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A proposed amendment to Connecticut’s Code of Judicial Conduct that would give state judges the option of remaining on cases where a party has lodged a complaint against them isn’t sitting well with some members of the bar, including former Judicial Review Council (JRC) Chairman Hugh F. Keefe. “Judges ought to get off cases where they have been grieved,” Keefe maintained last week.”… How can you try a case and think you’re getting a fair shake when you have a [complaint pending] against the judge?” Under the proposed change to Canon 3 of the Code of Judicial Conduct, set to be voted on at the Superior Court judges’ annual meeting on June 25, jurists would not be automatically disqualified from presiding over a matter “merely because a lawyer or party to the proceeding has filed a lawsuit [or complaint to the JRC] against the judge.” Once learning a suit or complaint has been brought against them, judges, however, would be required to disclose that fact to the parties in the case, under the proposal. ‘TACTICAL REASONS’ Connecticut Supreme Court Justice David M. Borden, who chairs the Rules Committee of the Superior Court, said his panel drafted the amendment in response to litigants, particularly pro se litigants, who file complaints against judges solely as a means to have them recused from a case. Many jurists are under the impression that they have no alternative but to recuse themselves, but, as a general rule, they currently are not required to disqualify themselves in such situations, Borden said. “It would make explicit what was implicit,” he said of the proposed rule change. “We generally operate under the principle ‘If it ain’t broken, don’t fix it,’” Borden said of the rules committee. The issue, however, had prompted concern among several judges, he said. “There are occasions where the complaint may be filed just for tactical reasons,” said Judge Robert L. Holzberg, president of the Connecticut Judges Association. The amendment, Holzberg added, would put Connecticut in line with judicial conduct codes in “virtually every other jurisdiction across the country.” The rules committee also is recommending an accompanying change to Sections 1-22 of the Superior Court Rules, under which judges apprised of a party’s suit or complaint against them could either disqualify themselves, conduct a hearing on the disqualification issue, or refer the matter to another judicial authority. But Keefe, of New Haven, Conn.’s Lynch, Traub, Keefe and Errante, said the conflict of interest is so inherent that judges should have no choice but to step down from a case in which they’ve been grieved. Though many complaints filed with the Judicial Review Council are “undoubtedly” motivated by a litigant’s desire to force a judge into recusal, “That’s one of the costs you pay in having a fair system,” he argued. Still, even if the rule change is adopted, Keefe said he expected judges would continue to remove themselves from such proceedings because of the “blatantly obvious” conflict that presiding over the case would present. Civil rights attorney Norman A. Pattis, of New Haven’s Williams and Pattis, said he also opposes the amendment. [Pattis writes a weekly opinion column for The Connecticut Law Tribune that is frequently critical of judges.] “On the one hand, you don’t want [judges] to be disqualified too easily,” Pattis said. But this proposal, Pattis contended, is “a step in the wrong direction” and a move closer to the “bench becoming wholly unaccountable.”

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