Judge Swings Back; Ricci Case Stalls

(Updated: 2 p.m.) U.S. District Judge Janet Bond Arterton Thursday defended herself against an attack on her impartiality in the ​“New Haven 20” firefighters case, but failed to sway an attorney who wants a different judge.

The attorney, Karen Lee Torre, declared in Judge Arterton’s Church Street courtroom Thursday that she’ll file a motion in two weeks arguing that the judge should remove herself from presiding over the case because of alleged bias.

As a result, the employment discrimination case—Ricci v. DeStefano, which has returned to New Haven after a landmark U.S. Supreme Court ruling — will be stalled until at least mid-February.

Arterton mounted her defense during a courtroom conference on Thursday morning. Judge Arterton responded to questions Torre had raised during a surprise grilling at a previous conference on Jan. 20 and a subsequent exchange on Jan. 27.

Torre represents the ​“New Haven 20” in the Ricci case, which pits a group of mostly white firefighters against the city in a hiring discrimination dispute.

Citing extensive case law, Judge Arterton Thursday sought to dispel Torre’s concerns about her former law firm’s actions, as well as those of her husband.

She also spoke to concerns about an alleged improper relationship with New Haven attorney David Rosen. Rosen represents Michael Briscoe, a black firefighter trying to intervene in the Ricci case.

Judge Arterton said that she will not rule on any other motions in the case until she has addressed Torre’s recusal motion. That means Ricci is frozen for a fortnight — and maybe longer, if Torre’s motion is successful; or if Torre decides to appeal a dismissal of her recusal motion.

The Ricci case stems from a 2003 fire department promotions exam. Torre’s clients — dubbed the ​“New Haven 20” — sued the city in 2004 after it threw out the results of the test when no black firefighters scored highly enough to be among the first round of promotions. The case went to the Supreme Court, which ruled in favor of the New Haven 20 (and overruled a prior ruling by Arterton) in June 2009.

Now the case is back in New Haven, where the question of plaintiffs’ damages remain to be addressed. Also at issue is Briscoe’s attempt to intervene in the case. Briscoe is a member of the New Haven Firebirds, an organization of black New Haven firefighters.

Speaking at length from the bench on Thursday, Arterton addressed Torre’s questions one by one. She first spoke about how her former law firm represented the Firebirds 18 years ago. The substance of that case was not related to Ricci, Arterton said. Nor were any of the parties in Ricci involved in the 18-year-old case. It is therefore not related, Arterton said.

Next: the judge’s relationship with attorney Rosen. ​“While Mr. Rosen’s relationship with Ms. Torre sounds troubled, mine is simple,” Arterton said. She described the professional circumstances in which she has known Rosen. She has appointed him to two pro bono cases and presented him with an award at a dinner in 2008, Arterton said.

The judge answered questions about her husband’s alleged work as a polling consultant for Mayor John DeStefano, the defendant in the case. ​“My husband [Christopher Arterton] confirmed what I had thought,” Arterton said: He never worked for DeStefano.

Arterton then returned to the subject of the old Firebirds case. Not only was she not involved in that case, and not only are no plaintiffs the same in the Ricci case, Arterton said. But 18 years have passed. She then read from extensive case law demonstrating that judges in similar circumstances have not needed to be recused.

As the judge spoke, Attorney Torre picked up her iPhone and began paging through it.

Arterton concluded that she saw no reason to recuse herself. She asked that it Torre still plans to file a motion to recuse, that she do so ​“forthwith.” Torre asked for two weeks to work on the motion. Judge Arterton granted the request and promised not to rule on any other motions in the meantime.

Torre declined to comment on her upcoming motion.

Torre v. Arterton

Thursday’s conference was a follow-up to conferences on Jan. 20 and 27, at which Torre subjected the judge to relentless questioning about potential improprieties or conflicts of interest on the part of the federal judge.

Torre quizzed Arterton about her former law firm’s representation of black firefighters, speeches she has given, her husband’s career, and the judge’s relationship with New Haven attorney David Rosen.

Judge Arterton, who has nearly 15 years on the bench, called Torre’s ​“interrogation” ​“highly irregular.”

The details of the tense back and forth between Torre and Arterton are spelled out in an 89-page court transcript of the Jan. 20 conference.

The pointed questioning at times took on a Perry Mason air, as the lawyer quizzed judge about her precise whereabouts and activities on certain dates.

Torre began on a combative note.

“The only reason I have not filed that motion is because for some reason, with all due respect, your Honor, you have been resisting my efforts to gain an opportunity to speak with you about the recusal issue. I have been asking for that opportunity since Dec. 4,” she said.

“Can you get to the substance of your request?” Arterton replied. ​“Thank you.”

Torre said that although in 22 years she has never sought to recuse a judge, ​“I will tell you that the plaintiffs are filing a motion to recuse your Honor from this case.” The motion will be directed at the standards of 28 U.S.C. Section 455 (a), which covers the appearance of impartiality or bias. Torre threatened that she may file another motion, under part (b) of the statute, which covers the presence of actual bias.

“I have not made that determination, Judge Arterton, whether this motion should be filed. That is largely going to depend on what I hear from the Court today.” Torre warned. ​“But the motion under the (a) section is going to be filed, that decision has been made.”

Torre acknowledged that it is an ​“extremely unpleasant thing for me to do, but I have to.”

Arterton asked why Torre doesn’t simply file the motion without discussing it with her first.

Torre responded that ​“the breadth of the motion is something I cannot fully assess,” without asking the judge for certain ​“disclosures.”

Thus began Torre’s examination of the federal judge.

First Torre wanted to know how the Ricci case came to Arterton’s court. She charged that there had been ​“an unprecedented swap of judges in this case.”

“Now you understand it was randomly assigned to me, do you not?” Arterton said. She said she received the case after Judge Mark Kravitz ​“could no longer remain on the case.”

That seemed to satisfy Torre, who moved on to a line of questioning regarding attorney Rosen. She asked the judge to disclose ​“whether you have a relationship with David Rosen … meaning whether he’s been a guest at your home, whether he’s been a guest at your parties.

“Secondly, given what I have now discerned to be a relationship to the point where Mr. Rosen appears to be a go-to person for your Honor on pro bono assignments, despite the rules requiring that judges remove themselves from that process, I’m looking at — ”

The judge interrupted to ask what rules Torre was referring to.

“I’m concerned that your relationship with Mr. Rosen would impede your ability to rule adversely to him,” Torre said.

“There is nothing before me on that,” Arterton responded, meaning she hadn’t received a motion from Torre about this matter.

“There is going to be,” Torre responded. She asked Arterton to answer the question of whether she had discussed the Ricci case with Rosen.

As a Supreme Court case, Ricci has received considerable publicity, Arterton said. ​“It would be hard for me to say that I have not acknowledged the existence of the Ricci case before the Supreme Court. So when you say discuss it, I don’t know what you mean.”

Rosen has not been a guest in her home, nor does she have a social relationship with him, Arterton said. She acknowledged that Rosen is a ​“go-to person in some sense” since he has a fellowship at his practice for young attorneys who do pro bono work.

Arterton said she would address the matter further if Torre put a motion in writing. ​“To other matters,” the judge began.

But Torre wasn’t through. ​“I have other questions,” she said.

“Do you know, the process of interrogation is a bit odd, I will tell you, Ms. Torre,” Arterton said. ​“I did some research to understand what right it was that you would have to interrogate a judge.”

“I’m not — ” Torre started.

“And I do think it is highly irregular,” Arterton said. But, since she wanted to understand Torre’s concerns, Arterton said, she allowed the attorney to continue.

Torre countered that Arterton was turning a discussion into an interrogation by avoiding the questions. She said she asked only for the disclosure of certain facts, ​“and instead of just making the requested disclosures, with all due respect your Honor, you are engaging me.”

Arterton again suggested the questions would be better dealt with in writing, ​“because I’m trying to be helpful to you, only to have you turn it around saying, aha! You are transmuting it.”

Torre then brought up a 2006 conference on the Ricci case, at which Torre and the judge discussed the fact that Arterton’s former law firm had represented Frank Ricci when he sued the city in the 1990s. ​“Now the court didn’t consider me to be interrogating it then,” Torre said.

In addition to representing Ricci, Arterton’s firm, Garrison and Arterton, also served as counsel for the Firebirds at one point, Torre said. The Firebirds are headed by Gary Tinney, one of the several black firefighters who had sought to intervene on the Ricci case.

“Judge, my clients have a serious comfort problem here and you seem to be getting angry with me for not just filing a motion to recuse you,” Torre said.

Arterton asked if the Firebirds had made any filings in the Ricci case under their own name. ​“This matter I would like to look into,” she said. The judge said she didn’t know the Firebirds were involved.

“Is there anything else?” she asked.

“One thing, but I have the feeling it’s going to get you upset again,” Torre said. She said she had concerns about public speeches the judge has given. She advised the judge to just answer her questions without a lot of ​“back-and-forth.”

Torre asked the judge about a recent address at UConn on the topic of racism and race discrimination. She asked the judge to identify a colleague who had given her a letter from a juror, which she read from in her speech. The judge declined to state a name, without consulting with the colleague first.

Saying it would be her last question, Torre mentioned two phone calls she had received from callers stating that Arterton’s husband was a polling consultant who had worked for John DeStefano.

The judge said that was untrue.

Then Torre brought up the fact that Arterton had personally attended the Ricci oral arguments before the U.S. Supreme Court.

Arterton said it was the first time a case of hers had been heard by the Supreme Court.

Torre suggested it was highly unusual for a judge to attend oral arguments that way. ​“When that happened, I was startled by it and unnerved by it, and so were my clients,” Torre said. Her research indicates that no other judge has done that, she said.

Torre then quizzed the judge on her whereabouts on the day before the Supreme Court oral arguments in April 2009. Hadn’t she in fact been at a conference in Chicago on ​“how to read and predict the winner of Supreme Court cases?”

Arterton said she had been at a conference the day before, one that covered a variety of topics. It was not related to her attendance of the oral arguments, she said.

Finally, the judge said she would not issue a ruling on any motions before her, including Briscoe’s motion to intervene, ​“until I make a determination on whether or not it is appropriate for me to remain the judge on this case.”

But Torre still wasn’t done. She returned to the question of a relationship between Rosen and Arterton.

Arterton said she hadn’t discussed Ricci with Rosen.

Torre said that was ​“not specific enough to put me at ease.”

“Well, Ms. Torre, I bet little would put you at ease,” Arterton said. She concluded the conference with a promise to look into any potential conflicts arising from her firm’s representation of the Firebirds.

The following day, Jan. 21, attorneys for the city submitted to the Ricci docket an excerpt from a 2006 conference between Arterton, Torre, and the city. It records a conversation about potential conflicts of interest on the Ricci case, during which Torre brought up the fact that Arterton’s firm had represented Ricci and the Firebirds. Arterton asked if the Firebirds were defendants in the case.

No, said Torre. ​“I just thought I was duty-bound to flag the issue for you.”

At a follow-up conference on Jan. 27, Torre conceded that the Firebirds issue is not a basis for bias. But it’s an ​“appearance issue” that raises the possibility of ​“divided sympathy,” she said.

Torre elaborated on her questions about a relationship between the judge and attorney Rosen. Torre said her suspicion came from a series of emails she exchanged with Rosen in the summer of 2009, when the Ricci case was before the Supreme Court. Rosen asked her a ​“very pointed series of questions” about the case, Torre said.

“I became a little suspicious about what he was up to,” she said. Rosen told Torre his interest was ​“largely academic,” she said. ​“I’m not anybody’s attorney,” she said he told her.

“I didn’t credit that,” Torre said. She wrote back ​“a very strongly worded email.” It was a ​“very hostile exchange,” Torre said.

Rosen also wrote an editorial in the Courant about the Ricci case, Torre said. He displayed an ​“obsessive interest” and an ​“obsessive reaction to the Supreme Court decision,” she said.

Rosen’s alleged behavior provides the ​“factual backdrop” for her questioning of the judge on Jan. 20, Torre said.

Given his interest in the case, it ​“seems like David Rosen would have sought to speak with you,” Torre said to Judge Arterton.

Arterton replied that she has never spoken about the substance of the Ricci case to anyone.

Torre then raised the question of the conference that Arterton attended before the Supreme Court’s oral arguments. Torre said she had looked it up, and the judge had attended the seminar Torre had described.

She and the judge went back and forth over which of two conference Arterton had attended. Was it on the 19th through the 20th of April? Or just on the 21st?

“You are trying to characterize this as a three-day affair, when they were completely different,” Torre charged.

Judge Arterton finally said she would address the various issues Torre raised at a Feb. 4 conference, including the matter of the Firebirds.

Reached by phone, Torre declined to comment on her efforts to have Judge Arterton recuse herself.

City Corporation Counsel Victor Bolden also declined to speak on the matter.

Attorney Rosen said only, ​“It’s nothing worth commenting on.”

Past stories on fire department promotions and the Ricci case:

• ​“Tinney Intervenors” Step Down In Ricci Case
• Ricci Victors Seek Damages
• After 6‑Year Battle, Firefighters Get Badges
• Ricci Case’s ​“Tinney Intervenors” Try Again
• 10 More Firefighters Promoted
• Judge Blocks Black Firefighters’ Move
• Board Promotes 14 Firefighters
• Judge Orders Firefighter Promotions
• Black Firefighters Seek To Halt Promotions
• Promotions Pitched In Ricci Case
• Ricci​’s Back In Court
• After Ricci Ruling, Black Firefighter Sues City
• Ricci Takes The Stand
• In D.C., Two Latino Views On Sotomayor
• Dems Swing Back On Ricci
• ConnectiCOSH Kibosh
• Sotomayor: I Didn’t ​“Hide” Ricci Case
• Is Ricci Being Smeared?
• Sotomayor Speaks On Ricci
• Ricci Takes Center Stage
• Watley: I’d Have Promoted Ricci
• Firebirds, NAACP: Ricci Won’t Stop Us
• ​“If You Work Hard You Can Succeed In America”
• Was He The Culprit?
• Supreme Court Overturns City On Ricci
• On Page 25, A Hint
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court