Abington Ltd. Partnership v. Heublein

• Decision Date: 08 September 1998
• Docket Number: No. 15639,15639
• Citation: 246 Conn. 815,717 A.2d 1232
• Parties: ABINGTON LIMITED PARTNERSHIP v. Bruce G. HEUBLEIN et al.
• Court: Connecticut Supreme Court

Page 1232

717 A.2d 1232

246 Conn. 815

ABINGTON LIMITED PARTNERSHIP v. Bruce G. HEUBLEIN et al.

No. 15639.

Supreme Court of Connecticut.

Argued Dec. 9, 1997.

Decided Sept. 8, 1998.

Jeffrey J. Mirman, Farmington, with whom were Wesley W. Horton, Hartford and, on the brief, Lisa A. Zaccardelli, Farmington, for appellant (plaintiff).

Everett E. Newton, Hartford, with whom were Sean P. Clark, Wethersfield, Linda L. Morkan, Dennis F. Kerrigan, Jr., Hartford, David A. Baram, Bloomfield and Brian J. Comerford, Assistant Attorney General, and, on the brief, Richard Blumenthal, Attorney General, and Barry J. Waters, New Haven, for appellees (defendant Talcott Mountain Science Center for Student Involvement, Inc., et al.).

Brendan T. Flynn, with whom, on the brief, were Donald Gaudreau and Jonathan M. Starble, Hartford, for appellee (defendant Katherine Vidal Smith).

Before BERDON, KATZ, PALMER, McDONALD and PETERS, JJ.

PETERS, Associate Justice.

The underlying issue in this case is whether, as a result of the creation of an easement appurtenant granting a right of access over the property of the servient estate, the servient estate also must afford access to adjacent property that was acquired thereafter. In this appeal, however, the first and dispositive issue is whether the trial court judge properly denied a motion for his disqualification in light of the judge's ex parte visit to the property that was the subject of the dispute. Because we conclude that disqualification was required under the circumstances of this case, we reverse the judgment of the trial court and remand the case for a new trial.

The plaintiff, Abington Limited Partnership, the fee owner of a private roadway called Montevideo Road, ¹ brought a six count action to quiet title and to remedy an alleged overburdening of an easement of access over its roadway. ² The defendant Talcott Mountain Science Center for Student Involvement, Inc. (Science Center), ³ acknowledged the use of Montevideo Road but claimed, for various reasons, that the use was rightful. After a court trial, the court, Satter, J., agreed with the defendants on their principal claims and denied the plaintiff's prayer for injunctive relief. The plaintiff's appeal to the Appellate Court was transferred to this court pursuant to Practice Book § 65-1, formerly § 4023, and General Statutes § 51-199(c). ⁴

I

The dispositive legal issue in this case is whether the trial judge improperly denied a motion for his disqualification based upon his ex parte visit to the site of the property directly involved in the litigation before him. Although the judge acknowledged that the visit had been imprudent, he declined to recuse himself. ⁵ We must decide whether, in the circumstances of this case, the trial judge's imprudence created an appearance of impropriety that required his recusal. We conclude that it did.

At trial, the plaintiff raised two claims in support of its motion for disqualification. The first was that the judge's visit had violated Canon 3(a)(4) of the Code of Judicial Conduct ⁶ because the judge, in effect, had conducted an improper ex parte investigation of facts disputed at trial. The second was that the judge's visit had violated Canon 3(c)(1) of the Code of Judicial Conduct ⁷ because, whatever its actual import might have been, it created an appearance of judicial impropriety. We disagree with the first of these claims, but agree with the second.

A

Although the plaintiff claims that the judge's visit constituted an improper independent investigation of the facts of the case in violation of Canon 3(a)(4), the plaintiff made no attempt, at trial or on appeal to this court, to demonstrate that the judge's independent observations differed from those gleaned from prior visits with counsel present. Nothing in the record demonstrates that the judge drew on independent knowledge in deciding this case. If the information he gleaned could have had any influence, it would have redounded in favor of the plaintiff. ⁸ The plaintiff has not taken issue with the fairness of any of the judge's evidentiary rulings at trial. It would be surprising if it were otherwise, because the judge has had a long and widely admired career as a conscientious and fair minded judge of the Superior Court and as a judge trial referee. We conclude that the judge did not violate Canon 3(a)(4).

B

The plaintiff also claims that the judge's ex parte visit, regardless of its propriety under Canon 3(a)(4), violated the judge's duty, under Canon 3(c)(1), to avoid an appearance of impropriety. In analyzing this ground for disqualification, we emphasize the fundamental distinction between a claim of bias and a claim of an appearance of impropriety. Canon 3(c)(1) provides in relevant part: "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 ... personal knowledge of disputed evidentiary facts concerning the proceeding...." To prevail on its claim of a violation of this canon, the plaintiff need not show actual bias. The plaintiff has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety. ⁹

We use an objective rather than a subjective standard in deciding whether there has been a violation of Canon 3(c)(1). "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 his ... impartiality, on the basis of all of the circumstances...." (Citations omitted; internal quotation marks omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Dubaldo v. Dubaldo, 14 Conn.App. 645, 649, 542 A.2d 750 (1988).

The relevant facts and procedural history are undisputed. On May 12, 1996, the trial court judge and his wife drove from Route 44 to Montevideo Road, using that private road to reach the entrance to the Science Center to look at the view. The Science Center is one of the defendants in this case, and the propriety and extent of its use of Montevideo Road to gain access to Route 44 are crucial issues in the litigation. At the time of the judge's visit to the site, he already had begun to preside over the court trial of this case, which had commenced on March 28, 1996. In the presence of all the parties, the judge already had inspected the area twice. The judge did not notify counsel of his ex parte visit to the area.

When the judge arrived in the area, he observed a "For Sale" sign on a house across the way from the Science Center. At that time, the house was owned by James W. Tilney. Although neither the judge nor his wife had any intention of buying Tilney's house, they knocked on Tilney's door and indicated to him that they might be interested in such a purchase. Tilney showed them through his house and showed them the view. Without revealing his identity, the judge initiated a discussion with Tilney about the "legal issue" involving the Science Center. Tilney responded that, in his view, the Science Center had given the plaintiff the runaround. Only when the judge and his wife were leaving did the judge inform Tilney that he was the trial judge adjudicating this very legal issue. ¹⁰

The issue of impropriety came to light during the trial, when, on May 19, 1996, Tilney disclosed to the plaintiff the substance of his ex parte conversation with the judge. The plaintiff moved the trial court judge to disqualify himself and to declare a mistrial. The judge indicated his disinclination to do so, but allowed the plaintiff to present the Tilney testimony and, thereafter, granted the plaintiff's motion to have another judge of the Superior Court conduct an evidentiary hearing to determine the facts.

Pursuant to the procedural standards laid down in Szypula v. Szypula, 2 Conn.App. 650, 654-55, 482 A.2d 85 (1984), Judge Maloney undertook the necessary review. ¹¹ No new evidence was presented to him. ¹² He listened to the tapes of the trial court proceedings and considered the arguments of counsel. On that record, Judge Maloney determined that, because there was no dispute about the facts relevant to the trial court judge's obligation to recuse himself, there was no basis for conducting an evidentiary hearing. Judge Maloney declined to rule on the ultimate issue of disqualification, which, in his view, was an issue for the trial court judge himself to decide.

In response to the plaintiff's motion for disqualification and mistrial, the trial judge candidly acknowledged, on the record, that "under the circumstances probably I shouldn't have gone up there...." Nonetheless, after having heard Tilney's testimony and having received Judge Maloney's decision, the judge denied the plaintiff's motion and, upon the conclusion of the trial, rendered judgment in favor of the defendants.

In evaluating whether, from an objective standpoint, these facts demonstrate a violation of Canon 3(c)(1), we start from two well established propositions concerning the appearance of judicial impropriety. Although stated separately, each proposition reenforces the other.

The first proposition is that the prevention of the appearance of impropriety is of vital importance to the judiciary and to the judicial process. Bonelli v. Bonelli, 214 Conn. 14, 19, 570 A.2d 189 (1990). "Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be...