Council on Probate Judicial Conduct re Kinsella

• Decision Date: 15 May 1984
• Citation: 476 A.2d 1041,193 Conn. 180
• Court: Connecticut Supreme Court
• Parties: COUNCIL ON PROBATE JUDICIAL CONDUCT re James H. KINSELLA.

Page 1041

476 A.2d 1041

193 Conn. 180

COUNCIL ON PROBATE JUDICIAL CONDUCT re James H. KINSELLA.

Supreme Court of Connecticut.

Argued Feb. 29, 1984.

Decided May 15, 1984.

Edward F. Hennessey, Hartford, with whom, on the brief, were David T. Ryan, Sally S. King, Hartford, and Kathleen C. Stone, New Haven, for appellant (James H. Kinsella).

Roger J. Frechette, New Haven, for appellee (Council on Probate Judicial Conduct).

Before SPEZIALE, C.J., and PETERS, GRILLO, COVELLO and F. HENNESSY, JJ.

PETERS, Associate Justice.

This case is an appeal from the recommendation of the Council on Probate Judicial Conduct (council) publicly to censure the Honorable James H. Kinsella, the elected Judge of Probate for the District of Hartford. Proceedings before the council were initiated by a complaint from Probate Judge Ralph D. Lukens to Probate Judge Glenn E. Knierim, the probate court administrator, relating to Judge Kinsella's management of the estate of Ethel Frances Donaghue, incapable (hereinafter the estate). In response to Judge Knierim's referral of Judge Lukens' complaint, the council undertook an investigation pursuant to General Statutes § 45-11e, ¹ and then notified Judge Kinsella that it would, in accordance with General Statutes § 45-11f, ² conduct a hearing to determine whether his management of the estate had violated designated canons of the Code of Probate Judicial Conduct. A hearing was held at which Judge Kinsella, represented by his attorney, participated. The council subsequently recommended that Judge Kinsella, because of his violation of the canons of ethics, should be publicly censured in accordance with General Statutes § 45-11g(a). ³ Judge Kinsella thereupon took a timely appeal to this court as authorized by General Statutes § 45-11g(c). ⁴

Much of the underlying history of this case is essentially undisputed. The estate in question is that of Ethel Frances Donaghue, who was, in 1978, an elderly woman who owned a very large amount of property. Herself an attorney, she was accustomed to managing her own life and to designating her own caretakers. She had, for a number of years, relied upon the domestic services of Mr. and Mrs. Salvatore Lucca. She had selected Attorney William W. Graulty to supervise her financial affairs and to draft her estate plans. Although she had broken her elbow in the spring of 1978, she was then legally competent.

In the fall of 1978, Judge Kinsella called Graulty to inquire about Donaghue's well-being. At a conference held on September 14, 1978, Graulty assured Judge Kinsella about Donaghue's competence to manage her affairs. At Judge Kinsella's request, Graulty submitted to Judge Kinsella a letter from Donaghue's private physician attesting to her satisfactory health. In December of that year, Donaghue's health deteriorated and Graulty then advised Judge Kinsella that a conservatorship might be needed.

In early January, 1979, Judge Kinsella appointed Attorney Alexander A. Goldfarb, a friend of long standing, to act as guardian ad litem to inquire into the desirability of a conservatorship. On January 15, the estate of Ethel F. Donaghue, incapable, was opened in the Hartford Probate Court by Judge Kinsella. Graulty and Goldfarb were designated to be co-conservators of the estate and of the person. Attorney Paul J. Aparo, a former law clerk in the Hartford Probate Court, was appointed as the new guardian ad litem. Thereafter Graulty and Goldfarb undertook to report to the court about the assets of the estate.

Without prior notice that his conduct of the estate was being questioned, Graulty was informed at a conference with Judge Kinsella on May 4, 1979, that the court had received an application from Aparo that Graulty be removed as co-conservator of the estate. Aparo alleged that Mr. and Mrs. Lucca were mismanaging the Donaghue household and that Graulty had sanctioned their misconduct. Despite Graulty's denial of these allegations, Judge Kinsella ordered that Mr. and Mrs. Lucca be discharged immediately and that the locks on the Donaghue premises be changed on that very day. The May 4 conference was attended by Graulty, Aparo and Judge Kinsella; Goldfarb did not attend.

Judge Kinsella held a hearing on May 18, 1979, to act on the application for Graulty's removal as co-conservator of the estate. Prior to the date of the hearing, Graulty had filed an application seeking the removal of Goldfarb and Aparo. At the hearing, Aparo was permitted to amend his application to request Graulty's removal not only as co-conservator of the estate but also as co-conservator of the person. Judge Kinsella refused, however, to consider a motion for his own disqualification presented at the hearing by counsel for Graulty, and took no action on Graulty's earlier-filed motion for the removal of Goldfarb and Aparo. Goldfarb did not attend the May 18 hearing, although he had received notice of Aparo's application and of the hearing itself.

The evidence presented at the hearing was not sufficient to make out a prima facie case that Graulty should be removed. Nonetheless, after a conference of Judge Kinsella with all of those present and their attorneys, Graulty determined on May 21, 1979, that he would resign as co-conservator of the person, although he remained as co-conservator of the estate.

After these events, Judge Kinsella continued, until March, 1981, to play an active role in the Donaghue estate. He himself hired Professor Lester Snyder, then at the University of Connecticut School of Law, to review the estate plan that Graulty had drafted for Donaghue. He met privately with Donaghue in his chambers. After a contested hearing concerning the disposition of certain documents, at which the papers were publicly ordered to be returned to Donaghue, he then, without further hearing, privately ordered their delivery to Goldfarb.

On March 9, 1981, after increasing public criticism of the management of the Donaghue estate, Judge Kinsella requested his removal as a judge in the estate. The Honorable Ralph D. Lukens was appointed in his stead and, at Judge Kinsella's official request, held hearings concerning the estate in accordance with General Statutes § 45-262. ⁵ Judge Lukens, after receiving extensive testimony, filed a memorandum of decision on September 24, 1981, in which he removed Graulty and Goldfarb from further responsibility for the estate. Aparo subsequently resigned. A few days later, on October 5, 1981, Judge Lukens filed with the Honorable Glenn E. Knierim, the probate court administrator, a complaint critical of the actions of Judge Kinsella. Thereupon, Judge Knierim transmitted the Lukens complaint to the Council on Probate Judicial Conduct, which issued its own complaint against Judge Kinsella in the proceedings currently before us.

In the proceedings before the council, the council took judicial notice of the Lukens file. It was furthermore agreed that the entire file of the estate was to be an exhibit. The council heard testimony from various witnesses, including Judge Kinsella, who was represented by counsel throughout the proceedings.

The Council on Probate Judicial Conduct was critical of Judge Kinsella's role in regard to many of these events. It is useful to relate these criticisms, as did the council, to various time periods: (1) the period before the establishment of the estate in the fall of 1978; (2) the period when the estate was first managed under the aegis of the Hartford Probate Court, in the early part of 1979; and (3) the period of controversy surrounding Graulty's conservatorship in May, 1979. In addition, the council criticized ex parte actions by Judge Kinsella throughout his superintendance of the Donaghue estate.

The council concluded that Judge Kinsella had wrongfully intervened in the affairs of Donaghue in the fall of 1978. The council determined that there was, in the early fall, no need for judicial intervention, and that Judge Kinsella had misrepresented to Graulty, in December, 1978, that Graulty would be appointed as sole conservator, when the need for a conservatorship arose. This conduct, according to the council, violated Canon 1 of the Code of Probate Judicial Conduct. ⁶

The council concluded the Judge Kinsella had acted wrongfully in the appointments of Goldfarb and Aparo when the estate of Ethel Donaghue, incapable, was opened in the Probate Court on January 15, 1979. The council found that these appointments were motivated by favoritism and not by merit, and that they represented the exercise of bias and prejudice against Graulty. This conduct, according to the council, violated Canons 2, 2.1, 2.2, 3.1.01, 3.2.04 and 3.3.01.a. ⁷

The council concluded that Judge Kinsella had acted wrongfully in his response to Aparo's May, 1979 application for the removal of Graulty from the estate. The council found that Judge Kinsella should have disqualified himself, as he had otherwise regularly done in contested matters involving Goldfarb. Furthermore, in the meeting of May 4, 1979, Judge Kinsella's conduct was criticized for failing to give Graulty adequate notice of the misdeeds of which Graulty was accused, for threatening Graulty, and for discharging the Luccas in disregard of the interests of Donaghue. The subsequent hearing, on May 18, 1979, was found to have been conducted in an impatient, undignified and discourteous manner which exhibited a lack of integrity and impartiality. These various acts of misconduct, according to the council, violated Canons 1, 2.1, 2.2, 3.1.01, 3.1.03, 3.1.04, 3.3.01.a, 3.3.01.d, and 3.1.05. ⁸ The council concluded that Judge Kinsella had acted wrongfully throughout the time that the estate was under his supervision, by engaging in ex parte communications concerning the estate. These communications, the council found, included conversations with his ward and with other persons including Goldfarb, Aparo and Snyder. These ex parte communications, the council found, influenced Judge...