Dean, In re, 15785

• Decision Date: 11 August 1998
• Docket Number: No. 15785,15785
• Citation: 246 Conn. 183,717 A.2d 176
• Court: Connecticut Supreme Court
• Parties: In re Honorable Harold H. DEAN.

Page 176

717 A.2d 176

246 Conn. 183

In re Honorable Harold H. DEAN.

No. 15785.

Supreme Court of Connecticut.

Argued Feb. 19, 1998.

Decided Aug. 11, 1998.

Wesley W. Horton, with whom were Kimberly A. Knox, Hartford, Paul J. Pacifico, Westport, and, on the brief, Kevin B. Hawkins and Michele C. Camerota, Certified Legal Interns, for appellant (respondent).

Gregory T. D'Auria, Assistant Attorney General, with whom were Eliot D. Prescott, Assistant Attorney General, and, on the brief, Richard Blumenthal, Attorney General, Carolyn K. Querijero, Assistant Attorney General, and Donald B. Caldwell, Rockville, for appellee (Judicial Review Council).

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

KATZ, Associate Justice.

The respondent, Superior Court Judge Harold H. Dean, appeals from the decision of the judicial review council (review council) to censure him publicly for wilfully and intentionally failing to pay a $250 weekly instalment order issued by a Superior Court judge pursuant to General Statutes § 52-356d. The review council is authorized pursuant to General Statutes § 51-51n (a)(1), ¹ to censure a judge of the Superior Court publicly for a "wilful violation of ... any canon of judicial ethics" as set forth in General Statutes § 51-51i(a)(2). ² The review council had initiated an investigation pursuant to General Statutes § 51-51l. ³ Thereafter, a confidential probable cause hearing was held to inquire into whether the respondent had: (1) failed or refused to pay periodic payments ordered by the Superior Court in satisfaction of a judgment; (2) failed or refused to satisfy one or more judgments of the Superior Court; (3) submitted a false financial statement to a lender; or (4) fraudulently transferred assets; and whether such conduct, if proved, violated canon 1, canon 2(a) or canon 5 of the Code of Judicial Conduct (code). ⁴ The review council found probable cause to believe that the respondent, by having wilfully failed or refused to pay periodic payments ordered by the Superior Court in satisfaction of a judgment, had violated canons 1 and 2(a) of the code and § 51-51i. ⁵

After the public hearing held pursuant to § 51-51l (c); see footnote 3 of this opinion; the review council made fifteen findings of fact. "1. The respondent was, at all relevant times, an active judge of the Connecticut Superior Court. 2. On April 28, 1987, the respondent, along with others, signed a promissory note in favor of BankMart, a financial institution. Each signee agreed to pay BankMart $75,000 plus interest upon demand. 3. Subsequent to April 28, 1987, the note was acquired by DAP Financial Management Company [DAP Financial]. 4. In 1994, Attorney Edward Botwick was engaged to attempt collection of the note. 5. Suit was commenced against the respondent by writ dated November 15, 1994, under the title DAP Financial Management Company vs. Harold Dean et al. in Superior Court for the Judicial District of Fairfield, at Bridgeport. 6. A default judgment against the respondent was entered on January 17, 1996, for a total of $129,500 including principal, interest, and attorney's fees. At the time of judgment, an order of payment of $15 per week was entered, effective February 9, 1996. 7. On February 9, 1996, the office of Attorney Botwick received a check from, or on behalf of, the respondent in the amount of $780, representing one year of $15 payments. 8. On August 7, 1996, upon motion of [DAP Financial], the court, after a hearing attended by and contested by the respondent and counsel, increased the amount of weekly payments to $250 per week. ⁶ 9. The last line of the court's memorandum of decision reads, 'The defendant is ordered to pay to the plaintiff the sum of $250 per week until said judgment is paid in full.' 10. The $780 check received on February 9, 1996, paid the $15 per week order through August 2, 1996, and the $250 per week order for August 9, 1996. Further the sum of $140 was applied to the $250 payment due on August 16, 1996. 11. The balance of $110 due on August 16, 1996, was never paid. None of the weekly payments of $250 were made from August 23, 1996, to March 31, 1997. ⁷ 12. The respondent made the $250 per week payments from March 31, 1997, to July 11, 1997, when he filed for bankruptcy. 13. The respondent claims the $250 per week order was terminated when a wage execution was issued on October 23, 1996, and was revived on March 5, 1997, when the wage execution was revoked. 14. The respondent failed, wilfully, to pay periodic payments ordered by the Superior Court from August 16, 1996, to October 23, 1996. ⁸ 15. The conduct examined by the [review council] did not affect his judicial duties or responsibilities."

On the basis of these findings, the review council, by a vote of eleven to one, recommended a public censure of the respondent on the grounds that his "intentional and wilful failure ... to make weekly payments ordered by the Connecticut Superior Court between August 16, 1996, and October 23, 1996, resulted in his failure to observe high standards of conduct so that the integrity of the judiciary might be preserved, and resulted in his failure to act at all times in a manner that promotes public confidence in the judiciary" in violation of canons 1 and 2 of the code. The respondent appealed directly to this court pursuant to General Statutes § 51-51r. ⁹

The respondent raises the issue of whether his refusal to comply with an instalment payment order under § 52-356d provides a basis for judicial discipline. He phrases the issue as follows: "Is a refusal to comply with an instalment order under General Statutes § 52-356d a basis for judicial discipline?" The review council's counterstatement of the issue more accurately reflects its ruling and the question before us: "Did the [review council] properly discipline the respondent judge in the circumstances of this case for wilfully and intentionally failing to pay a weekly instalment order of $250, which a Superior Court judge ordered him to pay and had determined he could afford to pay?"

Before analyzing the respondent's claims on appeal, we first set forth the appropriate standards of review for the factual findings and legal conclusions of the review council, as recently articulated by this court in In re Flanagan, 240 Conn. 157, 690 A.2d 865, cert. denied, --- U.S. ----, 118 S.Ct. 172, 139 L.Ed.2d 114 (1997). "In reviewing the factual determinations of the review council, we must take into account the risk that unfounded charges of judicial misconduct will impair society's interest in an independent judiciary. We must therefore depart from our normal rule of deference to factfinding by trial courts and administrative agencies. We have a nondelegable responsibility, upon an appeal, to undertake a scrupulous and searching examination of the record to ascertain whether there was substantial evidence to support the council's factual findings.... In re Zoarski, 227 Conn. 784, 789-90, 632 A.2d 1114 (1993); Council on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 192, 476 A.2d 1041 (1984).

"As to the review council's ultimate legal conclusion that the facts found support a finding of a violation of one or more of the canons of the [code], we are persuaded that our review should be de novo. Pursuant to the constitution of Connecticut, article fifth, as amended by article eleven of the amendments, all judges within the state may, in such manner as shall by law be prescribed, be removed or suspended by the supreme court. In addition to the authority it bestows upon this court, article fifth, as amended by article eleven of the amendments, also permits the General Assembly to create a judicial review council with the power to censure or to suspend any judge for a period not to exceed one year. The constitutional provisions relating to the disciplinary powers of this court have been codified at General Statutes § 51-51j. ¹⁰ Similarly, the constitutional provisions pertaining to the powers of the review council have been codified at ... § 51-51n. ¹¹ Additionally ... § 51-51r provides that any judge aggrieved by a decision of the review council may appeal that decision directly to this court.... [I]n those instances in which the action deemed appropriate by the review council is a one year suspension or any lesser form of discipline, this court may always review such decisions of the review council under § 51-51r.

"Because we are empowered, by the constitution as well as by § 51-51j, to determine all matters of judicial discipline in the first instance as well as upon appeal of the review council's decisions, we conclude that our review of the review council's legal conclusions is de novo. This approach promotes consistency in the enforcement of judicial discipline and finds support in the decisions of many of our sister Supreme Courts." (Internal quotation marks omitted.) In re Flanagan, supra, 240 Conn. at 165-67, 690 A.2d 865.

We turn next to the merits of the respondent's contention on appeal. It is useful to begin with what he does not claim. The respondent does not argue with the review council's finding that his failure, from August 16, 1996, to October 23, 1996, to make the periodic payments ordered by Judge Doherty was "intentional and wilful." Although he claimed before the review council that he could not afford to make the $250 payments, ¹² he made no payment of any kind during the pertinent time period, and he does not challenge either the evidentiary support for the review council's finding of wilfulness or its lack of a finding that he could not afford to make the $250 payments. We therefore proceed with the premise, which the record supports, that the respondent could afford to make the payments ordered. Nor does the respondent argue that violation of a court order cannot constitute a violation of the code when a judge is acting in a private capacity. See In the Matter of Disciplinary Proceedings...