In re Illuzzi

In re Illuzzi (95-346); 164 Vt 623; 670 A.2d 1264

[Filed 6-Dec-1995]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 95-346



  In re Vincent Illuzzi, Esq.     }     APPEALED FROM:
                                  }
                                  }
                                  }     Professional Conduct Board
                                  }
                                  }
                                  }     DOCKET NO. 94.41


  Present:  Gibson, Dooley, Morse and Johnson, JJ.


	Respondent Vincent Illuzzi has moved to recuse the four undersigned
  members of this court from participating in the appeal of a Professional
  Conduct Board recommendation that he be disbarred.  His alleged grounds for
  recusal are that (1) we filed the complaint that ultimately led to the
  Board's recommendation, (2) we are the defendants in a civil law suit he
  filed in federal district court, (3) our impartiality in this matter has
  been questioned in several newspaper articles and editorials, and (4) we
  have had political disagreements with respondent in his capacity as a
  member of the Vermont Senate.

       Under normal circumstances, none of the stated grounds would warrant
  our recusal.  Contrary to respondent's claims, we did not direct bar
  counsel to file misconduct charges against him; rather, we merely asked the
  Board to determine whether respondent's unfounded complaints against a
  trial court judge violated the Code of Professional Responsibility, given
  the  circumstances surrounding the filing of the complaints.  The
  distinction is significant.  See Goldman v. Bryan, 764 P.2d 1296, 1300-01
  (Nev. 1988)(supreme court justices were not disqualified from hearing
  appeal of decision removing judge from office where letter and documents
  signed by the justices referred to judge's disciplinary proceedings but did
  not suggest that justices had prejudged case); In re Robinson, 247 S.E.2d 241, 245-46 (N.C. Ct. App. 1978)(where judge's notice of misconduct charges
  against attorney contained language indicating the judge had prejudged the
  matter, judge was required to remove himself from disciplinary proceedings;
  had judge merely provided notice of charges, disqualification would not
  have been required).  Further, requiring a judge's disqualification "merely
  because a litigant sues or threatens to sue" the judge would permit
  manipulation of the court and judge shopping.  In re Vermont Supreme Court
  Admin. Dir. No. 17, 154 Vt. 217, 226, 576 A.2d 127, 132 (1990); cf. Ball v.
  Melsur Corp., 161 Vt. 35, 39, 633 A.2d 705, 709 (1993)(recusal not mandated
  whenever judge is  subject of judicial conduct complaint by attorney). 
  Moreover, media reports, such as the ones cited by respondent, that are
  generated by unnamed sources and based on unsupported opinions, rumors, and
  innuendos, generally are not a proper basis for recusal because they allow
  self-interested or vindictive informants and/or misinformed or
  irresponsible reporters to control the choice of judge.  State v. Hunt, 147
  Vt. 631, 631-32, 527 A.2d 223, 223-224 (1987).  Finally we specifically
  reject the notion that the political disagreements claimed by the
  respondent are related in any way to the grounds for the Board's action or
  our letter to the Board.  This proceeding relates solely to respondent's
  actions in the Judicial Conduct Board, an arm of the judicial branch, and
  not to his legislative or other actions.

       Nevertheless, we cannot ignore the fact that respondent's status as a
  state senator and his suit against us have triggered numerous media reports
  focusing on his treatment by the judicial branch.  Although we have no
  doubt that we could fairly and impartially decide this matter, these unique
  circumstances have created a climate in which a reasonable, disinterested
  member of the public could doubt our impartiality.  See Admin. Order No.
  10, Canon 3E(1)(judge shall be disqualified in proceedings in which judge's
  impartiality might reasonably be questioned); Ball, 161 Vt. at 39, 633 A.2d 
  at 709 (standard in Canon 3E(1) is met whenever doubt of impartiality
  would exist in mind of reasonable, disinterested observer).  Accordingly,
  we recuse ourselves to refocus the case on the issue of respondent's
  conduct.