Argued
December 19, 2018
Page 1014
Josephine Smalls Miller, self-represented, the plaintiff in
error.
Alayna
M. Stone, assistant attorney general, with whom, on the
brief, was George Jepsen, former attorney general, for the
defendant in error.
Robinson,
C. J., and Palmer, McDonald, Kahn and Blawie,
Js.[*]
OPINION
BLAWIE,
J.
Page 1015
[332
Conn. 512] On December 9, 2014, after conducting an en banc
hearing on an order to show cause, the defendant in error,
the Appellate Court, issued an order suspending the plaintiff
in error, Josephine Smalls Miller, "from practice before
[the Appellate Court] for a period of six months" and
barring her from representing "any client before [the
Appellate Court] until she files a motion for reinstatement
and that motion has been granted" (2014 order). On
October 4, 2017, the Chief Disciplinary Counsel sent a letter
to the Chief Clerk of the Supreme and Appellate Courts
indicating that Miller had been retained to represent a
client in an appeal before the Appellate Court. In response,
on February 15, 2018, the Appellate Court issued an
additional order, stating that it "hereby clarifies that
[the 2014 order] precludes ... Miller from providing legal
services of any kind in connection with any ... Appellate
Court matter until she files a motion for reinstatement and
that motion has been granted" (2018 order). Miller then
filed the present writ of error, claiming that the 2018 order
was an unconstitutional ex post facto law in violation of the
United States constitution[1] because it retroactively [332 Conn.
513] prohibited her from engaging in certain conduct. In
addition, Miller claimed that the 2014 order was the result
of the Appellate Courts selective enforcement of the rules
of attorney discipline, and argued that both orders were the
result of the courts disparate and retaliatory treatment of
minority attorneys who pursue racial discrimination claims on
behalf of their clients. After oral argument before this
court, we, sua sponte, ordered the parties to submit
supplemental briefs on the following issue: "Whether the
Appellate Courts order of February 15, 2018, clarifying its
order of December 9, 2014, violated [Millers] constitutional
right to due process?" We conclude that the 2018 order
did not violate the ex post facto clause and that Millers
claims of selective enforcement and discriminatory and
retaliatory treatment are not reviewable by this court. We
further conclude that the 2018 order did not violate Millers
constitutional due process rights because, as applied, that
order did not prohibit her from engaging in conduct that was
not also prohibited by the 2014 order. Accordingly, we
dismiss the writ of error.
Many of
the underlying facts are set forth in this courts previous
decision in Miller v. Appellate Court, 320 Conn.
759, 761-68, 136 A.3d 1198 (2016). In summary, after Miller,
who is an attorney licensed to practice law in this state,
repeatedly failed to meet certain deadlines and to comply
with the rules of appellate procedure in connection with
three appeals that were pending before the Appellate Court,
and also filed a frivolous appeal in a fourth case, the
Appellate Court issued an order
Page 1016
directing her to appear before an en banc panel of that court
to show cause why she should not be sanctioned.[2] Id.,
at 761, 136 A.3d 1198. After the show cause hearing, [332
Conn. 514] the Appellate Court issued the 2014 order, finding
that Miller "has exhibited a persistent pattern of
irresponsibility in handling her professional obligations
before [the Appellate Court]. ... Millers conduct has
included the filing of [a] frivolous [appeal] and the failure
to file, or to file in timely and appropriate fashion, all
documents and materials necessary for the perfection and
prosecution of appeals before [the Appellate Court]."
The Appellate Court ordered that Miller be suspended
"from practice before [the Appellate Court] in all cases
... for a period of six months," with the exception of
one appeal then pending. It also barred her from representing
"any client before [the Appellate Court] until she files
a motion for reinstatement and that motion has been
granted." The 2014 order further specified certain
remedial steps for Miller to complete before she would be
eligible to be considered for reinstatement. The Appellate
Court also directed the Chief Disciplinary Counsel to review
these matters and to take further action if
appropriate.[3]
Page 1017
[332
Conn. 515] Miller then filed a writ of error in this court,
claiming that the Appellate Court had abused its discretion
in issuing the 2014 order imposing sanctions on her and
referring her to the Chief Disciplinary Counsel without
indicating the nature of the inquiry to be conducted. See
Miller v. Appellate Court, supra, 320 Conn. at 761,
779-80, 136 A.3d 1198. This court rejected these claims.
Id., at 761, 136 A.3d 1198. With respect to the
claim that the referral to the Chief Disciplinary [332 Conn.
516] Counsel was improper, this court concluded that,
"[a]lthough the order of referral could have been
clearer, we do not understand it to be a request for an
investigation into the specific conduct giving rise to this
writ of error but, rather, a request for a determination of
whether Millers conduct before the Appellate Court was part
of a larger pattern of irresponsibility in [her] handling of
her professional obligations." Id., at 780, 136
A.3d 1198. This court further concluded that the Appellate
Court had acted within its discretion. Id., at
780-81, 136 A.3d 1198. Accordingly, this court dismissed the
writ of error. See id., at 781, 136 A.3d 1198.
It is
also worth noting that, despite the long past expiration of
the six month minimum period of suspension in the 2014 order,
the record reveals that Miller has never filed a motion for
reinstatement. Nor has she ever provided a personal
affidavit, or presented any evidence to the Appellate Court
that she has successfully completed or implemented any of the
remedial practice measures specified in the 2014 order, all
of which remain conditions precedent to any possible
reinstatement to appellate practice.
Following the Appellate Courts referral, it came to the
attention of the Chief Disciplinary Counsel that one of
Millers clients, Jasmine Williams, had filed a grievance
complaint against Miller in 2017, alleging unethical conduct
arising from an appeal to the Appellate Court. On October 4,
2017, the Chief Disciplinary Counsel sent a letter to the
Chief Clerk of the Supreme and Appellate Courts, stating that
"[i]t appears that ... Miller may be in violation of the
[2014 order], which ordered her suspended from practice
before the [A]ppellate [C]ourt in all cases," with the
exception of one. According to that letter, Miller had
entered into a written retainer agreement with Williams on or
about October 1, 2016. By the express terms of that retainer
agreement, Miller agreed to "provide legal services
at the [A]ppellate
[C]ourt level, specifically reviewing of
the relevant trial [332 Conn. 517] transcripts, documents and
orders, and drafting of ...