Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Appellate Court

Supreme Court of Connecticut

April 5, 2016

JOSEPHINE SMALLS MILLER
v.
APPELLATE COURT

Argued November 13, 2015

Josephine Smalls Miller, self-represented, the plaintiff in error.

Alayna M. Stone, assistant attorney general, with whom were Jane R. Rosenberg, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the defendant in error.

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

OPINION

PALMER, J.

This case is before us on a writ of error brought by the plaintiff in error, Josephine Smalls Miller, who claims that the Appellate Court abused its discretion in suspending her from the practice of law before that court for a period of six months, in addition to imposing other sanctions, due to her failure to comply with Appellate Court rules and deadlines, and for filing a frivolous appeal. We disagree and, accordingly, dismiss the writ of error.

The record reveals the following facts and procedural history. Miller is an attorney licensed to practice law in the state of Connecticut. On November 3, 2014, the Appellate Court issued an order directing her to appear before an en banc panel of that court and to show cause ‘‘why she should not be sanctioned . . . for her failure [as appellate counsel] to meet deadlines and to comply with the rules of appellate procedure in [Addo v. Rat-tray, Docket No.] AC 36837, [in which] she . . . failed to timely file the appellant’s brief and appendix in compliance with the appellate rules; for her failure [as appellate counsel] to meet deadlines and to comply with the rules of appellate procedure and [court] orders . . . in Willis v. Community Health Services, [Docket No.] AC 36955, and Cimmino v. Marcoccia, [Docket No.] AC 35944, and for her presentation of a frivolous appeal . . . [on behalf of the plaintiff] in Coble v. [Board of Education, Docket No.] AC 36677.’’ The order further stated that ‘‘[t]he sanctions being considered by the Appellate Court include a prohibition against appearing in the Appellate Court or filing any papers in the Appellate Court for a period of time, the imposition of a fine pursuant to General Statutes § 51-84, [1] and costs and payment of expenses, including attorney’s fees, to the opposing part[ies].’’ (Footnote added.) The Appellate Court also ordered opposing counsel in three of the aforementioned cases to appear at the hearing and to present argument on the following then pending motions: (1) the defendant’s motion for attorney’s fees in Coble; (2) the plaintiff’s motion to open the dismissal of the appeal in Willis; and (3) the plaintiff’s motion to set aside rule nisi No. 142267 in Cimmino.

On December 3, 2014, the Appellate Court conducted a hearing at which Miller presented oral argument as to why she believed sanctions in the aforementioned matters were unwarranted. Miller also submitted a written memorandum of law in support of her position.

With respect to the claim that she had failed to properly file the appellant’s brief and appendix in Addo, Miller argued that she did, in fact, file those materials on two separate dates, September 15, 2014, and October 4, 2014. Miller asserted that someone in the Appellate Clerk’s Office must have tampered with the Judicial Branch website (website) to make it appear that she had not filed them. In her memorandum of law, Miller accused the Appellate Clerk’s Office of ‘‘serious misconduct, ’’ stating that, ‘‘[o]bviously, someone has deliberately manipulated [the] electronic website information in order to justify the claim that no filing has been made by [her].’’

In response to Miller’s assertions, one of the judges of the Appellate Court explained that the issue was not that Miller had not filed the brief and appendix but, rather, that she had failed to file the certifications that must accompany them pursuant to Practice Book § 67-2 (g), [2] (i), [3] and (j), [4] and, as a consequence, the materials were rejected by the Appellate Clerk’s Office. Miller responded that she was not aware that she had not filed the required certifications until early November, 2014, around the time of the order to show cause, and that she subsequently filed the materials on November 10, 2014. The record reveals, however, that, by letter dated September 22, 2014, the Appellate Clerk’s Office informed Miller that the brief and appendix she had filed on September 15, 2014, ‘‘fail[ed] to comply with the requirements of . . . [§] 67-2 . . . . The electronic submission and the paper filings must be certified [in accordance with that rule of practice] . . . . Please resubmit the electronic version of the brief and appendix containing the required certification. Please submit proper certifications for the printed brief and appendix and please also submit the electronic confirmation receipt for the refiled electronic version.’’ Miller subsequently received a second letter, entitled ‘‘SECOND NOTICE, ’’ dated October 10, 2014, stating that the brief and appendix still did not comply with the requirements of § 67-2 and, therefore, that they would have to be refiled. As in the first letter, the second letter set forth in detail what Miller needed to do to comply with § 67-2. The letter concluded: ‘‘Please immediately resubmit the electronic version of the brief and appendix containing the required certifications for the uploaded brief and appendix. Please immediately submit all of the proper certifications listed [in the second letter] for the printed brief and appendix. Please also submit the electronic confirmation receipt for the refiled electronic version.’’ As of the date of the show cause hearing, Miller had not filed the required certifications and confirmation in Addo.

With respect to the claim that she had failed to timely file the brief and appendix in Cimmino, Miller argued that she had not filed those materials because she did not discover until the week that they were due that the trial transcript, which had been delivered to her more than one year before the show cause hearing, was incomplete, and, according to Miller, she could not complete the brief without the missing transcript pages. The record reveals that, prior to the issuance of the order to show cause, Miller had been granted two extensions of time to file the appendix and brief. Miller was granted a four month extension on September 24, 2013, followed by a six month extension on December 16, 2013, with a due date for the brief and appendix of July 1, 2014. Six weeks after that date, on August 19, 2014, Miller requested a third extension, which the Appellate Court denied. On August 26, 2014, the Appellate Court issued an order nisi to Miller advising her that the appeal in Cimmino would be dismissed if the brief and appendix were not filed by September 9, 2014. The record indicates that, at the time of the December 3, 2014 show cause hearing, those materials still had not been filed.

Miller also presented argument in support of her motion in Willis to open the dismissal of that appeal. The Appellate Court dismissed the appeal after Miller failed to respond to a July 31, 2014 order nisi informing her that the appeal would be dismissed if, by August 22, 2014, she did not file a certificate indicating the estimated date of delivery of the transcript pursuant to Practice Book § 63-8 (b). Miller, a solo practitioner, explained that she was out of the country when the order was issued and that the appeal was dismissed before she returned. Miller further explained that the transcript in question had been filed with the Appellate Court on February 24, 2014, in connection with an earlier appeal in the case, which the Appellate Court had dismissed for lack of a final judgment. Miller explained that, after obtaining a final judgment, she refiled the appeal without realizing that she had to refile the transcript and certification. Miller argued that the mere failure to file those documents should not serve as a ground for imposing sanctions or for the dismissal of the appeal. In response, opposing counsel argued that, if Miller’s only misstep in Willis had been a failure to file the transcript and corresponding certification, then she would agree that a dismissal would be too severe a sanction. Opposing counsel argued, however, that there were many other examples of Miller’s failure to diligently prosecute the appeal, including Miller’s failure to appear at a previously scheduled hearing and her act of falsely certifying that certain documents had been sent to opposing counsel. When a judge of the Appellate Court asked Miller, at the show cause hearing, whether, prior to leaving the country, she had made arrangements for another attorney to cover her practice, Miller responded that she had not done so because she did not believe that there was any reason to make such arrangements. When asked what assurance she could provide the court that such lapses would not occur in the future, Miller stated that, because of her limited resources as a solo practitioner, she could assure the court only that she would try to find someone to cover her practice on a pro bono basis if she were to travel again for an extended period of time. Miller also admonished the court that, ‘‘[r]ather than being sanctioned, [she] should be commended’’ for her work because, according to Miller, all of her appellate work is performed on a pro bono basis. Miller further indicated that the Appellate Court’s treatment of her appeared to be racially motivated and reminded her of how she was treated in the late 1970s as a court employee in Georgia.

Finally, the Appellate Court considered the defendant’s motion for attorney’s fees in Coble as well as Miller’s argument that sanctions were unwarranted in that case because the appeal was not frivolous. The record reveals that the action in Coble was originally brought in May, 2009. In July, 2010, the trial court rendered a judgment of nonsuit on the basis of the plaintiff’s failure to, inter alia, comply with the defendant’s request to revise. See Practice Book § 10-37. Miller, on behalf of the plaintiff, thereafter filed a motion to open the judgment pursuant to General Statutes § 52-212 (a), which was denied. That ruling was appealed to the Appellate Court, which determined that the trial court did not abuse its discretion in denying the motion to open the judgment and, accordingly, affirmed the trial court’s judgment.[5]

In 2013, Miller refiled the action in Coble on behalf of the plaintiff in that case pursuant to the accidental failure of suit statute, General Statutes § 52-592. Thereafter, the defendant filed a motion for summary judgment. In a deposition of Miller taken in connection with that motion, she stated that the original action had failed because, as a solo practitioner, she had no one to teach her the ‘‘ins and outs’’ of Connecticut practice, and, as a result, she was ‘‘ignorant’’ of the rules of practice. Miller ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.