Kelly et al v. Honeywell International Inc.
Filing
125
NOTICE OF DISCLOSURE AND INVOCATION OF CONFIDENTIAL PROCEDURE FOR REMITTAL OF DISQUALIFICATION. In accordance with the attached notice, the Court advises the parties of the basis for potential disqualification and to allow the parties to decide on a confidential basis whether they wish to consent to remittal of disqualification. It is so ordered. Signed by Judge Jeffrey A. Meyer on 1/21/2020. (Al-Jarani, Y.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID KELLY et al.,
Plaintiffs,
No. 3:16-cv-00543 (JAM)
v.
HONEYWELL INTERNATIONAL INC.,
Defendant.
NOTICE OF DISCLOSURE AND INVOCATION OF CONFIDENTIAL
PROCEDURE FOR REMITTAL OF DISQUALIFICATION
On August 21, 2019, this case was transferred from another judge to the docket of Judge
Meyer. Doc. #111. On January 17, 2020, the parties filed a joint motion for preliminary approval
of settlement. Doc. #124. The parties’ submission includes a list of class members, and upon
Judge Meyer’s review of the list he recognized the name of one of the class members, Gary C.
Bernacki, Sr., as a person whom Judge Meyer personally knows. The purpose of this notice is to
advise the parties of the basis for potential disqualification and to allow the parties to decide on a
confidential basis whether they wish to consent to remittal of disqualification.
Several years ago when Judge Meyer was a visiting professor of law with the Supreme
Court Advocacy Clinic at Yale Law School, Judge Meyer was part of a team of attorneys who
represented Mr. Bernacki pro bono for purposes of a certiorari petition that was filed with the
U.S. Supreme Court and that was denied. See Bernacki v. Connecticut, 133 S. Ct. 1804 (2013).
Judge Meyer thereafter represented Mr. Bernacki pro bono in the Connecticut Superior Court for
purposes of a criminal resentencing proceeding. Mr. Bernacki was sentenced to approximately
one year of imprisonment, and while Mr. Bernacki was serving his term of imprisonment, Judge
Meyer continued to represent him pro bono for purposes of addressing his concerns about
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medical treatment furnished by the Connecticut Department of Correction. Following Mr.
Bernacki’s release from imprisonment at some point in 2014, Judge Meyer recalls Mr. Bernacki
visiting his chambers with another attorney for lunch in or about 2014, and again in 2016. Judge
Meyer does not recall seeing or speaking with Mr. Bernacki since 2016. Mr. Bernacki, however,
frequently sends Judge Meyer well wishes by text message on holidays, and Judge Meyer
ordinarily responds by text message with reciprocal well wishes. Until Judge Meyer’s review of
the parties’ class list today, Judge Meyer was not aware of Mr. Bernacki’s involvement with this
litigation.
A judge is required to recuse himself in any proceeding in which his impartiality might
reasonably be questioned. See 28 U.S.C. § 455(a). Canon 3(C) of the Code of Conduct for U.S.
Judges lists the following grounds for disqualification:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances in
which:
(a) the judge has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with
whom the judge previously practiced law served during such association as a
lawyer concerning the matter, or the judge or lawyer has been a material witness;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s
spouse or minor child residing in the judge’s household, has a financial interest in
the subject matter in controversy or in a party to the proceeding, or any other
interest that could be affected substantially by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to either within the third
degree of relationship, or the spouse of such a person is:
(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding; or
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(iv) to the judge’s knowledge likely to be a material witness in the
proceeding;
(e) the judge has served in governmental employment and in that capacity
participated as a judge (in a previous judicial position), counsel, advisor, or
material witness concerning the proceeding or has expressed an opinion
concerning the merits of the particular case in controversy.
Canon 3(D) of the Code of Conduct for U.S. Judges provides that a disqualification may
be subject to consent remittal by the parties under certain circumstances:
Remittal of Disqualification. Instead of withdrawing from the
proceeding, a judge disqualified by Canon 3C(1) may, except in
the circumstances specifically set out in subsections (a) through
(e), disclose on the record the basis of disqualification. The judge
may participate in the proceeding if, after that disclosure, the
parties and their lawyers have an opportunity to confer outside the
presence of the judge, all agree in writing or on the record that the
judge should not be disqualified, and the judge is then willing to
participate. The agreement should be incorporated in the record of
the proceeding.
Judge Meyer does not believe that his relationship with Mr. Bernacki establishes any of
the mandatory grounds for disqualification listed in subsections (a) through (e) of Canon 3C(1).
On other hand, Judge Meyer concludes that his impartiality might reasonably be questioned in
view of the relationship as described above with Mr. Bernacki. Although the current settlement
posture of this case makes it unclear that Judge Meyer will be asked to resolve any controverted
issues that call into question the interests of Mr. Bernacki, Judge Meyer concludes on balance
that he should disqualify himself unless the parties choose to remit the disqualification pursuant
to Canon 3(D).
For cases involving potential remittal of disqualification pursuant to Canon 3(D), the
District of Connecticut has a confidential procedure by which the parties may notify the Clerk of
Court whether they wish to consent to a judge’s continued participation in a case. Counsel for the
parties communicate directly with the Clerk of Court, and the Clerk of Court may not advise the
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judge at issue whether any particular party has declined to consent to the judge’s continued
participation in the case.
The Clerk of Court communicates to the counsel of record the means of filing any
consents and a requested response date. If all counsel timely file consents with the Clerk of Court
by the requested response date, then the consents shall be made a part of the record, and the case
remains with the judge. On the other hand, if one or more parties does not file a consent with the
Clerk of Court by the requested response date, then the Clerk of Court randomly reassigns the
case to another judge. The Clerk of Court is directed to contact the parties for purposes of
initiating its confidential remittal of disqualification procedure.
It is so ordered.
Dated at New Haven this 21st day of January 2020.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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