Advisory Opinion No. 1999-8

Application Of Conn. Gen. Stat. §§1-84(b) And (c), To A Judiciary Committee
Member Called Upon To Vote On The Nomination Or Reappointment
Of An Appellate Court Judge When The Attorney Member
Has A Case Pending Before The Appellate Court

Representative John Wayne Fox, a practicing attorney and a member of the Judiciary Committee, has asked what restrictions, if any, the Code of Ethics for Public Officials, Conn. Gen. Stat. Chapter 10, Part I, imposes on a legislator voting on the nomination or reappointment of an individual to the Appellate Court when such legislator has a matter pending before that Court. The Judiciary Committee has jurisdiction over all judicial nominations in addition to its cognizance of all matters relating to courts, judicial procedures and the Judicial Department. See, The Joint Rules of the Senate and House of Representatives Journal of the House. As members of the General Assembly, all members of the Judiciary Committee are "Public Officials" within the meaning of Conn. Gen. Stat. §1-79(k) and are therefore governed by the Code’s provisions.

Conn. Gen. Stat. §1-84(b) prohibits a public official from accepting other employment that will, among other things, impair his or her independence of judgment as to his or her official duties. Conn. Gen. Stat. §1-84(c) in part seeks to guard against a public official’s use of public office, however inadvertent, for financial gain.

Against the backdrop of these provisions, the State Ethics Commission, in Declaratory Ruling Number 89-D, declined to prohibit any appearance whatsoever by Judiciary Committee Member attorneys before all courts of this state, which would in effect virtually eliminate the outside legal employment of some part-time legislators. However, in this narrowly crafted ruling, the State Ethics Commission advised against any attorney-legislator participating in the reappointment process of a Judge before whom he or she has a pending case, given the likelihood of an inadvertent violation of Conn. Gen. Stat. §1-84(c) under that scenario. Declaratory Ruling Number 89D does not address the specifics of participating in such process where the Judge is a member of the Appellate Court and the attorney-legislator has a case pending before that Court which may or may not involve the Judge under consideration.

While the Superior Court consists of one hundred seventy-four individual judges pursuant to Conn. Gen. Stat. §51-165(a), the Appellate Court consists of only nine judges who sit in panels of three, or en banc, pursuant to rules adopted by the Appellate Court. Conn. Gen. Stat. §51-197c. An individual must be a Judge of the Superior Court to qualify for nomination and appointment to the Appellate Court. Id. In contrast to a case pending in the Superior Court, a case pending before the Appellate body will necessarily be heard, if at all, by a full third of its members.

As then State Supreme Court Chief Justice Ellen A. Peters once stated, "[w]ith the best will in the world, how can a Judge ignore the fact that one of the litigants is represented by an attorney who will decide the judge’s eligibility for renomination? Although the Judge intends to act forthrightly, the very possibility of a conflict of interest casts an unwelcome shadow over the propriety of the proceedings." Remarks by the Honorable Ellen A. Peters, State of the Judiciary Address, February 22, 1989, Journal of the House at p. 660. And although a violation of the Ethics Code would be unintentional, the inadvertent use of office would result in any case where prospective clients of the Judiciary Committee member attorney even incorrectly perceive potential advantage over opposing parties by virtue of his or her selection of an attorney Judiciary Committee member. It is even more natural to conclude that others not represented by the attorney-member will assume that the attorney-member’s clients are being favored by the Court over which he or she has such significant official influence regardless of the attorney-member’s obvious ability and professionalism. See, State Ethics Commission Declaratory Ruling Number 89D, page 2. Therefore, consistent with the Commission decision in Declaratory Ruling 89D, an attorney Judiciary Committee member should not take official action on the reappointment of a member of the Appellate Court if he or she has a matter pending before that Court.

Additionally, the legislator should not take such action on a judge’s initial appointment to the Appellate Court. In contrast to the Superior Court, where the attorney Judiciary Committee member may theoretically have a case before the nominee at some undetermined point in the future, here the legislator has a pending matter before the nine member tribunal to which the judge seeks appointment. This distinction substantially increases the potential conflict of interests, and is sufficient to require that the legislator refrain from acting on both appointments and reappointments to the Appellate Court when, in his or her capacity as a member of the bar, the legislator has a case pending before that Court.

While safeguarding against even inadvertent use of office in violation of §1-84(c), a prohibition against an attorney-member’s vote on the appointment or reappointment of an Appellate Court Judge when the attorney-member has a case pending in that Court safeguards also against a public surmise that the attorney-member’s independence of judgment is impaired due to his or her misplaced considerations made on behalf of a paying client.

By order of the Commission,

Stanley Burdick
Chairman