Attorney General: Richard A. Silver, Judicial Selection Commission, 1994-021 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

August 12, 1994

Richard A. Silver
Chairman
Judicial Selection Commission
165 Capitol Avenue
Room 241
Hartford, CT 06106

Dear Mr. Silver:

In your letter of May 12, 1994, you ask about the applicability of Conn. Gen. Stat.  51-44a(j) (non-disclosure of information)1 to evidence introduced at a "hearing" conducted by the Judicial Selection Commission (JSC) as required by  51-44a(e) (procedure for reappointment of judge to same court). We conclude that the confidentiality provisions of  51-44a(j) do not limit your evidentiary options at this hearing. We answer each posed question in detail below.

1. Your first question is as follows:

Are statements made in the course of an interview by a candidate for judicial office or by a judge seeking appointment to the same court or reappointment to a different court admissible at a subsequent hearing concerning the reappointment of such a person as a judge? Is the answer to this question the same whether or not the judge requests the hearing to be open to the public? If such statements are admissible, by what means may they be placed in evidence (for example, is it appropriate for one of the commissioners to testify at the hearing as to statements previously made by the judge seeking reappointment)?

We first point out with regard to your question that it is only on reappointment that the JSC would have to consider the admissibility of a prior interview statement. There is no subsequent hearing for a candidate seeking initial approval by the JSC or a judge seeking appointment to a different court. See Conn. Gen. Stat.  51-44a(f). This question thus requires us to analyze the role of the JSC in the scheme instituted by the General Assembly for the reappointment of judges to the same court. Conn. Gen. Stat.  51-44a(e). In making this analysis, we obviously follow the rule that we "must search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." Calfee v. Usman, 224 Conn. 29, 33 (1992).

Under Section 51-44a(e), each incumbent judge is to be reviewed by the JSC, taking into account "legal ability, competence, integrity, character and temperment of such judge and any other relevant information concerning such judge." The JSC is to investigate and interview each incumbent judge before the expiration of his term. "If a preliminary examination indicates further inquiry is necessary before a recommendation of reappointment may be made, the commission shall hold a hearing concerning the reappointment of such judge." Such a judge not immediately recommended by the JSC is to receive notice of the hearing and reasons therefore. The hearing may be open to the public at the option of such judge. The hearing is to be transcribed. The judge has the right to counsel, may present his own evidence, and may cross examine witnesses of the JSC. The judge also is given subpoena powers. Conn. Gen. Stat.  51-44a(g). After the hearing, a decision is to be made by the JSC on re-appointment. If reappointment is denied, the judge may seek rehearing but no appeal of any kind is allowed.

Your question in summary asks whether statements given by the judge in prior interviews with the JSC may be introduced as evidence at the hearing required to be held where "further inquiry is necessary." Unlike the initial investigation by JSC on reappointment, the "hearing" of  51-44a(e) is quasi-adjudicatory. The section authorizes the JSC to proceed with its evidence, both by witnesses and documents. The judge in turn may cross-examine these witnesses. Both the judge and the JSC are given subpoena power. See Conn. Gen. Stat.  51-44a(g).

At such a hearing prior relevant statements of the judge may be admitted into evidence. This conclusion logically follows from the provision of Conn.Gen.Stat.  51-44a(e) that the JSC must interview each judge initially, to determine immediately whether a favorable recommendation might be made, or whether a further hearing must be held. There is nothing in the statute or legislative history that would preclude the use of statements made by an incumbent judge during the course of prior interviews. Moreover, the confidentiality provision of  51-44a(j), which prohibits access by the public to JSC investigations, would not preclude introduction of the interview statements. The hearing would remain closed to all persons except the JSC and its staff and the judge and his representatives. Anyone giving evidence at the hearing not associated with the JSC would not be present when the evidence of the prior statements are given. See also Conn. Gen. Stat. 1-21g(a) for the analogous FOIA rule. As indicated, at the option of the judge, an open hearing may be held. That the hearing is open does not alter the result regarding the use of interview statements. As discussed above, the legislature intended that these interviews should be conducted and that they be utilized in the selection process. It effectuates legislative intent to make the interviews available to the JSC at the hearing required by  51-44a(e). In addition this election of the judge in permitting an open hearing waives the confidentiality provisions of  51-44a(j).2 See  1-18a(e) for a similar result under FOIA.

The legislative history of  51-44a(e) also supports this result. The representatives of the judges (William Lavery and Joseph Flynn) stated that they wanted a "careful review . . . in public and open. . . ." (March 13, 1989 Jud. Com. at 992). They had no objections to a "whole series of questionnaires" being presented at the hearing. Id. 1004. They repeatedly stated that while an open hearing might reveal negative material, they merely sought an opportunity for rebuttal. Id. 1008. The legislators accepted the judges' call for openness in crafting the hearing process.

You also ask about the means of placing these statements in evidence. There is no reason why these statements should not be subject to the relatively relaxed rules of evidence which govern administrative hearings. See Conn. Gen. Stat.  4-178; Murphy v. Berlin Bd. of Education, 167 Conn. 368, 376 (1974)(discussing concept of relevancy at agency disciplinary proceeding); Carlson v. Kozlowski, 172 Conn. 263, 266 (1977)(introduction of documents). This is especially true where the rights of confrontation and cross-examination are permitted at the hearing. See Conn. Gen. Stat.  4-178(5); Cassella v. Civil Service Com'n., 4 Conn. App. 359, 363, aff'd 202 Conn. 28 (1985) (regarding hearsay). Assuming the evidence of prior statements to be relevant, there appears to be no reason why it may not be offered by one of the JSC commissioners or a staff member including an investigator.

2. Your second question is as follows:

May a former member of the commission who participated in an interview of a person in connection with a previous application for appointment disclose to present members of the commission statements made by a candidate at the previous interview? If such disclosure is permitted, may the former commissioner testify at a hearing concerning the reappointment of a judge with respect to the statements previously made by that judge? Are the answers to these questions any different if the hearing is made public at the request of the judge?

With regard to your second question, for the reasons indicated above, so long as the statements are relevant, there is no reason why a former commissioner cannot communicate to the JSC members the statements either before or at the hearing required by Conn. Gen. Stat.  51-44a(e). Where a former commissioner communicates statements of a judge which he has gathered and relates the statements at a closed hearing, no public disclosure has been made. In addition where the judge waives the closed format, as indicated above he has agreed to permit disclosure to the public of any relevant material which the JSC chooses to introduce.

We hope these answers sufficiently respond to your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Henry S. Cohn
Assistant Attorney General

RB/HSC/js


Footnote:

1 Conn. Gen. Stat.  51-44a(j) provides as follows:

Except as provided in subsections (e) and (m) of this section, the investigations, deliberations, files and records of the commission shall be confidential and not open to the public or subject to disclosure except that the criteria by which candidates or incumbent judges who seek reappointment to the same court or appointment to a different court are evaluated and the procedural rules adopted by the commission shall be public.

2 So that a knowing waiver of rights might occur, the JSC should advise any judge contemplating an open hearing that its public non-disclosure provisions do not apply to the open hearing. A waiver is "the intentional relinquishment of a known right." Wadia Enterprises, Inc. v. Hirschfield, 224 Conn. 240, 251 (1993) and cases cited therein. The incumbent judge should be fully informed in his action in asking for an open hearing.


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