Opinion
No. CV 06 5003257
July 1, 2011
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY/RECUSE
The defendant John A. Braca, Jr. has filed a motion requesting that the court recuse itself from all further proceedings in the above-captioned action. The defendant is dissatisfied with the various post-judgment and post-appeal rulings this court has made. In particular the defendant disagrees with court's ruling finding Braca, Jr. in contempt of the court's orders regarding the return of a Chevrolet Corvette automobile from its present out of state location. Utzler v. Braca, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV06 5003257 (April 15, 2010, Arnold, J.). The defendant appealed the court's finding of contempt. The Appellate Court dismissed the appeal on July 28, 2010; Braca's Petition for Certification to the Connecticut Supreme Court was denied on September 29, 2010. Utzler v. Braca, 298 Conn. 928 (2010).
On January 5, 2011, a hearing was held to determine the extent of sanctions to be imposed upon Mr. Braca for his continuing contempt of the Court's orders dated April 15, 2010, wherein Mr. Braca was ordered to turn over the subject Chevrolet Corvette motor vehicle to the state marshal. See. Utzler v. Braca, supra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV06 5003257 (April 15, 2010, Arnold, J.). On January 5, 2010, the court ordered Mr. Braca incarcerated for contempt unless or until he returned the subject vehicle, as ordered, or in the alternative, posted a $5,000 purge bond. The sum of $5,000 was deemed by the court not to be a punitive sum in light of (1) Braca's claims of indigency; (2) the value of the subject motor vehicle, which was estimated at approximately $20,000 and; (3) the outstanding judgment amount of $640,000. See Utzler v. Braca, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT-CV-06-5003257 S (Apr. 25, 2008, Tyma, J.).
Judgment was for $500,000.00 damages and $140,000.00 punitive damages for CUTPA violation.
Subsequent to the above-noted court hearing, the defendant filed a complaint against the court with the State of Connecticut Judicial Review Council. The subject complaint filed with the Judicial Review Council on January 6, 2011, was dated June 29, 2010, more than six months prior to the sanctions ordered against Mr. Braca on January 5, 2011. On January 6, 2011, Braca posted the $5,000 purge bond and was released from incarceration. Further court proceedings occurred on March 2, 2011 for oral argument to determine the merits of Mr. Braca's motion requesting that the court recuse itself from his case and to not order that the $5,000 purge bond be distributed to his creditor, but rather be returned to Braca and his family.
Rule 2.11(A)(1) and (E) of the Code of Judicial Conduct, effective January 1, 2011, reads in relevant as follows:
(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(E) A judge is not automatically disqualified from sitting on a proceeding merely because a lawyer or party to the proceeding has filed a lawsuit against the judge or filed a complaint against the judge with the judicial review council. When the judge becomes aware that such a lawsuit or complaint has been filed against him or her, the judge shall, on the record, disclose that fact to the lawyers and parties to the proceeding before such judge, and shall thereafter proceed in accordance with Practice Book Section 1-22(b).
Practice Book § 1-22b regarding disqualification of the judicial authority reads as follows:
(b) A judicial authority is not automatically disqualified from sitting on a proceeding merely because an attorney or party to the proceeding has filed a lawsuit against the judicial authority or filed a complaint against the judicial authority with the judicial review council. When the judicial authority has been made aware of the filing of such lawsuit or complaint, he or she shall so advise the attorneys and parties to the proceeding and either disqualify himself or herself from sitting on the proceeding, conduct a hearing on the disqualification issue before deciding whether to disqualify himself or herself or refer the disqualification issue to another judicial authority for a hearing and decision.
At the March 2, 2011 hearing, the court disclosed to all parties on the record that Braca's complaint against the court was pending at the Judicial Review Council. On April 20, 2011, the Judicial Review Council dismissed Braca's complaint against the court. The Judicial Review Council found that there was no violation of the Code of Judicial Conduct or General Statutes § 51-51i.
The Code of Judicial Conduct "requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge's impartiality on the basis of all the circumstances . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority." (Citations omitted; internal quotation marks omitted.) Wasko v. Farley, 108 Conn.App. 156, 165-66, 947 A.2d 978 (2008); State v. Ortiz, 83 Conn.App. 142, 150, 848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).
"Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard . . . The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances . . ." (internal quotation marks omitted.) Joyner v. Commissioner of Correction, 55 Conn.App. 602, 608 (1999) 740 A.2d 424 (1999), quoting, Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 820, 717 A.2d 1232 (1998).
The comments of a judge regarding the truthfulness of a defendant which do not stem from an extrajudicial source, but rather are related to merits of the subject case and not a preconceived view of credibility of witness are not grounds for recusal or disqualification of the court. Barca v. Barca, 15 Conn.App. 604, 613-14, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988). A judge can rely on personal knowledge of historical or procedural facts acquired as a result of presiding over the proceeding itself in assessing the credibility of the defendant witness.
Judge Tyma, the original trial judge, found the defendant to be less than credible. Utzler v. Braca, supra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT-CV-06-5003257 S (Apr. 25, 2008, Tyma, J.) His findings were affirmed in Utzler v. Braca, 115 Conn.App. 261, 972 A.2d 743 (2009). The Appellate Court stated:
We note at the outset that the court expressly ruled on the defendant's credibility with respect to the findings he disputes on cross appeal . . . The court's assessment that the defendant was not credible was particularly significant for its findings in this case because, as the court observed, the financial statements and other documentary evidence that the defendant presented at trial were riddled with unexplained omissions . . . The court's finding of the defendant's lack of credibility informs, with particular force, our review of all of his claims on cross appeal because each raises questions of fact that were peculiarly within the authority of the trial court to decide — an authority to which we must defer.
Id., 272-73.
The court has considered the relevant sections of the Code of Judicial Conduct and the official commentaries, thereto, as well as the case law. Applying those standards to the present case and the subject motion, the court determines there is no valid reason to disqualify or recuse itself from further proceedings involving the defendant. The motion is denied.
The court is currently aware that the plaintiff has filed additional motions to enforce the previous rulings of this court. Due to changes in judicial assignments, as promulgated by the Chief Court Administrator's Office, this court is no longer assigned to the Judicial District of Fairfield. Accordingly, all future proceedings in this matter will be referred by the Civil Presiding Judge to a judge currently assigned to civil matters at the Judicial District of Fairfield.
CT Page 14738