Flanagan, In re

• Decision Date: 18 March 1997
• Docket Number: No. 15419,15419
• Citation: 690 A.2d 865,240 Conn. 157
• Court: Connecticut Supreme Court
• Parties: In re Robert C. FLANAGAN.

Page 865

690 A.2d 865

240 Conn. 157

In re Robert C. FLANAGAN.

No. 15419.

Supreme Court of Connecticut.

Argued Dec. 11, 1996.

Decided March 18, 1997.

Roger J. Frechette, New Haven, with whom was Matthew E. Frechette, for appellant (respondent).

Gregory T. D'Auria, Assistant Attorney General, with whom were Susan Quinn Cobb, Assistant Attorney General, and, on the brief, Richard Blumenthal, Attorney General, and Carolyn K. Querijero, Assistant Attorney General, for appellee (judicial review council).

Before CALLAHAN, C.J., and BORDEN, KATZ, PALMER and McDONALD, JJ.

CALLAHAN, Chief Justice.

Former Superior Court Judge Robert C. Flanagan appeals from the decision of the judicial review council (review council) to censure him publicly for engaging in a consensual sexual relationship with a married court reporter who regularly had been assigned to his courtroom over the course of their relationship. ¹ Pursuant to General Statutes § 51-51n (a) (1), ² the review council is authorized 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). ³ The review council concluded, after a public hearing, that Flanagan's conduct had violated canons 1 and 2A of the canons of the Code of Judicial Conduct. ⁴

The review council's investigation into Flanagan's conduct pursuant to General Statutes § 51-51l (a) ⁵ was precipitated by a written complaint filed by Penny Ross, a court reporter. In her written complaint, Ross alleged that "[t]here was sex between [herself] and Judge Flanagan on countless occasions over the past four years." The bulk of Ross' written complaint alleged a course of conduct by Flanagan that she claimed had caused her repeatedly to engage in coerced sexual relations with him during their relationship.

After the probable cause proceedings at which Ross, Flanagan and several other witnesses testified, the review council charged Flanagan with having violated canons 1 and 2A of the Code of Judicial Conduct and § 51-51i(a)(2) by "engag[ing] in a consensual sexual relationship with a married court employee...." ⁶ Emphasis added.) The review council did not find probable cause to believe that Ross' relationship with Flanagan had been coerced in any way. Implicit in the review council's decision to charge Flanagan for ethical violations based solely on a consensual sexual relationship with a married court employee was the council's rejection of the substance of Ross' written complaint and her testimony at the probable cause hearing concerning coercion. The review council's rejection of Ross' coercion charges finds overwhelming support in the record in that Ross' written complaint and oral testimony were inconsistent and not credible. On cross-examination at the probable cause hearing, Ross admitted to several incidents that would indicate that her relationship with Flanagan had been consensual. Moreover, every other witness at the probable cause hearing testified to facts that left little doubt that the relationship had been consensual. Furthermore, none of the witnesses testified to a belief that Flanagan had coerced Ross to engage in a sexual relationship with him at any time. Finally, Flanagan himself admitted that he had had a sexual relationship with Ross for almost four years but testified that it had been entirely consensual.

After a public hearing conducted pursuant to General Statutes § 51-51l (c), at which only Ross, Moira Butler and Shepard Sherwood ⁷ testified, the review council made ten findings of fact. Those findings were as follows: "(1) [Flanagan] was, at all relevant times, an active judge of the Connecticut Superior Court. (2) [Ross], at all relevant times, was a court reporter employed by the State Judicial Branch. (3) [Ross], at all relevant times, was a married woman. (4) [Flanagan] engaged in a consensual sexual relationship with [Ross] from March 1992, to October 1995. (5) For substantial periods of time during this relationship, [Ross] was consistently assigned as a court reporter to the courtroom in G.A. 6, New Haven, over which [Flanagan] presided. (6) On many occasions [Ross] was present in the chambers of [Flanagan] before the opening of court, during pretrial conferences with counsel present, and during recesses. (7) From early January 1995 to the fall of 1995, [Ross] also had a sexual relationship with Attorney Shepard Sherwood. (8) Attorney Sherwood was, at all relevant times, an assistant public defender at G.A. 6, New Haven, and weekly, and sometimes more often, appeared before [Flanagan] for pretrials in his chambers and other matters in court in the presence of [Ross] as the assigned court reporter. (9) The expert opinion evidence offered by [Flanagan] was not persuasive. (10) [Flanagan] willfully engaged in the conduct alleged." On the basis of those findings, the review council, by a nine to three vote, recommended a public censure of Flanagan on the grounds that, by engaging in a long-term consensual sexual relationship with his court reporter, he had violated canons 1 and 2A of the Code of Judicial Conduct. This appeal followed.

Flanagan claims that the review council improperly: (1) charged him with consensual sexual misconduct on the basis of evidence adduced at the probable cause hearing even though Ross' written complaint had been limited to forced or coerced sexual misconduct; (2) concluded that he had violated canons 1 and 2A without any expert testimony to support that conclusion; (3) concluded that he had engaged in a "wilful" violation of canons 1 and 2A in the absence of evidence that he had the specific intent to violate those canons; (4) failed to dismiss the proceedings against him in light of Ross' violation of the confidentiality provision of § 51- 51l (a); (5) considered evidence beyond the scope of the charges against him at the formal hearing; and (6) concluded, as a matter of law, that a consensual sexual relationship with his married court reporter constituted a violation of canons 1 and 2A.

Before analyzing Flanagan's procedural and substantive claims on appeal, however, we need first to set out the appropriate standards of review for the factual findings and legal conclusions of the review council. In reviewing the factual determinations of the review council, "our review 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." (Internal quotation marks omitted.) 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 of Judicial Conduct, 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. ⁸ Similarly, the constitutional provisions pertaining to the powers of the review council have been codified at General Statutes § 51-51n. ⁹ Additionally, General Statutes § 51-51r ¹⁰ provides that any judge aggrieved by a decision of the review council may appeal that decision directly to this court. Together, the statutory and constitutional provisions make clear that this court may institute disciplinary proceedings against any judge and, after a hearing, remove or suspend any judge found guilty of a disciplinary violation. Although the review council is also empowered to review matters of judicial discipline, it may never order discipline more severe than a one year suspension. In those cases in which the review council believes that a sanction more severe than a one year suspension is appropriate, it only may recommend a disposition of the matter to this court, which has sole authority to suspend a judge for a period greater than one year or to remove a judge from office. ¹¹ Moreover, even in 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. See In re Inquiry Concerning a Judge, 788 P.2d 716, 722 (Alaska 1990) (Supreme Court is "entrusted with the ultimate decision in matters of judicial qualifications" and will "independently evaluate the evidence of record"); In the Matter of McClain, 662 N.E.2d 935, 937 (Ind.1996) (de novo review of facts and law); In re Jenkins, 437 Mich. 15, 18, 22, 465 N.W.2d 317 (1991) (de novo review of law and facts, with...