Attorney General: Richard F. Banbury, Esq., Executive Director Council on Probate Judicial Conduct, Formal Opinion 2007-030, Attorney State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 4, 2007

Richard F. Banbury, Esq.

Executive Director

Council on Probate Judicial Conduct

One State Street

Hartford, CT 06103-3101

 

Dear Attorney Banbury:

 

Thank you for your letter requesting my opinion on whether the Council on Probate Judicial Conduct (“the Council”) has jurisdiction over a complaint concerning alleged misconduct committed during a Judge of Probate’s term of office, but not filed until after the expiration of the judge’s term.  As discussed herein, the Council’s exercise of jurisdiction under these circumstances is both permissible under the Council’s enabling statutes and important to further the public’s confidence in the impartial and effective administration of justice and provide ethical guidance to present and future probate judges.

 

The Council’s enabling and jurisdictional provisions are codified in Part IV of Chapter 801 of the General Statutes.  Nothing in those provisions precludes the Council from exercising jurisdiction over misconduct complaints concerning former judges of probate.  To the contrary, the Council’s investigative and adjudicatory jurisdiction, set forth in Conn. Gen. Stat. § 45a-63(a), requires the Council to investigate

 

every written complaint brought before it alleging conduct of judges which may violate    any law or canon of ethics applicable to judges of probate, or failure to perform properly the duties of the office, or conduct prejudicial to the impartial and effective administration of justice which brings the judicial office in disrepute, or final conviction of a felony or of a misdemeanor involving moral turpitude, or disbarment or suspension as an attorney-at-law, or the willful failure to file a financial statement or the filing of a fraudulent financial statement required under section 45a-68. 

 

Conn. Gen. Stat. § 45-63(a)(emphasis added).  The only limitation on the Council’s jurisdiction to investigate such complaints is contained in Conn. Gen. Stat. § 45a-63a, which provides that “[n]o complaint for judicial misconduct against a judge of probate shall be brought under section 45a-63 but within eight years from the date the alleged judicial misconduct was committed.”  Conn. Gen. Stat. § 45a-63a. 

 

My understanding is that the complaint referenced in your letter satisfies these jurisdictional prerequisites – that is, the complaint is in writing, it concerns conduct allegedly constituting misconduct committed by a probate judge during his term of office, and it is not barred by § 45a-63a’s eight-year statute of limitations. 

 

The exercise of the Council’s jurisdiction in these circumstances is supported by compelling policy considerations.  The Supreme Court has explained the purposes of judicial discipline as follows:

 

The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice. The discipline we impose must be designed to announce             publicly our recognition that there has been misconduct; it must be sufficient to deter the judge from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future. Thus, we discipline a judge not for purposes of   vengeance or retribution, but to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the citizens that the judiciary of their state is dedicated to the principle that ours is a government of laws and not of men.

 

In re Dean, 246 Conn. 183, 206 (1998)(internal citation and quotation omitted).  

 

These purposes would be significantly undermined if the Council were divested of jurisdiction to investigate or discipline misconduct by the expiration of a probate judge’s term.  Any such result could create a public perception that judicial misconduct is tolerated and would deprive current and future probate judges of the ethical guidance flowing from the Council’s vigorous enforcement of its statutory charge.

 

The termination of a probate judge’s term does not moot the complaint against him because the Council retains the ability to issue effective relief.  Cf., e.g., State v. Fabricatore, 89 Conn. App. 729, 743 (2005)(matter moot where the tribunal can no longer grant practical relief).  To be sure, not every remedy normally available to the Council would apply in a case involving a former judge of probate.  See Conn. Gen. Stat. § 45a-65(c)(providing for recommendation of impeachment).  However, the Council would retain the authority to issue a censure or admonishment pursuant to Conn. Gen. Stat. § 45a-65(a), which would serve the practical and important purposes of bolstering public confidence in the fairness and integrity of the probate judicial system and providing ethical guidance.  Indeed, the only statutory remedy not available would be a recommendation of impeachment.  Courts have held that the availability of relief furthering these purposes provides continuing jurisdiction to discipline retired judges.  See, e.g., In re Johnstone, 2 P.3d 1226, 1233 (Alas. 2000); In re Cox, 658 A.2d 1056, 1057 (Me. 1995); In re Yaccarino, 502 A.2d 3, 30-31 (N.J. 1985). 

 

In a closely related context, the Connecticut Supreme Court affirmed the Judicial Review Council’s censure of a judge whose term expired without renomination during the pendency of disciplinary proceedings, despite the fact that the Judicial Review Council’s enabling statutes do not explicitly authorize the exercise of jurisdiction over former judges.  See In re Flanagan, 240 Conn. 157, 160 n. 1 (1997); see also Conn. Gen. Stat. § 51-51h (defining scope of Judicial Review Council’s authority).

 

You correctly note that certain of the Council’s enabling statutes refer to “judge” or “judges” without reference to retired or former judges.  See Conn. Gen. Stat. § 45a-63(d)(“. . . the Judge shall have the right to appear and be heard[.]”); § 45a-64 (“Any judge of probate who is under investigation and appears before the hearing shall be entitled to counsel . . .”).  These references need not - - and should not - -  be construed as limiting the Council’s authority. Because the General Assembly has expressed no intent  to limit the Council’s jurisdiction over former probate court judges, the terms “judge” and “judges” in the Council’s enabling statutes are better construed as encompassing any respondent who was a judge of probate at the time of the conduct at issue in the complaint.  

 

Finally, your letter notes that the respondent is apparently still eligible for election as a probate judge and will continue to be so at the time of the next probate court election in 2010.  This fact provides additional support for the conclusion that the Council can and should exercise its jurisdiction.  See Statewide Grievance Committee v. Burton, 282 Conn. 1, 14 (2007)(concluding that Statewide Grievance Committee retained authority to discipline disbarred attorney and holding: “The defendant has not been disbarred for life, but for a specified period of time. Accordingly, she may seek readmission to the bar when her term of  disbarment expires and adjudication of her predisbarment conduct will provide the plaintiff with a more complete and accurate record of her background and character if she applies for readmission.”).

 

In sum, I conclude that the Council retains jurisdiction to investigate and, if appropriate, discipline a former judge of probate whose alleged misconduct occurred prior to the expiration of his term. 

 

 

Very truly yours,

 

 

 

RICHARD BLUMENTHAL
ATTORNEY GENERAL


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