Velardo v. Ovitt
Annotate this Case
Velardo v. Ovitt (2006-184)
2007 VT 69
[Filed 27-Jul-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 69
No. 2006-184
Paul Velardo Supreme Court
On Appeal from
v. Franklin Family Court
Sarah Ovitt January Term, 2007
James R. Crucitti, J.
Nanci A. Smith, Montpelier, and Richard L. Ducote, Pittsburgh,
Pennsylvania, for Plaintiff-Appellant.
Nicholas L. Hadden and Scott R. Bortzfield of Law Office of Nicholas
Hadden, St. Albans, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Allen, C.J. (Ret.), Specially Assigned
¶ 1. DOOLEY, J. This is a custody dispute over a seven-year-old
child. Father appeals the family court's award of legal rights and
responsibilities over the child to mother asserting, among other claims,
that he is entitled to a new trial because an assistant judge who sat in
the case is the sister of the guardian ad litem (GAL), and the relationship
was not revealed until after trial. We hold that the undisclosed sibling
relationship between the assistant judge and the GAL required recusal of
the assistant judge pursuant to Canon 3E(1) of the Code of Judicial
Conduct. As a remedy for the litigants, we find that, under the
circumstances, we must vacate the family court's order and remand for a new
trial. (FN1) In the interests of judicial economy, however, we address one
other of father's claims because it is likely to reappear in subsequent
proceedings.
¶ 2. Father filed a parentage action in August 2003, shortly after
he left the parties' home, seeking custody of the parties' then
four-year-old son. The State also brought a CHINS action (child in need of
care or supervision) that same month. Father made numerous allegations
that mother had abused the child. The parties reconciled in February 2004,
but by December of that year they were again in litigation over the child.
The presiding family court judge appointed Mary Connor to serve as GAL for
the child on March 7, 2005. She submitted a brief report to the court
dated July 9, 2005. In it, she noted twice that "[e]very report of child
abuse was followed up by [mother] bringing her son . . . to be seen by [the
child's doctor] to rule out abuse." She recommended, consistent with a
previous order of the court, that father be awarded only supervised
visitation.
¶ 3. In the course of the litigation, the parties stipulated that
Jan Tyler, Ph.D., would conduct a forensic evaluation of the child. She
completed her report in January 2004 and recommended that mother be awarded
primary physical and legal responsibility for the child. Father's counsel
at the time agreed to admit the report. Later, however, father's new
counsel objected to its admission on the ground that it contained
impermissible hearsay.
¶ 4. In October 2005, the family court issued a thirty-one-page
decision giving mother sole legal and physical custody of the child and
providing for supervised visitation by father. The decision was signed by
the presiding judge and Assistant Judge Teresa Manahan. It was based on
evidence presented in eight separate hearings. The court noted the
presence and written recommendation of the GAL in one sentence at the
beginning of its order. The court also chronicled each audio, video, and
photographic record of the child taken by father and his parents. It found
that each party could provide the child with "a safe environment," but
found that, although father "clearly was the primary care provider for the
child while the parties lived together," there were countervailing
"problems created by his continuing need to interrogate the child" about
mother's alleged abuse. The court noted, on the other hand, mother's
"insight" and "appropriate concern and responsibility for the child" as
shown through her continued cooperation in the investigation of the child's
welfare. In light of these differences, the court awarded mother sole
legal rights and responsibilities and awarded father parent-child contact
to be "supervised by responsible adults as agreed by the parties."
¶ 5. Father subsequently moved for a disqualification of the
judges and for a new trial because of the post-trial revelation that the
GAL and Assistant Judge Manahan are sisters, and because Judge Manahan
participated in the custody decision. Judge Manahan did not respond to the
motion. The GAL did respond, acknowledging that she is the sister of Judge
Manahan, but stating that she had no ex parte communications with the
judge. The presiding judge did not rule on the motion for a new trial and
referred the disqualification motion to the administrative judge. The
administrative judge declined to disqualify Judge Manahan because there was
nothing pending before her at that time and declined to disqualify the
presiding judge because any claims he was "contaminated" based on his
contact with the assistant judge were speculative. Father also requested a
new trial based on the family court's consideration of the Tyler report;
the court denied this motion. On appeal, father contests the denial of
these motions, as well as the administrative judge's denial of his
post-trial request to remove the assistant and presiding judges from the
case. We address the remedy for the assistant judge's alleged ethical
violation first, and proceed briefly to father's other claims.
¶ 6. The paramount aim of our Code of Judicial Conduct is to promote
public confidence in our judiciary. Such public confidence is an essential
element of any properly functioning legal system. As the first words of
the Vermont Code of Judicial Conduct state:
Our legal system is based on the principle that an independent,
fair and competent judiciary will interpret and apply the laws
that govern us. The role of the judiciary is central to American
concepts of justice and the rule of law. Intrinsic to all
sections of this Code are the precepts that judges, individually
and collectively, must respect and honor the judicial office as a
public trust and strive to enhance and maintain confidence in our
legal system.
A.O. 10, Preamble. To ensure the judicial independence and public trust on
which our legal system is based, judges are subject to strict standards of
conduct. They are required to recuse themselves from sitting on a case
where their "impartiality might reasonably be questioned." Id. Canon
3E(1). In this case, we are required to determine whether this standard
was violated, and if so, whether the parties are entitled to a particular
remedy.
¶ 7. The Code is binding on "anyone, whether or not a lawyer, who
is an officer of the judicial system and who performs judicial functions."
A.O. 10, Terminology [11] (defining "judge"). Unquestionably, this
includes assistant judges. In re Kroger, 167 Vt. 1, 5-6, 702 A.2d 64, 67
(1997) (per curiam) (applying A.O. 10, Canons 1 and 2A to assistant judge);
State v. Hunt, 150 Vt. 483, 492, 555 A.2d 369, 375 (1988) (applying A.O.
10, Canon 3 to assistant judges). Canon 3E, formerly Canon 3C, controls
the disqualification of judges. It states in no uncertain terms that "[a]
judge shall disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned." A.O. 10, Canon 3E(1)
(emphasis added). It then gives a nonexhaustive list of instances in which
recusal is required. Id. One such instance is when "a person within the
fourth degree of relationship" to the judge "is a party to the proceeding,
or an officer, director or trustee of a party," is "acting as a lawyer" in
the proceeding, or "is to the judge's knowledge likely to be a material
witness in the proceeding." Id. Canon 3E(1)(d)(i), (ii), (iv). It is
undisputed that, as sisters, the assistant judge and GAL were related
within four degrees. See A.O. 10, Terminology [9] (defining "fourth degree
of relationship" as including sisters).
¶ 8. Both the assistant judge and the GAL had significant, but
limited, roles in this custody case. Thus, the first question is whether
Canon 3E(1) requires recusal of an assistant judge if a GAL is within the
fourth degree of relationship to the judge. The assistant judge is a
unique Vermont judicial officer who is elected at the county level and is
also responsible for "care and superintendence of county property," as well
as other county administrative responsibilities. 24 V.S.A. § 131; see also
id. §§ 133, 171, 211. Assistant judges are elected in each county. Vt.
Const. ch II, § 50. For purposes of many family court proceedings -
including a parentage action such as the one here, 4 V.S.A. § 454(1) - the
court consists of the presiding judge plus the available assistant judge or
judges. Id. § 452(a). In such cases, the full court decides questions of
fact, and the presiding judge decides questions of law and mixed questions
of fact and law. See id. § 457(b). A custody determination is a mixed
decision of fact and law. See Woodbury v. Woodbury, 161 Vt. 628, 628-29,
641 A.2d 367, 367 (1994) (mem.) (explaining that assistant judges may not
award custody but that "the presiding judge must make the custody
determination based on the findings of fact of the court, which include the
findings of fact of the assistant judges"). Thus, even though Assistant
Judge Manahan signed the custody determination in this case, that signature
must be taken to represent approval of the factual findings only.
¶ 9. Nevertheless, although the assistant judge's role is more
limited than that of the presiding judge, we see no reason why that
limitation affects the application of Canon 3E(1), at least in a proceeding
that resolves factual issues. Thus, an assistant judge must recuse
herself under the same circumstances as a presiding judge. We held exactly
as much in Richard v. Richard, in which we required the disqualification of
assistant judges consistent with Canon 3. 146 Vt. 286, 288, 501 A.2d 1190,
1191 (1985), superseded on other grounds by V.R.C.P. 40(e).
¶ 10. The coverage of the GAL in Canon 3E is more complicated. As
discussed above, the Canon specifically mentions parties, lawyers, and
expected witnesses, but does not list GALs by name. A GAL may be appointed
in a parentage proceeding where the "determination of parental rights and
responsibilities is a substantial issue." V.R.F.P. 7(c). A GAL is
appointed by the court to be "an independent parental advisor and advocate"
who "safeguard[s] the child's best interest." Id. 7(d). The rules provide
that GALs "shall state to the court a position and the reasons therefor."
Id. The policies of the Vermont Guardian ad Litem Program, a program of
the Vermont Judiciary, amplify these responsibilities in pertinent part:
A Guardian ad Litem serves as:
. . . .
An Advocate for the best interests of the child by assuring the
judge is presented with all information he or she needs to further
the child's best interests. The Guardian ad Litem is an
independent spokesperson whose goal is to ensure the child's best
interests receive priority over the best interests of other
parties in the case.
A Facilitator working to ensure the court, the parties, and
service providers work together to meet the child's best interests
in a timely fashion.
A Monitor of all activities ordered by the court to make certain
court orders are followed and to bring any need for enforcement or
change in court orders to the attention of the child's attorney.
The goal of monitoring is to ensure treatment of the child is
sensitive to his or her age and need, and progress towards
permanency is reasonable.
http://www.vermontjudiciary.org/GAL (follow "About Vermont GALs" hyperlink;
then follow "General Description & Role of the Guardian ad Litem"
hyperlink).
¶ 11. We have recognized that, where the court is faced with a "lack
of neutral witnesses" in a closely contested custody case, the input of a
GAL is critical. Johnson v. Johnson, 163 Vt. 491, 497, 659 A.2d 1149,
1152 (1995). Although the court "may assign counsel for a minor" in child
custody proceedings, V.R.F.P. 7(b), appointment of counsel generally does
not occur, and the child's interests must be protected by the GAL. See
Putnam v. Putnam, 166 Vt. 108, 116, 689 A.2d 446, 450 (1996) (explaining
that counsel for the child is generally not assigned, but that minor's
interests are "adequately protected" by GALs). A GAL may be called as a
witness, if necessary, where his or her testimony "would be directly
probative of the child's best interest." V.R.F.P. 7(d).
¶ 12. Even without being called to testify, GALs are under a duty to
provide information to the court. Judges depend on GALs, like the other
trial participants covered in Canon 3E(1), to "assur[e] the judge is
presented with all information he or she needs to further the child's best
interests." http://www.vermontjudiciary.org/GAL (supra, ¶ 10).
Especially where there is no lawyer for the child, the GAL is an advocate
for the child's interest. We hold, therefore, that the duties of GALs in
contested custody cases such as the parentage proceeding before us bring
them within Canon 3E(1)(d). Because Canon 3E(1)(d) applies, Assistant
Judge Manahan should have disclosed her relationship and recused herself
when she became aware that her sister was appointed GAL, or the court
should have appointed a different GAL.
¶ 13. Two other points bear discussion before we address the issue
of remedy. First, because recusal motions must be submitted to the
administrative judge, V.R.C.P. 40(e), we review the denial of such a motion
for abuse of discretion only. Ball v. Melsur Corp., 161 Vt. 35, 40, 633 A.2d 705, 710 (1993). We cannot, however, impose that standard of review
here. The presiding judge never ruled on the motion to disqualify the
assistant judge or on the motion for a new trial based on the alleged
violation of the Code. The administrative judge refused to rule on the
disqualification motion because, by the time it was made, there were no
questions of fact remaining before the family court. Thus, there was not
an exercise of discretion to review for abuse. We are left in a situation
in which we must decide and apply the appropriate standard with no decision
to review.
¶ 14. Second, we regret that the issue arose only after the evidence
had been taken and the court had rendered its decision, particularly
because this is a child custody proceeding in which the imperative is to
come to a permanent custody arrangement as soon as reasonably possible. It
is undisputed, however, that neither the GAL nor the assistant judge
disclosed that they are siblings, and father learned of their relationship
only after the decision had been rendered. As the New Hampshire Supreme
Court emphasized in Blaisdell v. City of Rochester, 609 A.2d 388, 390
(1992): "[W]e caution that it is the judge's responsibility to disclose,
sua sponte, all information of any potential conflict between himself and
the parties or their attorneys when his impartiality might reasonably be
questioned. . . . Neither the client nor his attorney have any obligation
to investigate the judge's impartiality." While we also regret the expense
and anguish that has already gone into this proceeding, it is critical that
the decision be viewed as fair. We said in Ball:
[T]he record also shows that the administrative judge acknowledged
the potential waste of resources that would result were the
five-day trial aborted by a recusal of the trial judge at the end
of the third day. Conservation of scarce judicial resources,
though a constant concern, does not enter into the consideration
of whether recusal is necessary. Rule 40(e)(1) does require
recusals to be resolved as soon as practicable, presumably to
reduce the risk of waste inherent in mistrials. The rule clearly
stipulates, however, that "[a] motion which is filed in violation
of [Rule 40(e)(1)] shall not for this reason be denied"; attorney
sanctions are the prescribed deterrent for delay. This provision
demonstrates an unwillingness to allow considerations of economy
to override assurance of fairness in a matter as important as
recusal of the trial judge.
161 Vt. at 41, 633 A.2d at 710-11 (citation and footnote omitted). This
reasoning applies with equal force here.
¶ 15. This brings us to the remedy. Our analysis begins with three
previous decisions of the Court. The oldest, Hill v. Wait, 5 Vt. 124
(1831), well predates the adoption of the Code, but bears a striking
resemblance to the facts at bar. There, a justice of the peace rendered
judgment over a plaintiff within the fourth degree of relationship to him,
contrary to a statute prohibiting justices of the peace from presiding over
such parties. Id. at 127. We concluded that the judgment "must be
pronounced void," id., and therefore affirmed the county court's decision
to vacate it. Id. at 128.
¶ 16. Later, but also prior to the adoption of the Code, we vacated
a decision of an assistant judge who sat as a justice of the peace in
violation of the Vermont Constitution. Watson v. Payne, 94 Vt. 299, 301,
111 A. 462, 462 (1920). There we cited with approval the rule of many
courts that, even where the vote of the disqualified judge is not
necessary, "decisions made in disregard of the prohibitions of the law" are
void. Id. at 302, 111 A. at 463 (quotation omitted). We added:
The same rule has been applied when the disqualified judge has
acted simply as one of a bench composed of several judges, even
though his vote was not necessary to a decision. The reason . . .
is that, "Whatever a party may consent to do, the state cannot
afford to yield up its judiciary to such attack and criticism as
will inevitably follow upon their decisions made in disregard of
the prohibitions of the law." This rule seems to us to be founded
upon reason and justice, and in fact to be the only safe rule to
follow.
Id. at 301-02, 111 A. at 463 (citations omitted). The chief concern in
Watson was the protection of the appearance of fairness and independence of
our legal system.
¶ 17. Finally, and more recently, we affirmed a decision of this
Court where all five justices participated in the decision, the unanimous
decision was published, and one justice subsequently disqualified himself
in response to a motion to do so by a party. State v. Lund, 168 Vt. 102,
718 A.2d 413 (1998). There, unlike the previous two cases and the instant
case, the appropriateness of the judge's conduct was not at issue because
the judge recused himself without any further determination of whether his
recusal was required. Id. at 110, 718 A.2d at 418. We joined the numerous
courts that have held that a unanimous decision need not be vacated where
one of the participating justices later recuses himself if the disqualified
judge's vote was "mere surplusage." Id. at 110-11, 718 A.2d at 418.
¶ 18. In this case, mother is correct that assistant judges perform
a unique function in our judicial system; it is precisely this unique role
that counsels against affirming the custody order at issue. As discussed
above, assistant judges are limited to findings of fact, and the presiding
judge must base his or her conclusions of law in part on those findings.
Woodbury, 161 Vt. at 629, 641 A.2d at 368. As an appellate court, we place
substantial reliance on determinations of fact and credibility made by the
family court, including assistant judges. See id. Ultimately, therefore,
this case is more similar to the justice-of-the-peace cases, Watson and
Hill, than it is to Lund, especially because, from our removed and
deferential review of family court findings, we simply cannot say which
fact-finder's work was mere surplusage in the highly fact-sensitive process
of making a custody determination. Cf. Lund, 168 Vt. at 111, 718 A.2d at
419 (Dooley, J., concurring).
¶ 19. Furthermore, Lund involved a unanimous, five-member decision,
id. at 110, 718 A.2d at 418, whereas here we are effectively dealing with a
tie between the presiding and assistant judges. The closeness of the
numbers alone renders the "mere surplusage" analysis impracticable in this
context. Moreover, if the assistant judge's vote in this case is mere
surplusage, the vote of an assistant judge would seem to always be
surplusage when there is only one assistant judge and one presiding judge.
Thus, parties could be afforded no remedy for ethical violations of the
assistant judge, no matter how extreme the conflict of interest.
Recognizing Lund as the controlling precedent would go too far as it would
require us to uphold findings even if, for example, the son or daughter of
the assistant judge appeared as a lawyer for one of the parties. Rather
than condition a remedy for the parties on the number of votes alone, we
find a more context-specific standard appropriate here, see id. at 111, 718 A.2d at 419 (Dooley, J., concurring), particularly where the work of the
judge at issue is strictly a determination of fact, on which we are
uniquely reliant.
¶ 20. In reaching this conclusion, we recognize mother's argument
that the circumstances of the ethical violation in this case are such that
there can be no remedy available to father. This argument relies on the
unique status of assistant judges and is suggestive of the "mere
surplusage" analysis of Lund, 165 Vt. at 110-11, 718 A.2d at 418. Mother
argues that, since the assistant judge could not sit under the Code, she
was unavailable. When both assistant judges are unavailable, as was the
case here, (FN2) the "court shall consist of the presiding judge alone." 4
V.S.A. § 457(c). Similarly, if an assistant judge becomes unavailable
during a trial, the matter continues without the assistant judge's
participation. Id. § 457(f). Thus, mother argues that, because the
findings of fact were signed by the presiding judge, they are valid as the
product of a lawful court despite the disqualification of the assistant
judge.
¶ 21. We cannot accept mother's argument. The assistant judge was
available in fact and participated in the decision; it is this
participation that led to the issue before us. While we can analogize the
situation, as mother urges, to one in which the assistant judge is
unavailable, we can also analogize it to a situation in which the assistant
judge participates but disagrees with the presiding judge, leaving a tie
and no effective vote. Ultimately, our decision here must be made on other
grounds. Further, the findings of fact are the joint product of the
presiding judge and the assistant judge. We cannot invade the sanctity of
the deliberations that led to those findings, nor should we. We must
assume that they represent the collegial work product of all participants
in the decision. Thus, we cannot assume that the findings would be the
same if they had been written by the presiding judge sitting alone.
¶ 22. As we said at the outset, we are particularly concerned here
with public confidence in the functioning of the judiciary and the
appearance of fairness and independence of our legal system. Even if we
could accept mother's position that the assistant judge's participation is
surplusage as a matter of law, we doubt that the public could accept that
the assistant judge's role as one of two fact-finders in a highly
fact-sensitive case did not influence the result. We think the rule that
mother espouses would significantly undermine the perception of fairness in
family court adjudication.
¶ 23. We return, then, to the general nature of remedies available
to litigants for actions taken by a judge after disqualifying circumstances
arise. In addition to our own common law, summarized above, some courts
have held that actions by a judge who should be disqualified will only be
overturned in certain circumstances. Thus, for example, the Supreme Court
of North Dakota has held: "Prior orders of a disqualified judge generally
are not void where the judge was not personally biased or prejudiced
against a party, the disqualification was based on only a possible
appearance of impropriety, and the challenged rulings were correct."
Sargent County Bank v. Wentworth, 547 N.W.2d 753, 760 (1996); see also Hull
& Smith Horse Vans, Inc. v. Carras, 376 N.W.2d 392, 395 (Mich. Ct. App.
1985); State v. Alonzo, 973 P.2d 975, 979 (Utah 1998); Tennant v. Marion
Health Care Found., Inc., 459 S.E.2d 374, 386-87 (W. Va. 1995). Decisions
from other jurisdictions illustrate both a per se void rule under which all
orders of the now-disqualified judge must be vacated, and a more flexible
"harmless error" approach. See generally Abramson, Appearance of
Impropriety: Deciding When a Judge's Impartiality "Might Reasonably Be
Questioned," 14 Geo. J. Legal Ethics 55, 73-74 (2000) (collecting cases).
¶ 24. The most comprehensive analysis of the alternatives to voiding
the action of a disqualified judge is contained in Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847 (1988), a decision that has also
been adopted in a number of states. See Abington Ltd. P'ship v. Heublein,
717 A.2d 1232, 1238 (Conn. 1998) (acknowledging Liljeberg and requiring a
new trial where judge failed to recuse himself in violation of Canon 3);
Harris v. United States, 738 A.2d 269, 281 n.20 (D.C. 1999) (describing
"different harmless error analysis" under Liljeberg for appearances of
partiality); Scott v. United States, 559 A.2d 745, 750-51 (D.C. 1989)
(explaining that review for "actual prejudice" under the traditional
harmless error analysis is "inconsistent with the goal of Canon 3[E(1)] to
prevent even the appearance of impropriety"); Mosley v. State, 141 S.W.3d 816, 838-39 (Tex. App. 2004) (applying three-prong Liljeberg test to
determine remedy where judge failed to recuse himself). Liljeberg has its
critics. See Blaisdell, 609 A.2d at 391 (rejecting Liljeberg, and
describing "inconsisten[cy] with the goals of our code to require certain
standards of behavior from the judiciary in the interest of avoiding the
appearance of partiality, but then to allow a judge's ruling to stand when
those standards have been violated").
¶ 25. In Liljeberg, the Court found that the trial judge violated
28 U.S.C. § 455(a) which, like Canon 3, requires a federal judge to
disqualify himself "in any proceeding in which his impartiality might
reasonably be questioned." The Court deemed the judge's violation of the
statute "plain" even though it found his failure to recuse himself to be
"the product of a temporary lapse of memory" that the university for which
he was a trustee had a financial interest in the trial over which he
presided. 486 U.S. at 861. The Court made clear that "[s]cienter is not
an element" of a violation of the statute because the standard is whether a
judge's " 'impartiality might reasonably be questioned' by other persons."
Id. at 859 (quoting § 455(a)).
¶ 26. Finding the judge's failure to recuse himself impermissible,
the Liljeberg Court proceeded to address the issue of remedy. Id. at 862.
It outlined a three-prong test for determining whether a judgment should be
vacated for a violation of the recusal statute. The Court weighed heavily
the mere "appearance of impropriety" that resulted in the case, as well as
the significance of vacatur as a message to judges and litigants in future
cases. Id. at 867-68. The Court explained that, in determining the remedy
for a judge's failure to disqualify himself, a court must consider: (1)
"the risk of injustice to the parties in the particular case," (2) "the
risk that the denial of relief will produce injustice in other cases," and
(3) "the risk of undermining the public's confidence in the judicial
process." Id. at 864.
¶ 27. The Court's analysis of the three factors was brief. Taking
the third factor first, the Court concluded that, although the judge "did
not know of his fiduciary interest in the litigation," he nevertheless
"certainly should have known," and the facts created "precisely the kind of
appearance of impropriety that § 455(a) was intended to prevent." Id. at
867-68. It added that "[t]he violation is neither insubstantial nor
inexcusable," and particularly faulted the judge for denying recusal even
after all the facts were known. Id. As to the second factor - the risk of
injustice in other cases - the Court stated that "providing relief in cases
such as this will not produce injustice in other cases; to the contrary,
[it] may prevent a substantive injustice in some future case by encouraging
a judge or litigant to more carefully examine possible grounds for
disqualification and to promptly disclose them when discovered." Id. at
868. With respect to this factor, the Court noted that vacatur was
appropriate "unless it can be said that respondent did not make a timely
request for relief, or that it would otherwise be unfair to deprive the
prevailing party of its judgment." Id. As to the first factor - fairness
to the particular litigants - the Court agreed with the Court of Appeals
that there was a "greater risk of unfairness in upholding the judgment . .
. than there [was] in allowing a new judge to take a fresh look at the
issues." Id. Thus, it affirmed the Court of Appeals' order vacating the
original judgment.
¶ 28. In general, we endorse the Liljeberg approach. We reject the
North Dakota Supreme Court's holding that orders of a judge who creates an
appearance of impropriety cannot be set aside unless there is a showing of
actual bias or prejudice. Sargent County Bank, 547 N.W.2d at 760. On this
point, we agree with the New Hampshire Supreme Court that such a rule
"would be inconsistent with the goals of our code to require certain
standards of behavior from the judiciary in the interest of avoiding the
appearance of partiality, but then to allow a judge's ruling to stand when
those standards have been violated." Blaisdell, 609 A.2d at 391. On the
other hand, we believe that Blaisdell's holding that a judge's failure to
disqualify can never be harmless goes too far.
¶ 29. Applying these factors to the case at bar, we similarly
conclude that the family court's custody determination must be vacated and
the case remanded for a new trial. Like the United States Supreme Court in
Liljeberg, we emphasize that the appearance of impropriety here is
substantial and the conduct that created it is inexcusable. Here, unlike
Liljeberg, the assistant judge had actual knowledge of the source of the
conflict. Thus, the assistant judge had an independent duty to disclose
the relationship that created the conflict of interest and failed to do so.
(FN3) See A.O. 10, Canon 3G ("A judge shall disclose to the parties any
fact or matter relevant to the question of impartiality that, in the
judge's view, may require disqualification under Section 3E(1)."). In fact,
there is no indication that the assistant judge has ever acknowledged the
conflict or explained the circumstances that caused her to disregard it.
The judge's silence in the face of a motion for a new trial makes the
appearance of impropriety even more troubling. (FN4)
¶ 30. If there is a factor weighing against the remedy of a new
trial it is the interests of the litigants. This is a particularly
acrimonious custody battle, and the child desperately needs a permanent
custodial relationship that continues contact with both parents free from
accusations and recriminations. A new trial will not bring about that
result quickly, if at all. Moreover, the GAL's on-the-record participation
in the proceeding is limited. She submitted a relatively brief written
recommendation on custody and otherwise was essentially silent throughout
the evidentiary hearings.
¶ 31. But even on this factor, the record supports a new trial.
The family court characterized this as a "very difficult and troubling
case," suggesting the result was not easily reached. The court ultimately
reached the result recommended by the GAL, and it did so at least partially
for the reasons advanced by the GAL. The appearance of influence,
therefore, is significant. We emphasize that the inquiry with respect to
this factor is not whether the decision in question could have been reached
based on the evidence before the court. See Kay S. v. Mark S., 142 P.3d 249, 257 (Ariz. Ct. App. 2006) (applying Liljeberg factors in divorce
case). Particularly because we afford such wide discretion to the family
court, we cannot determine with any precision the influence of partiality,
if any.
¶ 32. The third factor - the risk of injustice in other cases - also
supports a new trial. As the Supreme Court decided in Liljeberg,
willingness to enforce the ethical requirement here "may prevent a
substantive injustice in some future case by encouraging a judge or
litigant to more carefully examine possible grounds for disqualification
and to promptly disclose them when discovered." 486 U.S. at 868. We agree
with the District of Columbia Court of Appeals that granting relief in this
case has "prophylactic value." Scott, 559 A.2d at 755.
¶ 33. On this factor, we acknowledge that there may exist other
contested family court cases in which the assistant judge participated in
the decision and her sister served as the GAL. The availability of relief
in any such case would require a full analysis of the circumstances, as
undertaken here. We would look particularly at whether any complaining
party was unaware of the sibling relationship and acted in a timely fashion
once becoming aware of it. We find it unlikely that there are a
substantial number of cases, if any, that would meet this standard.
¶ 34. Finally, we note that we have applied a similar remedy where
we found that a GAL had made a custody recommendation based on information
not contained in the record. Johnson, 163 Vt. at 497, 659 A.2d at 1153.
We noted in Johnson that we could not determine the impact of the GAL's
custody recommendation but nevertheless reversed the custody decision.
Id.; see also Gilbert v. Gilbert, 163 Vt. 549, 559, 664 A.2d 239, 244
(1995) (reversing and remanding family court's custody determination where
it was "impossible to separate" improperly admitted GAL report from other
evidence).
¶ 35. Because of our disposition, we do not address father's
argument that the court's conclusions were not supported by its findings.
In the course of a new trial there will necessarily be new findings. We
will, however, briefly address father's claim that the Tyler report was
improperly admitted because this issue is likely to be litigated again. By
statute, reports of an expert "evaluating the best interests of the child"
are admissible to determine parental rights and responsibilities "provided
that the expert is available for cross-examination." 15 V.S.A. § 667(b).
Dr. Tyler is an expert and she was available for cross-examination. In
forming her report, an expert can rely on facts not admissible or admitted
into evidence as long as the facts are of a type reasonably relied on by
experts in the field. V.R.E. 703. These facts can include hearsay
statements. State v. Prior, 174 Vt. 49, 56-57, 804 A.2d 770, 776 (2002).
Under controlled circumstances, the evidence forming the basis of the
expert's opinion can be admissible on that ground even if it is otherwise
inadmissible. See State v. Recor, 150 Vt. 40, 48, 549 A.2d 1382, 1388
(1988); Reporter's Notes to 2004 Amendment, V.R.E. 703.
¶ 36. We do not know how the Tyler report will be used on remand, if
it all. We do not review its use in forming the decision now on appeal.
It is sufficient to say that the family court had discretion to admit it.
Father's attempt to liken it to that of a GAL, subject to the limitation on
using non-record evidence, is unavailing because the report is that of an
expert witness as authorized by a rule of evidence and specific statute.
V.R.E. 703; 15 V.S.A. § 667(b). Nor are we persuaded that the report's
distribution prior to trial was impermissible because it tainted other
witnesses.
Reversed and remanded.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. We address only what is necessary for purposes of father's appeal of
the family court's order in this case. Thus, although we find a violation
of the Code as a matter of law, we do not address the issue of disciplinary
consequences, if any. See Liljeberg v. Health Servs. Aquisition Corp., 486 U.S. 847, 862 (1988) (finding, as matter of law, violation of federal
statute controlling judicial conduct, but addressing only remedy for
litigants, not discipline). Unlike a disciplinary hearing, the assistant
judge is not a party to this appeal. It is for the Judicial Conduct Board
to independently decide in the first instance, in any disciplinary
proceedings that may occur, whether there was a violation and what
sanction, if any, should be imposed. In re Hill, 152 Vt. 548, 555, 568 A.2d 361, 365 (1989) (per curiam) (stating that this Court's constitutional
responsibility for judicial and attorney discipline "is carried out in the
first instance through the Judicial Conduct Board, established by Rule 4 of
the Rules of Supreme Court for Disciplinary Control of Judges").
FN2. The other Franklin County assistant judge was unavailable and did not
participate in the trial at all.
FN3. It may be that the assistant judge thought that the litigants or their
lawyers were generally aware of the sibling relationship and would
immediately raise a concern if it were warranted. It is not appropriate to
make such an assumption. See Blaisdell, 609 A.2d at 391. Nor is it
appropriate for the judge to require a party or lawyer to raise the issue.
FN4. We appreciate that the GAL did address the ethical violation when
father filed his motion to disqualify and for a new trial. The GAL's
response, however, addressed a claim not made - that she engaged in ex
parte communications with the assistant judge.
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