Argued
December 19, 2018
Procedural
History
Writ of
error from orders of the Appellate Court suspending the
plaintiff in error from the practice of law before the
Appellate Court for a period of six months and also
precluding the plaintiff in error 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, brought to this court. Writ of
error dismissed.
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.
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 prohibited her
from engaging in certain conduct. In addition, Miller claimed
that the 2014 order was the result of the Appellate
Court's selective enforcement of the rules of attorney
discipline, and argued that both orders were the result of
the court's 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 Court's order of
February 15, 2018, clarifying its order of December 9, 2014,
violated [Miller's] constitutional right to due
process?'' We conclude that the 2018 order did not
violate the ex post facto clause and that Miller's 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 Miller's
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 court's
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 directing her to appear
before an en banc panel of that court to show cause why she
should not be sanctioned.[2] Id., 761. After the show cause
hearing, 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]. . . . Miller's 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]
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. 761, 779-80. This court rejected
these claims. Id., 761. With respect to the claim
that the referral to the Chief Disciplinary 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 Miller's
conduct before the Appellate Court was part of a larger
pattern of irresponsibility in [her] handling of her
professional obligations.'' Id., 780. This
court further concluded that the Appellate Court had acted
within its discretion. Id., 780-81. Accordingly,
this court dismissed the writ of error. See id.,
781.
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 Court's referral, it came to the attention
of the Chief Disciplinary Counsel that one of Miller's
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
transcripts, documents and orders, and drafting of the
appellate brief.'' (Emphasis added; internal
quotation marks omitted.) In addition, the retainer agreement
provided that another attorney, James Hardy, would argue
Williams' case before the Appellate Court. At the time
that the Chief Disciplinary Counsel notified the Chief Clerk
of the Supreme and Appellate Courts, she did not provide a
copy of her letter to Miller.
In
response to the letter from the Chief Disciplinary Counsel,
on February 15, 2018, without prior notice to Miller or an
opportunity to be heard on the matter, the Appellate Court
issued the 2018 order, which clarified its earlier order but
imposed no additional sanctions on Miller. The 2018 order
provides in relevant part: ‘‘The Appellate Court
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 . . .
.''
Miller
then filed the present writ of error, seeking review of both
the 2014 order and the 2018 order issued by the Appellate
Court. In her brief to this court, Miller argued that (1) the
2018 order constituted an unconstitutional ex post facto law
because it retroactively prohibited conduct that was not
addressed by the 2014 order, (2) the Appellate Court engaged
in the selective enforcement of attorney disciplinary rules
when it issued the 2014 order, and (3) the Appellate Court
engaged in racially disparate and retaliatory treatment of
Miller when it issued both the 2014 order and the 2018 order.
After
oral argument, this court, sua sponte, ordered the parties to
submit supplemental briefs on the following issue:
‘‘Whether the Appellate Court's [2018 order]
clarifying its [2014 order] violated [Miller's]
constitutional right to due process?'' In her
supplement brief, Miller contended that the 2018 order
violated due process because it retroactively prohibited her
from engaging in conduct that was outside the scope of the
2014 order, and because she was not provided with any notice
or opportunity to be heard before the Appellate Court issued
the 2018 order. Miller further contended that the 2018 order
‘‘resulted in the addition of a fourth count to
the presentment that was already pending before the Superior
Court in Office of Chief Disciplinary Counsel v.
Miller, [Superior Court, judicial district of Danbury,
Docket No. CV-17-6022075-S]. In fact, the presentment judge
proceeded, after trial, to issue a one year suspension on
this count.''
In its
supplemental brief, the Appellate Court contended that, to
the contrary, the 2018 order did not violate due process
because it merely reiterated what was already clearly
apparent in the 2014 order, namely, that Miller was barred
from representing clients in connection with appeals to the
Appellate Court. In addition, the Appellate Court contended
that there was no violation of due process because the 2018
order ‘‘imposed no new or additional sanctions .
. . .'' Specifically, the Appellate Court contended,
the order ‘‘did not change the length of the
suspension [from practice before the Appellate Court] or
alter the requirements for the personal affidavit that must
accompany the motion for reinstatement.'' We agree
with the Appellate Court that the 2018 order did not violate
Miller's right to due process because that order has not
been improperly applied to any conduct that was also not
clearly within the scope of the 2014 order. Having previously
upheld the validity of the 2014 order in Miller v.
Appellate Court, supra, 320 Conn. 781, this court sees
no reason to revisit its earlier decision, except as it may
bear on the resolution of the present writ of error. We also
find the balance of Miller's other claims as to the 2018
order to be without merit.
We
first address the claims that Miller raised in her initial
brief to this court. With respect to her argument that the
2018 order was an unconstitutional ex post facto law because
it retroactively expanded the scope of the 2014 order, we
reject this claim. ‘‘The United States Supreme
Court has observed [that], ‘[a]s the text of the [ex
post facto] [c]lause makes clear, it is a limitation upon the
powers of the [l]egislature, and does not of its own force
apply to the [j]udicial [b]ranch of government.' . . .
Nevertheless, ‘limitations on ex post facto judicial
decisionmaking are inherent in the notion of due
process.' '' (Citation omitted.) Washington
v. Commissioner of Correction, 287 Conn. 792, 805-806,
950 A.2d 1220 (2008), quoting Rogers v. Tennessee,
532 U.S. 451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).
Accordingly, Miller's claims as to the constitutionality
of the 2018 order as retroactively expanding the scope of the
2014 order are more properly framed as possibly implicating
her right to due process, rather than her right to be free
from ex post facto laws.
With
respect to Miller's claims that the Appellate Court
engaged in the selective enforcement of the rules of attorney
discipline and in racially disparate and retaliatory
treatment when it issued both the 2014 order and the 2018
order, we conclude that this court is not the appropriate
forum in which to raise these fact bound claims in the first
instance. It is well established that appellate courts do not
decide pure issues of fact or try, or retry, cases on appeal.
See Lapointe v. Commissioner of Correction, 316
Conn. 225, 310, 112 A.3d 1 (2015); see also Practice Book
§ 72-1 (a) (‘‘[w]rits of error for errors
in matters of law only may be brought from a final
judgment . . . to the Supreme Court'' [emphasis
added]).[4]
Having
rejected these claims, we next address Miller's claim in
her supplemental brief that the 2018 order violated her
constitutional right to due process because the 2018 order
retroactively expanded the scope of the 2014
order.[5] We begin with the standard of review.
‘‘Because a license to practice law is a vested
property interest, an attorney subject to discipline is
entitled to due process of law.'' (Internal quotation
marks omitted.) Lewis v. Statewide Grievance
Committee, 235 Conn. 693, 705, 669 A.2d 1202 (1996); see
also Statewide Grievance Committee v. Botwick, 226
Conn. 299, 306, 627 A.2d 901 (1993) (‘‘[a]
license to practice law is a property interest that cannot be
suspended without due process''). ‘‘It is
well settled that, [w]hether [a party] was deprived of his
[or her] due process rights is a question of law, to which we
grant plenary review.'' (Internal quotation marks
omitted.) Commissioner of Environmental ...