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Cimmino v. Marcoccia

Supreme Court of Connecticut

July 30, 2019

ANDREW CIMMINO
v.
MARIA MARCOCCIA ET AL.

          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 ...


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