Attorney General's Opinion
Attorney General Richard Blumenthal
August 12, 1994
Richard A. Silver
Judicial Selection Commission
165 Capitol Avenue
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:
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:
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,
Henry S. Cohn
Assistant Attorney General
1 Conn. Gen. Stat. 51-44a(j) provides as follows:
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.