Mongillo, In re

• Decision Date: 19 July 1983
• Citation: 461 A.2d 1387,190 Conn. 686
• Court: Connecticut Supreme Court
• Parties: In re Frank MONGILLO, Jr.

Page 1387

461 A.2d 1387

190 Conn. 686

In re Frank MONGILLO, Jr.

Supreme Court of Connecticut.

Argued April 5, 1983.

Decided July 19, 1983.

John R. Williams, New Haven, with whom was Frank Mongillo, Jr., New Haven, for appellant (Frank Mongillo, Jr.).

Roger J. Frechette, New Haven, for appellee (State).

Before SPEZIALE, C.J., and PETERS, DALY, CIOFFI and HENNESSY, JJ.

SPEZIALE, Chief Justice.

The issue presented by this appeal is whether the trial court abused its discretion when it fined an attorney who failed to comply with an order of the court of which the attorney did not have either actual or constructive notice.

The record reveals the following facts: The Honorable Frank J. Kinney, Jr., began an assignment as presiding judge for the judicial district of New Haven at geographical area No. 6 on June 30, 1980. During the first week of that assignment the court had difficulty obtaining the punctual attendance of counsel for the call of the calendar at 10 a.m. The court therefore advised those counsel who appeared before it during that week that, following the forthcoming Independence Day recess, if attorneys were going to be late for the call of the calendar they would be required personally to telephone the court. Those who were late and had not telephoned would be fined in accordance with General Statutes § 51-84. ¹

On July 8, 1980, the court called the calendar of jury cases at 10:13 a.m. Among the cases called were State v. James Pesapane and State v. Angelo Pesapane, for which the appellant, Frank J. Mongillo, Jr., was defense counsel. Neither Mongillo nor the defendants were present, but Frank Pesapane, a brother of the defendants, did inform the court that all three would be there shortly. The court ordered the rearrest of the defendants and resumed the calendar call.

At 10:20 a.m. the appellant arrived at court with his clients. The Pesapane cases were recalled, the rearrest orders were vacated, and the cases were placed on the "day-to-day" ready list.

The following dialogue then took place:

"The Court: ... Let me address myself to you, Mr. Mongillo, briefly. As I indicated to you in chambers, you were not present in court at the time of the pretrial or firm jury lists were called, and you had cases on the list; and the notation that the Court made from the list, when the lists were called, was that you were not present; the lists were called at 10:13, and you were not present, though I had been told by somebody else that you would be late. It's the Court's intention to impose a fine of $25.00 under 51-84 of the Statutes. Do you wish to be heard?

"Mr. Mongillo: I wish to be heard on this. Your Honor, my clients were in my office prior to 10:00 this morning. I have never disregarded or had any disrespect for this Court, or any Court in the State.... I had personal problems this morning, which your Honor is well aware of, that necessitated my being late. I was here 20 minutes after 10. Mr. Pesapane came up, and I think the record will show, that he indicated that I would be late; that I would be here momentarily. I was here at 20 minutes after 10. At no time did I delay the court or hinder the court in their conducting of their business, and I disagree with the imposition of this fine; and that I would like a hearing on the matter.

"The Court: Well, this Statute doesn't call for any kind of a hearing. I certainly am willing to give you an opportunity to be heard, as I have, but I think you should appreciate some of the Court's problems, Mr. Mongillo. When I came in here last week, I was having a great deal of difficulty obtaining the attendance of counsel. The attendance of counsel is required unless excused by the Court; unless they notify the Court that they would be late. I am here from 9:00 to 10:00--

"Mr. Mongillo: Your Honor--

"The Court: Let me speak, I will let you be heard again; but I am here from 9:00 to 10:00, and counsel should feel free to call me if they have a problem, as many counsel do. When I call the list at 10:00 or a few minutes after 10:00 and I don't have either clients here, on the first jury list, or I don't have lawyers here that are supposed to be here, I have to take some action to enforce attendance. Last week, I advised counsel, who were in attendance on several days, that although the Court was going to take no action last week, with regard to lateness of counsel appearing in court, that commencing this week, I would take appropriate action. I feel appropriate action to enforce the Court's requirement that you be in attendance here, which you are notified of when you are given the attendance slip, requires your attendance at 10:00. The Practice Book requires your attendance at the call of the dockets. I feel it's a reasonable proposition for the Court to take appropriate action to enforce attendance, and I think a nominal fine, under 51-84, which is not a finding of contempt, gives appropriate action for the Court to take. I appreciate your explanation; you may have thought it was worthwhile; I may have thought it was worthwhile. If you only called me before 10:00 and explained your problems ...."

The appellant further stated to the court that he had not had cases in this court the previous week and, therefore, he had no notice that the court had issued a new attendance order. He also stated for the record that he had been late because his father had suffered a stroke a few days earlier and that, when the nursing help had not arrived that morning, he had gone to help his father get out of bed.

The court repeated that all would have been well if only the appellant had telephoned. It then confirmed the imposition of a twenty-five dollar fine and ordered payment that day. From that judgment, the appellant appealed to the Appellate Session of the Superior Court, which transferred the appeal to this court.

"The inherent power of the judiciary to control admission to the bar, to discipline its members and to prescribe rules for their conduct as officers of the court is not open to doubt. Spring v. Constantino, 168 Conn. 563, 575 n. 7, 362 A.2d 871 [1975]; Lublin v. Brown, 168 Conn. 212, 228, 362 A.2d 769 [1975]; Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652 [1961]." Commission on Special Revenue v. Freedom of Information Commission, 174 Conn. 308, 317-18, 387 A.2d 533 (1978). It is equally clear that the court has the inherent power "to provide for the imposition of reasonable sanctions to compel the observance of its rules." Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954); see Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938, 939 (1983). The judges of the Superior Court exercised their power over both attorneys and rule-making when they adopted Practice Book § 983, which provides: "Counsel who fails to appear on a scheduled date for any hearing or trial or who requests a continuance without cause or in any other way delays a case unnecessarily will be subject to Gen.Stat., § 51-84."

It is undisputed that a rule of the Superior Court required the appellant's attendance at the call of the calendar at 10 a.m. It is also undisputed that he was late. It is therefore not open to question that the Superior Court had the authority to impose a fine against the appellant for his tardiness.

Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. To reduce delay while still maintaining high quality justice, it is essential that we have judicial involvement in managing cases.

Caseflow management places new demands on our already overworked judges because the judge must actively establish and enforce the pace of litigation coming before the court, rather than allowing the parties to do so. Judges must be firm and create the expectation that a...