Do judicial misconduct investigation records become public after a probable cause finding?

Plain-English summary

In 2006, Attorney General Richard Blumenthal concluded that a probable cause finding ended confidentiality for the entire investigative file of the judicial misconduct matter. Records obtained before that finding became public along with later material. Before the decision, the investigation remained confidential unless the respondent sought openness.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Judicial Review Council at the time

The 2006 opinion read the confidentiality period in Conn. Gen. Stat. § 51-51l(a) as ending with the probable cause decision. The council could not keep the earlier part of the same investigation closed merely because it had collected those records before making that decision.

Complainants and the public at the time

The AG's reading covered the complaint, hearing transcripts, statements and other evidence gathered during the investigation. The finding of probable cause was the point at which records for that matter became publicly accessible under the opinion.

Common questions

Q: Did records collected before the probable cause finding stay confidential?
A: No. The AG said all investigative records concerning the complaint became public after the finding, regardless of when the council obtained them.

Q: Were misconduct complaints public while the council was deciding probable cause?
A: The opinion said the investigation remained confidential during that period unless the respondent requested that it be open.

Q: Did the opinion require disclosure for complaints without a probable cause finding?
A: No. Its answer addressed records in a matter after the council found probable cause.

Background and statutory framework

The council chair asked whether access after a probable cause finding reached only newly collected records or the whole investigative file. The AG relied on the word “prior” in Conn. Gen. Stat. § 51-51l(a) to read confidentiality as a time limit. He also noted that the statute made the ensuing hearing public under Conn. Gen. Stat. § 51-51l(c).

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. § 51-51l(a); Conn. Gen. Stat. § 51-51l(c).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2006-formal-opinions/raymond-m-hassett-esq-chair-judicial-review-council-formal-opinion-2006020-attorney-general-state-of

Original opinion text

Raymond M. Hassett, Esq., Chair, Judicial Review Council, Formal Opinion 2006-020, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 15, 2006

Raymond M. Hassett, Esq.

Chair

Judicial Review Council

505 Hudson Street

Hartford, CT 06126

Dear Attorney Hassett:

You have asked my opinion regarding the Judicial Review Council’s obligation to permit public access to records of investigations of complaints of judicial misconduct. In particular, you ask whether the public's right to disclosure after a probable cause finding by the Judicial Review Council (“the JRC”) in a particular matter extends to all investigative records obtained or compiled by the JRC prior to the probable cause finding. A narrower reading of the law would hold that the public’s right of access extends only to investigative records obtained or compiled by the JRC after the probable cause finding.1 As discussed below, all investigative records concerning complaints of judicial misconduct in a particular matter -- regardless of when obtained or compiled -- become public upon the JRC’s finding of probable cause.2

Your question primarily concerns the proper construction of Conn. Gen. Stat. § 51-51l(a), which provides in relevant part that “any investigation to determine whether or not there is probable cause that conduct under section 51-51i has occurred shall be confidential and any individual called by the council for the purpose of providing information shall not disclose his knowledge of such investigation to a third party prior to the decision of the council of whether probable cause exists, unless the respondent requests that such investigation and disclosure be open, provided information known or obtained independently of such investigation shall not be confidential.” Conn. Gen. Stat. § 51-51l(a).

In determining the meaning and scope of Section 51-51l(a), we look to the statute's language, history and context. See, e.g., State v. Patterson, 276 Conn. 452, 478-79 (2005)("In construing statutes, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.")(internal quotation marks omitted)(internal citations omitted); School Administrators of Waterbury v. Waterbury Financial Planning and Assistance Board, 276 Conn. 355, 356 (2005)("The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.")

The JRC is charged by the Connecticut Constitution as well as the legislature with investigating and adjudicating complaints of judicial misconduct. See Conn. Const. Amend. XI (1976), now incorporated as Conn. Const. Art. Fifth § 7; Conn. Gen. Stat. § 51-51k et seq. The scope of judicial misconduct over which the JRC has jurisdiction is defined in § 51-51i (“Grounds for removal, suspension and censure”), which incorporates by reference the Canon of Judicial Ethics.

The JRC investigates and adjudicates complaints of judicial misconduct pursuant to the three-stage process set forth in Conn. Gen. Stat. § 51-51l. The JRC first reviews a complaint to determine whether, on its face, it warrants investigation. See Conn. Gen. Stat. § 51-51l(a). If so, the JRC initiates a confidential investigation to determine whether or not there exists probable cause to believe that proscribed conduct has occurred. Id. During its investigation, the JRC may receive and review, by subpoena or otherwise, documents and testimony. See Conn. Gen. Stat. §§ 51-51l and 51-51o. If probable cause is found, the JRC proceeds to a public hearing. See Conn. Gen. Stat. § 51-51l(c).

The degree of confidentiality afforded records and proceedings relating to an investigation of judicial misconduct turns on whether the complaint in question has been found to be supported by probable cause. Section 51-51l(a) requires that “any investigation to determine whether or not there is probable cause that conduct under section 51-51i has occurred shall be confidential and any individual called by the council for the purpose of providing information shall not disclose his knowledge of such investigation to a third party prior to the decision of the council of whether probable cause exists, unless the respondent requests that such investigation and disclosure be open, provided information known or obtained independently of such investigation shall not be confidential.” Conn. Gen. Stat. § 51-51l(a)(emphasis added).

Under the plain language of Conn. Gen. Stat. § 51-51l(a), the JRC’s investigation -- which includes the complaint, transcripts of evidentiary proceedings, statements and/or other documentary evidence obtained or compiled during the investigation -- is confidential only prior to the decision on whether probable cause exists. The use of the term “prior to” demonstrates the legislature’s intention to impose a temporal limitation on confidentiality. Once the JRC determines that a complaint is supported by probable cause, the cloak of confidentiality falls away and the public has a right to access all investigatory records concerning the complaint that have resulted in the probable cause finding and public hearing that follows. Nothing in § 51-51l(a) or elsewhere expressly or implicitly suggests that only investigatory records compiled after the probable cause finding are public.

A review of relevant legislative history clearly demonstrates that, upon a finding of probable cause, the legislature intended that all investigatory records be public, no matter when compiled or obtained. The current temporal limitation on confidentiality -- “prior to the decision of the council of whether probable cause exists” -- was added to § 51-51l(a) as part of a review and revision of the statutes governing the JRC. This review was conducted by the Legislative Program Review and Investigations Committee of the General Assembly (“the Committee”). In its report, which formed the basis for Public Act 92-160 (“An Act Concerning The Implementation Of The Recommendations Of Legislative Program Review Committee Concerning the Judicial Review Council”), the Committee explained its recommendation to amend the law to increase public access to JRC records as follows:

Once probable cause is found, under current law, the record of the subsequent proceedings, but nothing prior, is open. However, the rationale of shielding totally baseless complaints is removed once probable cause is found. In the opinion of the committee, the whole record should be open in such cases. The program review committee recommends the statutes be amended to provide for disclosure of the entire record of a complaint for which probable cause has been found.

Legislative Program Review Committee Report re: Judicial Review Council, May 1992, at 34 (emphasis by bold in original, emphasis by italics added).

Similarly, in discussing the relevant portion of Public Act 92-160, Representative Robert D. Bowden, co-chair of the Committee and co-sponsor of the Public Act, stated: “In the remaining sections after the section on terms, discuss the confidentiality of the investigations, which need not prevail after probable cause is found, if it is found.” House Transcript, May 5, 1992, at 22 (comments of Rep. Bowden)(emphasis added).3

Thus, in revising the JRC’s confidentiality provision, the legislature intended that a finding of probable cause would result in opening the entire record of a complaint, including the record compiled prior to the finding.

This legislative directive is consistent with the clear statutory requirement that, upon a finding of probable cause, further proceedings on a complaint are open to the public. See Conn. Gen. Stat. § 51-51l(c)(“If a preliminary investigation indicates that probable cause exists that the judge … is guilty of misconduct under section 51-51i, the council shall hold a hearing concerning the conduct or complaint. All hearings held pursuant to this subsection shall be open.”).

The conclusion is further supported by an analysis of the relevant public interests. There unquestionably exist strong policy reasons for maintaining confidentiality of records of complaints that have not - - or have not yet - - been found to be supported by probable cause. However, by distinct contrast, there is no clear or overriding public interest that would justify the continuing confidentiality of investigatory records after a finding of probable cause has been made.

The purposes underlying the requirement of confidentiality of JRC records at the pre-probable cause stage were aptly summarized by the Second Circuit Court of Appeals as follows:

[C]onfidentiality before a finding of probable cause: (1) allowed the JRC to dispose of frivolous or harassing complaints without lending them credibility; (2) enhanced Connecticut’s ability to attract highly qualified judges who might otherwise be deterred from public service by the prospect of numerous public complaints being lodged against them; (3) ensured the independence of Connecticut’s judiciary by reducing the possibility that judges would be intimidated or influenced by belligerent complainants; (4) encouraged complaints, assistance in investigations, and complete and truthful testimony; (5) allowed the JRC to informally encourage infirm or incompetent judges to retire prior to a public hearing; and (6) increased the ability of attorneys to monitor the judicial system without engendering the hostility of the judiciary.

Kamasinski v. Judicial Review Council, 44 F.3d 106, 108-09 (2d Cir. 1992)(summarizing findings of then-United States District Judge Jose A. Cabranes).4

As the Court noted, these public policy interests yield to the goal of full public disclosure after a JRC finding of probable cause: “[o]nce the JRC has determined whether or not there is probable cause that judicial misconduct has occurred, even Connecticut’s most compelling interests cannot justify a ban on the public disclosure of allegations of judicial misconduct.” Id at 112.

In sum, no legal basis or rationale exists for denying public access to investigatory records - - regardless of when obtained - - concerning complaints after there is a finding of probable cause. Full access is clearly mandated by the statutory language, relevant legislative history and public policy.

Please do not hesitate to contact me if I can be of further assistance on this or any other matter.

Very truly yours,

RICHARD BLUMENTHAL

1 According to statute, until the JRC makes a decision whether probable cause exists, all records concerning complaints of judicial misconduct are non-public, unless the respondent judge elects to make such records public. See Conn. Gen. Stat. § 51-51l(a).

2 For purposes of this opinion, investigatory records include but are not limited to the complaint, transcripts of evidentiary proceedings, and statements and/or other documentary evidence obtained or compiled during the investigation.

3 The report of the Office of Legislative Research concerning Senate Bill 387, which became Public Act 02-160, similarly states that the bill “limits confidentiality to the period prior to the council’s determination on whether probable cause exists.” OLR Amended Bill Analysis Report re: SB 337 (File 555, as amended by Senate “A” and House “A”), at 3. The legislative record also includes the comments of Senator Joseph H. Harper, co-chair of the Committee, who stated:

Current law prohibits anyone called by the council to provide information in a probable cause investigation from disclosing his knowledge of the investigation to any third party. The amendment limits this confidentiality provision to the period prior to the council’ss decision on whether probable cause exists. This section essentially will put our law in compliance with a ruling recently by federal judge Cabranes on this item.

Senate Transcript, May 2, 1992, at 26 (comments of Sen. Harper). The ruling by then-United States District Judge Jose A. Cabranes, referenced by Senator Harper, is discussed below.

4 While relevant in its discussion of the public policies underlying pre-probable cause confidentiality, the decision in Kamasinski answered a question not posed here: whether the First Amendment permits the State to prohibit a complainant from disclosing that he or she has filed a complaint. See Kamasinski, 44 F.3d at 108.