Dacey v. Connecticut Bar Ass'n

Decision Date06 April 1976
Citation368 A.2d 125,170 Conn. 520
CourtConnecticut Supreme Court

Bernard S. Peck, Bridgeport, with whom were Daniel D. Peck and Richard A. Johnson, Bridgeport, for appellant (defendant).

Sturges N. Laros, Bridgeport, with whom was James G. Englis, Bridgeport, for appellee (plaintiff).


LOISELLE, Associate Justice.

The plaintiff, Norman F. Dacey, published a book entitled 'How to Avoid Probate!' Subsequent to the publishing of this book, the defendant, the Connecticut Bar Association, published a pamphlet entitled 'Understanding Probate! or Don't be Dead-Wrong!' The plaintiff contended that some of the statements in this pamphlet were libelous and he brought an action in libel against the defendant. The jury awarded $60,000 general damages in favor of the plaintiff and the defendant has appealed.

At the outset, the plaintiff has challenged the propriety of this court's determining the appeal. Every justice of this court is a member of the defendant association. The plaintiff's counsel does not claim personal bias on the part of any member of this court but claims that the appearance of impropriety is in issue. Further, the plaintiff suggests that the impartiality of the members of this court has been and will be questioned.

The plaintiff cites General Statutes § 51-39 1 and Canons 1, 2 and 3 of the Code of Judicial Conduct 2 and argues that the special resolution passed by the defendant whereby any judge or justice who may participate in the case is exempt from the payment of any judgment rendered against the defendant is, in fact, an admission by the defendant that the members of this court have a pecuniary interest in the outcome of this appeal.

A challenge on the basis of disqualification of a judge or justice is not one which can be considered lightly. This state early has taken the view that any judge having an interest in a pending case should disqualify himself from hearing the case. Wood v. Hartford Fire Ins. Co., 13 Conn. 202, 211. See also Nettleton's Appeal, 28 Conn. 268; Cabot Bank; Appeal from Probate, 26 Conn. 7.

In the event that the plaintiff should prevail in this appeal, the defendant has voted that the dues of each justice would be reduced so that none of the justices would contribute to the payment of the judgment. Whether this is done or not, the pecuniary interest of each justice is de minimis and is comparable to the interest of the judge that determines the tax appeal of a litigant against a town where the judge is a taxpayer. We fail to see any conflict concerning the nonfinancial interests. Furthermore, it has been held that membership in a bar association or integrated bar is not a basis for disqualification in a case in which a bar association is a party. Minnesota State Bar Assn. v. Divorce Education Associates, Minn., 219 N.W.2d 920, cert. denied sub nom., Thibodeau v. Minnesota State Bar Assn., 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 297; In re Rhodes, 8 Cir., 370 F.2d 411, cert. denied, 386 U.S. 999, 87 S.Ct. 1321, 18 L.Ed.2d 349. See 46 Am.Jur.2d, Judges, § 121.

During oral argument when the plaintiff's counsel was told that a full court could not be formed from among the total membership of this court and the Superior Court who were not members of the defendant, counsel suggested that this court find the issues for the plaintiff and let the defendant attempt to obtain certiorari from the United States Supreme Court.

Article fifth, § 1, of the state constitution vests the judicial power of the state in the courts. The Supreme Court exercises appellate jurisdiction as defined by law. This judicial responsibility is an attribute of sovereignty. There is a limitation upon the right or duty of judges to disqualify themselves. 'Disqualification must yield to necessity where to disqualify would destroy the only tribunal in which relief could be had and thus preclude determination of the issue. In such case it has been held, consistently, the court must act no matter how disagreeable its task may be.' New Jersey State Bar Assn. v. New Jersey Assn. of Realtor Boards, 118 N.J.Super. 203, 209, 287 A.2d 14, 18. See Evans v. Gore, 253 U.S. 245, 247-48, 40 S.Ct. 550, 64 L.Ed. 887; Moulton v. Bryd, 224 Ala. 403, 405, 140 So. 384; Federal Construction Co. v. Curd, 179 Cal. 489, 493-94, 177 P. 469; Wheeler v. Board of Trustees, 200 Ga. 323, 326-28, 37 S.E.2d 322; Long v. Watts, 183 N.C. 99, 102, 110 S.E. 765; First American Bank & Trust Co. v. Ellwein, 221 N.W.2d 509, 515-16 (N.D.), cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301; Alamo Title Co. v. San Antonio Bar Assn., 360 S.W.2d 814, 817 (Tex.Civ.App.) (application for writ of error refused, no reversible error). See also 46 Am.Jur.2d, Judges, § 89.

The defendant is entitled by law to appeal to this court. General Statutes § 52-263. There is no other appellate tribunal to which, under the law, the defendant can appeal. It was sued and a verdict was rendered against it. It brought the appeal in due course. Both parties have orally argued the appeal and both have submitted extensive briefs. In this situation, the only course open to use is to consider the arguments and decide appeal. See Evans v. Gore, supra.

The defendant claims the court erred in certain rulings on evidence, in its refusal to charge as requested, in its charge to the jury and in not setting aside the verdict and rendering judgment notwithstanding the verdict.

The plaintiff's claims of proof include the following: In 1965 the plaintiff, a financial consultant, trustee, writer and lecturer on various estate planning subjects, wrote and published a book entitled 'How to Avoid Probate!' hereinafter referred to as the plaintiff's book. Approximately one million copies of this book have been sold. The plaintiff has written two other books, one prior and one subsequent to the book in question. He has also written numerous newspaper and magazine articles and has lectured on estate planning.

In the plaintiff's book he wrote on page 11: 'Most estate planners recommend joint ownership of the family home but caution against similar holding of other property. Many people have joint checking or savings accounts in banks. It is not uncommon for banks to block such accounts upon the death of one of the coowners. It would be a good idea for the survivor to go to the bank promptly, withdraw the money and transfer it to a new account in his or her name. Ask your bank to write you a letter stating what its policy is in this respect, so you'll be forwarned. In some states, safe deposit boxes of deceased persons can be opened only by a representative of the probate court or a state inheritance tax appraiser. In Illinois, such state appraisers were accused of looting deposit boxes of $40,000 in cash and securities over a period of only a few months. In states having such requirements on safe deposit boxes, it may be desirable for husband and wife to have two boxes. His property is deposited in her box and her property in his box. Under this arrangement when the deceased husband's deposit box is opened, no property belonging to him is to be found-it's all in his wife's box, to which she has ready, unquestioned access.'

After the publication of his book, the plaintiff became aware of the publication of a pamphlet by the defendant entitled 'Understanding Probate! or Don't be Dead-Wrong!' hereinafter referred to as the defendant's pamphlet. On page 11 of the pamphlet it states: 'Mr. Dacey suggests that husband and wife have separate safe deposit boxes and that the husband's valuables be placed in the wife's box and vice versa, presumably to defraud the Internal Revenue Service and the State Tax Department of death taxes on such valuables.' On page 17 of the pamphlet it states 'The worst that could happen to the Dacey believer is a term in jail. Some of Dacey's recommendations regarding joint accounts, safe deposit boxes, and certificates of title which lead to a failure to disclose assets could be fraudulent as to creditors, the state and Uncle Sam.' A retraction was demanded and refused. The plaintiff's book discusses the payment of taxes and he has always advocated the payment of taxes and has not advocated the nonpayment of taxes. There is nothing in the plaintiff's book about the nondisclosure of assets. In 1966, the three members of the committee appointed by the defendant's president to draft the pamphlet were specialists in the field of probate. Three drafts of the pamphlet were submitted to the council of the defendant and it was finally decided to refer specifically to the plaintiff and his book. The president of the defendant, among others, approved the final draft of the pamphlet and a press conference was called at the president's law office to publicize the publication of the defendant's pamphlet. Included in the statement to the press was the president's statement: 'The worst that could happen to a Dacey believer is a term in jail.' Copies were to be sent to the defendant's 3500 members, banks, book publishing companies and anyone who requested one. There were approximately 175 to 200 requests for the defendant's pamphlet, 100 from this state and the remainder from 16 other states.

Subsequent to the publication of the defendant's pamphlet there was an increasing child on the plaintiff's opportunity to lecture, a reduced interest on the part of editors in the material the plaintiff was writing and a decreasing number of persons who requested consultations. Prior to the publication of the defendant's pamphlet the plaintiff would give from 35 to 50 lectures a year. In the year before the trial he gave two lectures. There has been a substantial decrease in the number of requests for articles and his business as a financial consultant diminished to a point that at the time of trial it no longer existed. There is...

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