Zoarski, In re

• Citation: 227 Conn. 784,632 A.2d 1114
• Decision Date: 02 November 1993
• Docket Number: No. 14589,14589
• Court: Supreme Court of Connecticut
• Parties: In re Honorable Howard F. ZOARSKI.

Page 1114

632 A.2d 1114

227 Conn. 784

In re Honorable Howard F. ZOARSKI.

No. 14589.

Supreme Court of Connecticut.

Argued Sept. 21, 1993.

Decided Nov. 2, 1993.

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

Donald B. Caldwell, Vernon, with whom, on the brief, was F. Timothy McNamara, Hartford, for appellee (judicial review council).

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

PETERS, Chief Justice.

This appeal challenges the propriety of the suspension of a judge of the Superior Court for judicial misconduct. Pursuant to General Statutes § 51- 51l, ¹ the judicial review council (council) charged that the respondent, Judge Howard F. Zoarski, had violated General Statutes § 51-51i(a)(1) and (2), ² by engaging in judicial conduct that (1) demonstrated a wilful violation of canons 2 B and 3 C(1)(a) of the Code of Judicial Conduct and (2) was prejudicial to the impartial and effective administration of justice. Although only six members of the council found that the first charge had been established by clear and convincing proof, all nine members of the council who heard the complaint found that the second charge had been so established. On the basis of the second charge, ³ the council suspended Judge Zoarski from exercising his duties as a judge of the Superior Court for a period of fifteen days. Judge Zoarski appealed to this court in accordance with General Statutes § 51-51r. ⁴ After a searching consideration of the merits of his claims, we dismiss Judge Zoarski's appeal.

The council made the following unchallenged findings of fact with respect to the second charge. Before becoming a judge, Judge Zoarski, a resident of Branford, was one of three partners in a partnership known as Ramzey Associates and was counsel for the partnership. The partnership owned land in Branford that abutted the Soffer poultry farm. Stuart Soffer, the complainant in these proceedings, has operated the Soffer family farm since 1977.

In or after 1977, several controversies arose between the partnership and the Soffer family, in part because the partnership sought to develop its property for a subdivision of homes. These disagreements concerned: (1) a claim by Joseph Soffer, Stuart Soffer's father, and Jacob Soffer, Stuart Soffer's uncle, that the Soffer family farm had a right-of-way over the partnership property; (2) a dispute about the compliance of improvements to structures on the Soffer farm with the building and zoning codes; and (3) a complaint by Stuart Soffer about the compliance by the partnership with inland wetlands regulations. In his capacity as counsel to the partnership, Judge Zoarski attended at least two court-ordered inspections of the partnership and the Soffer family farm properties at which members of the Soffer family, including Stuart Soffer, were present and identified as family members. Judge Zoarski, as counsel, also attended an inland wetlands hearing at which Stuart Soffer identified himself by name, and by relationship with other members of the Soffer family, as the person challenging the impact of the partnership's development on wetlands in the area.

On July 30, 1990, the Branford police submitted to Judge Zoarski an arrest warrant that charged Stuart Soffer with littering. The affidavit accompanying the warrant recited that the alleged littering consisted of drippings of chicken manure and feathers from a "Soffer poultry farm truck" onto a public road. The affidavit also described the location of the Soffer poultry farm. The maximum fine for the charge of littering was $250. Judge Zoarski signed the arrest warrant and, sua sponte, added a bond of $1000. ⁵

On the basis of this factual record, the council determined that there was clear and convincing evidence that Judge Zoarski, when he signed the warrant, "knew or should have know[n of] the history of contentious relations and litigation with the Soffers and their poultry farm." He was, therefore, required "to disqualify himself from any participation in the Soffer arrest." Further, "[t]he respondent also knew or should have known that the requirement of the $1000 bond would have required Stuart Soffer to spend some time in the Branford jail pending arrangements for the bond."

The council concluded that Judge Zoarski's failure to disqualify himself had placed his impartiality and judgment into question and that he had thereby subjected himself to a claim of prejudice. The council unanimously held that, in the circumstances of this case, Judge Zoarski's failure to disqualify himself was "conduct prejudicial to the impartial and effective administration of justice which brings the judicial office in disrepute." ⁶ General Statutes § 51-51i(a)(1). Accordingly, the council ordered his suspension for fifteen days.

Judge Zoarski challenges the validity of his suspension on six grounds. He maintains that the council: (1) lacked sufficient evidence to support a finding of judicial misconduct with respect to either of the charges against him; (2) lacked the authority to render a judgment of judicial misconduct without the presentation of expert evidence about the relevant standards; (3) was compelled to dismiss the proceedings against him because Stuart Soffer, in violation of the confidentiality requirement of General Statutes § 51-51l (a), ⁷ had publicly discussed the charges that the council was considering; (4) violated Judge Zoarski's due process rights by adjudicating the charges against him without first having enacted comprehensive regulations as required by General Statutes § 51-51k(i); ⁸ (5) improperly permitted portions of Judge Zoarski's testimony at the probable cause hearing to be received into evidence in the public hearing; and (6) violated Judge Zoarski's due process rights by having the same council members determine probable cause and thereafter adjudicate the complaint against him. We disagree.

I

Judge Zoarski's first contention is that the council did not have clear and convincing evidence to support its finding that he had engaged in judicial misconduct. Although he challenges the sufficiency of the evidence on both of the charges against him, we need only decide the sufficiency of the evidence to sustain the second charge, i.e., that he had engaged in conduct that, in violation of § 51-51i(a)(1), was "prejudicial to the impartial and effective administration of justice [so as to bring] the judicial office in disrepute." ⁹

Well established principles govern this court's review of a decision of the council that a Superior Court judge has engaged in misconduct warranting judicial discipline. "[O]ur review is not de novo. We cannot assess the credibility of witnesses.... Nonetheless, 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." (Citations omitted.) Council on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 192, 476 A.2d 1041 (1984).

Judge Zoarski attacks the findings of the council on the grounds that: (1) although he had been involved in litigation with Joseph Soffer and Jacob Soffer, Stuart Soffer had been neither a party to, nor a witness in, that litigation; (2) the three occasions on which Judge Zoarski had encountered Stuart Soffer had occurred more than eleven years prior to the signing of the arrest warrant; and (3) Judge Zoarski derived no personal or pecuniary gain from signing the arrest warrant. Judge Zoarski maintains that, if due consideration had been given to these additional facts, all of which were uncontested, the council could not reasonably have found, by clear and convincing evidence, that he had engaged in judicial misconduct. We disagree.

On the basis of the evidence before it, the council could reasonably have found that Judge Zoarski, during his prior encounters with members of the Soffer family, had ample occasion to learn that Stuart Soffer was the son and nephew of the members of the Soffer family with whom he had been in litigation. Judge Zoarski acknowledged, at the probable cause hearing held pursuant to § 51-51l, ¹⁰ that his examination of the warrant affidavit had disclosed a connection with the Soffer farm and that he had focused on the Soffer name sufficiently to determine that neither Joseph nor Jacob Soffer was directly involved. The council could also reasonably have concluded that Judge Zoarski should have recognized the name of the person on the arrest warrant as a close relative of Joseph and Jacob Soffer. Furthermore, Judge Zoarski does not claim that it would have been proper for him to have signed the arrest warrant if he had wilfully ignored actual knowledge about his prior adversarial encounters with Stuart Soffer.

Because Judge Zoarski should have known that he was dealing with an immediate member of the Soffer family in circumstances in which his impartiality could reasonably have been called into question, the council could reasonably have concluded that he had engaged in judicial conduct that was "prejudicial to the impartial and effective administration of justice [so as to bring] the judicial office in disrepute." In contrast to § 51-51i(a)(2), prejudicial judicial conduct under § 51-51i(a)(1) does not require proof of a wilful violation of the canons of judicial ethics. "Scienter is not essential for the occurrence of an ethical violation. Judges ... are chargeable for deviations from the [statutes] governing their conduct, even though the application of the [statutes] to particular circumstances may not be readily apparent." Patterson v. Council...