Silverman v. Browning

Decision Date30 April 1976
Docket NumberCiv. No. B-259.
Citation414 F. Supp. 80
CourtU.S. District Court — District of Connecticut
PartiesJerome SILVERMAN, as Administrator of the Estate of Harold Nathan, and Adele Nathan, Plaintiffs, v. Louis D. BROWNING et al., Defendants.

Alfred S. Julien, New York City, Marshall S. Feingold, Hartford, Conn., for plaintiffs.

Henry J. Lyons, Dion W. Moore, Bridgeport, Conn., for defendant, Louis D. Browning.

Pullman, Comley, Bradley & Reeves, Frederick U. Conard, Jr., Shipman & Goodwin, Hartford, Conn., for Connecticut Bar Association.

Carl R. Ajello, Atty. Gen. and Barney Lapp, Asst. Atty. Gen., Hartford, Conn., for Hon. John J. P. Ryan, Hon. Otto H. La Macchia and all Judges of Superior Court.

Arnold J. Bai, Paul E. Pollock, Goldstein & Peck, Bridgeport, Conn., for defendant, John J. Cloonan.

Before SMITH, Circuit Judge, and CLARIE and NEWMAN, District Judges.

MEMORANDUM OF DECISION

CLARIE, District Judge:

The plaintiff1 seeks a judgment declaring that the state court pro hac vice attorney admission rule, (§ 15A of the Connecticut Practice Book), is unconstitutional and void, because it is in violation of the equal protection clause of the Federal Constitution. He requests injunctive relief against the Connecticut Superior Court Judges requiring one of them to admit the plaintiff's attorney, who is a member in good standing of the New York State Bar, to appear and try two pending malpractice suits in the State Superior Court of Fairfield County, at Stamford.

The defendants have moved to dismiss the action for failure to state a claim upon which relief can be granted and for lack of jurisdiction over the subject matter. Plaintiff brings this action under the civil rights act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3), and also alleges federal question jurisdiction pursuant to 28 U.S.C. § 1331, based upon alleged violations of the fifth, sixth and fourteenth amendments.

Facts

To adequately understand the issues, it is necessary to have a perspective of the background of this litigation. Therefore, the Court will summarily review what has transpired in this case to date. In May 1968, Attorney Alfred S. Julien, a New York medical malpractice specialist, was retained to prosecute two wrongful death actions for alleged malpractice and negligence, against a Stamford, Connecticut, hospital and associated medical personnel, who had attended and furnished professional care to Harold Nathan, the plaintiff's decedent. The original suits were commenced in the Connecticut Superior Court by a local attorney and it was generally understood that Connecticut counsel would continue to assist out-of-state specialist counsel and be present at the trial. In October 1968, then Superior Court Judge Bogdanski (now a Justice of the Connecticut Supreme Court), over defendants' objection, authorized Attorney Julien to take pre-trial depositions of the defendants. At that time, however, Judge Bogdanski alerted counsel to the fact that he doubted the state court would permit Attorney Julien to try the case, but that the question would not be decided until the time of trial.

In May 1969, the defendants in the state suit sought a state court injunction restraining the plaintiff's out-of-state attorney from assisting or aiding other counsel at the taking of the defendants' depositions, until he had complied with the rules of the Connecticut Practice Book and the Connecticut General Statutes relating to the admission of out-of-state attorneys. After a hearing before Judge Tierney, the court granted injunctive relief and entered an order prohibiting Attorney Julien from participating or assisting in the pre-trial preparation of the case or the trial, until he had complied with the rules and statutes pertaining to the admission of out-of-state attorneys. On November 20, 1970, local counsel again moved that Attorney Julien be permitted to conduct the trial and Superior Court Judge La Macchia denied that motion.

In March 1971, the plaintiff initiated this federal action to restrain the state court judges and the Superior Court clerk in Fairfield County from continuing a policy and practice which would prevent the plaintiff from exercising his claimed constitutional rights to a free choice of counsel, by denying him the right to have his retained out-of-state counsel try his case as counsel in charge, with a Connecticut attorney present. At the initial hearing before a single judge, this Court found that no uniform rule existed for the admission of pro hac vice out-of-state counsel. It ruled further that the existing custom and practice was subject to the whim and fancy of the judge who happened to be presiding at the time; and that such an arbitrary "non-system rule" was likely to violate a litigant's right to equal protection under the fourteenth amendment to the Federal Constitution.

This Court held that justice and comity required that the State of Connecticut should be afforded a reasonable opportunity to establish an objective rule or benchmark, to clearly set out the rules governing the admission of out-of-state attorneys to practice pro hac vice in Connecticut courts. Counsel agreed to a temporary stay order, delaying the trial of the state court malpractice actions, until the issue concerning choice of counsel could be resolved. See 359 F.Supp. 173, 174-5.

On June 21, 1971, the State Superior Court judges enacted a new pro hac vice rule, § 15A of the Connecticut Practice Book, which provides as follows:

"An attorney who is in good standing at the bar of another state, the District of Columbia, or the commonwealth of Puerto Rico, may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state; provided, however, that a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a long standing attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client's affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel." (Emphasis added).

Upon the adoption of this new rule, the defendants moved to dismiss the federal action. The plaintiff claimed, however, that the new rule was also unconstitutional, because the showing of "good cause" as required by the rule had no rational connection with the out-of-state attorney's moral fitness or general capacity to practice law and that these were the only permissible criteria laid down in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). This Court denied the defendants' motion to dismiss and directed that the plaintiff proceed to have his state application for admission pro hac vice considered under the newly amended state admission rule.

The plaintiff's counsel renewed his motion for admission of out-of-state counsel and it was again denied after a hearing by the state trial judge pursuant to the new rule. The plaintiff then moved for the convening of a three-judge constitutional court and requested that it declare the pro hac vice rule unconstitutional on its face and as applied to plaintiff's out-of-state counsel, and enjoin its enforcement. After a full hearing, a majority of the three-judge constitutional court voted to abstain from deciding the constitutional questions presented, so that the State Supreme Court might be afforded the first opportunity to determine the proper construction of its own newly amended rule. This Court's instructions did not specify that only the statutory construction issue should be submitted to the State Supreme Court, or restrict the plaintiff from advancing his constitutional claims in that forum. The Court retained jurisdiction of the case pending the appeal, however, not as an appellate review court, but solely as a precaution in case the appeal was dismissed as time-barred, or if the State Supreme Court elected to avoid deciding any constitutional issues which were presented to it. See Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and Government Employees v. Windsor, 353 U.S. 364, 366, 77 S.Ct. 838, 839, 1 L.Ed.2d 894, 896 (1957).

However, the plaintiff did not accept this Court's abstention, but appealed directly to the United States Supreme Court, which affirmed the abstention judgment of the three-judge court. 411 U.S. 941, 93 S.Ct. 1927, 36 L.Ed.2d 406. The case was then presented and argued before the Connecticut Supreme Court, which construed the term "good cause" as set out in the statute, not to enumerate the exclusive reasons for a finding of good cause. However, in a 4-1 decision, the Court did find that the State Superior Court was correct in concluding that the plaintiff's counsel had not assumed his minimal burden of presenting sufficient factual evidence to show "good cause" under the statutory requirements.2 168 Conn. 160, 363 A.2d 22 (1975) and 37 Conn.L.J. (No. 1, July 1, 1975). The one dissenting Justice, Bogdanski, would have ordered a remand of the case to the state trial court for a hearing, so that a proper factual record could be developed, upon which a basis could be...

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  • State v. Reed
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    • Supreme Court of Connecticut
    • 28 Febrero 1978
    ...judge." Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir.), cert. denied, 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533; Silverman v. Browning, 414 F.Supp. 80 (D.Conn.), affirmed, 429 U.S. 876, 97 S.Ct. 228, 50 L.Ed.2d 162. The courts of each state have power and control over the attorneys permitted......
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