision-making authority.   In the context of this case, in which the defendant has made it abundantly clear that he is not pleased with the way the case has been going and is particularly displeased with the trial judge, that observer might well conclude that a motivation for the behavior reflected in the arrest warrant ․ the mere filing of the grievance with the Judicial Review Council having already proved insufficient to provoke Judge Conway's disqualification ․ was at least in part an effort to raise the stakes and put further pressure on the judge to recuse herself.

Whether or not that assumption is true in this case, however, the issue for our objective and disinterested observer is not what he or she perceives to be the defendant's motives, but whether he or she entertains a significant doubt about Judge Conway's ability to remain impartial, no matter what those motives may have been.   On this score, an additional relevant fact of which the objective and disinterested observer would need to be aware is that judges trained to ignore such extraneous issues and to base their decisions solely on the facts that are proved on the basis of evidence admissible in court.   Indeed they must be able to do so, or it would be far too easy for unhappy litigants to abort their trials simply by provoking the judge into a recusal and mistrial.   This court has no doubt that an objective and disinterested observer would understand this, and the defendant has presented nothing to lead this court to conclude that his possible motives in conversing as he is alleged to have done with Ms. Edwards would lead an objective and disinterested observer to harbor a significant doubt about Judge Conway's impartiality on that basis.

The objective and disinterested observer might also initially be concerned that Judge Conway, in an effort to demonstrate that the defendant's conduct has not affected her impartiality, could be tempted to “bend over backwards” and rule in favor of the defendant on issues when she otherwise might not.   Neither party has suggested such a likelihood, however, and the plaintiff has specifically objected to the defendant's effort to have Judge Conway disqualified.   Thus, the court concludes that the objective and disinterested observer would not, on this basis, entertain a substantial doubt as to Judge Conway's impartiality.

A number of courts in other states have considered the question of whether threats to a judge mandate recusal.   While the nature, credibility and immediacy of the threat, as well as other matters, are all considerations, the clear weight of authority is to the effect that that the mere communication of a litigant's threat to a judge is not, in and of itself, grounds for disqualification.   See, Flamm, R., Judicial Disqualification, 2d. ed.  (2007) Sec. 21–10, p. 641–44 and cases cited therein.  “Therefore, should the threatened judge conclude that delay, harassment, or judicial disqualification is at least one of the defendant's primary motivations, the judge may properly deny the motion.”  Id. at 641, 642.   There is no evidence that that Judge Conway has taken this alleged threat particularly seriously, nor is the allegedly threatening behavior here so vicious that as a reviewing court, the undersigned would be compelled to conclude that Judge Conway must have been affected by it in a way that might affect her impartiality.

While the statements attributed to the defendant remain disturbing, their legal significance will eventually be determined in the pending criminal proceeding.   For purposes of the pending dissolution action, however, the undersigned is persuaded that an objective and disinterested observer, fully informed of the relevant facts as outlined above, would conclude that he or she had no significant doubt about Judge Conway's ability to decide this case impartially.   The motion for disqualification is therefore denied.

Jonathan E. Silbert, Judge

FOOTNOTES

FN1. The case was presumably referred to the civil division in contemplation of the fact that there are only three judges and one Judge Trial Referee assigned to family matters in New Haven, such that the pool of family judges available to try this matter could be reduced to only two if another family judge were to hear this motion and, by virtue of having done so might also be subject to a motion for disqualification..  FN1. The case was presumably referred to the civil division in contemplation of the fact that there are only three judges and one Judge Trial Referee assigned to family matters in New Haven, such that the pool of family judges available to try this matter could be reduced to only two if another family judge were to hear this motion and, by virtue of having done so might also be subject to a motion for disqualification.

Silbert, Jonathan E., J.