Silverman v. Browning, Civ. No. B-259.

• Decision Date: 14 December 1972
• Docket Number: Civ. No. B-259.
• Citation: 359 F. Supp. 173
• Parties: Jerome SILVERMAN, as Administrator of the Estate of Harold Nathan and Adele Nathan, Plaintiffs, v. Louis D. BROWNING et al., Defendants.
• Court: U.S. District Court — District of Connecticut

359 F. Supp. 173

Jerome SILVERMAN, as Administrator of the Estate of Harold Nathan and Adele Nathan, Plaintiffs, v. Louis D. BROWNING et al., Defendants.

Civ. No. B-259.

United States District Court, D. Connecticut.

December 14, 1972.

Alfred S. Julien, New York City, for plaintiffs.

Dion W. Moore, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., for Louis D. Browning.

Frederick U. Conard, Jr., Shipman & Goodwin, Hartford, Conn., for Conn. Bar Assoc.

Arnold J. Bai, Goldstein & Peck, Bridgeport, Conn., for John J. Cloonan.

Barney Lapp, Asst. Atty. Gen., Hartford, Conn., for Hon. John P. Ryan and Judge Otto La Macchia.

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

MEMORANDUM OF DECISION

CLARIE, District Judge.

This civil rights action has been brought pursuant to 42 U.S.C. § 1983. The plaintiffs are Jerome Silverman, a New York State resident, who is suing as Administrator of the Estate of Harold Nathan, and Adele Nathan, the decedent's wife, who is a Connecticut resident. The Judges of the Superior Court of Fairfield County are named as defendants in this action, as well as those defendants named in the two state court civil actions, No. 15,983 and No. 15,991, which are still pending in the Superior Court of Fairfield County. The plaintiffs allege that the Connecticut procedure for admission pro hac vice of attorneys not regularly admitted as members of the Connecticut Bar violates the first, sixth, and fourteenth amendments to the United States Constitution. Jurisdiction is grounded upon 28 U.S.C. § 1343(3) and, because injunctive relief has been requested, a three judge panel has been convened pursuant to 28 U.S.C. §§ 2281 and 2283. A brief recitation of the history of the case is essential to a full understanding of its present posture.

On May 9, 1968, the plaintiffs engaged Attorney Alfred S. Julien, a New York medical malpractice specialist, as trial counsel to prosecute in the Connecticut state courts a claim for malpractice and negligence alleged to have been committed upon the plaintiff's decedent on November 7, 1967. Since Attorney Julien was not a member of the Connecticut Bar, he retained Connecticut counsel to prepare all of the papers and pleadings. It was intended that Attorney Julien would conduct depositions and the trial with local Connecticut counsel present. In October of 1968, a motion was filed in Superior Court by Connecticut counsel, requesting that Attorney Julien be permitted to take the deposition of one of the defendants in the case. This motion was granted.

However, in May of 1969, an order was issued by the Superior Court permanently enjoining Julien from "taking, participating in, assisting in or aiding and assisting other counsel at the taking of the depositions." In November of 1969, Julien was denied permission to try the state court malpractice and negligence actions.

In response to this denial, the plaintiffs sought relief in this Court, alleging a violation of their constitutional rights to counsel and to equal protection under the law. The District Court Judge held in a memorandum filed April 29, 1971, that there existed at that time an "inconsistent nonsystem" of admitting attorneys to practice pro hac vice, wherein admission was dependent upon the absence of objection from opposing counsel and the subjectivity of individual Superior Court Judges. While the Court found that a denial of equal protection existed under the non-rule, the Court abstained, stating in part:

"Both justice and comity for the state court system require that the state be afforded the opportunity to consider and establish an objective rule or benchmark in the Practice Act which would clearly set forth the rights of attorneys from other jurisdictions to practice pro hac vice in Connecticut's courts."

In response to this Court's decision, Rule 15A of the Connecticut Practice Act was promulgated and adopted by the Rules Committee¹ of the Connecticut Superior Court, effective September 1, 1971. That rule 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 and 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."

The defendants then moved to dismiss the plaintiffs' action and to terminate this Court's jurisdiction. After a hearing, the Court denied the motion and directed that the plaintiffs proceed with all reasonable speed to petition the State Superior Court for the admission of Alfred S. Julien as trial counsel pro hac vice under the new Rule 15A. Pursuant to that order, a petition was accordingly filed. The petition was denied on May 5, 1972, and no appeal was taken from that ruling. The transcript of the hearing proceedings indicates that counsel for the plaintiffs and opposing counsel assumed that the word "may" in the last sentence of the rule was intended to be exclusive rather than illustrative; and that "good cause" required either the showing of a long-standing attorney-client relationship or the unavailability of Connecticut counsel. Failing to consider the precise meaning of the third sentence of Rule 15A which provides that "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," the Court focused only upon the justifications for, and applicability of, these two criteria.

There is no indication in the record that either counsel or the Court considered that the existence of a long-standing attorney-client relationship was merely one criterion which might affect the personal welfare of the client, and that the unavailability of competent local counsel was simply one circumstance affecting a client's welfare, financial or otherwise. Assuming, arguendo, that this were found to be true, it is doubtful that a constitutional issue would remain. In any event, a United States Court is not the proper forum in which to determine initially whether there exists "good cause," within the meaning of a recently promulgated rule which may well be susceptible to a constitutionally acceptable construction in the State courts.

This Court is not unmindful of the delay, expense, and inconvenience which abstention often entails. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 425, 84 S.Ct. 461, 11 L.Ed.2d 440 (1963); 1 Barron & Holtzoff (Wright ed.), § 64, pp. 343-344; Wright, Law of Federal Courts, § 52, p. 198. But neither is it unaware that nothing could be more irksome to the State of Connecticut and destructive of harmonious federal-state relations than a premature constitutional decision in such a sensitive area of the law. Ascertainment of whether there exist special circumstances which warrant invocation of the Abstention Doctrine must be made on a case by case basis, Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1963), bearing in mind that no principle of "our federalism" has found clearer or more consistent expression than that which dictates

". . . that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them." Harrison v. N. A. A. C. P., 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959).

Until such an opportunity has been afforded and the law's actual, as opposed to theoretical, impact upon the litigants is known, Public Utilities Comm'n of California v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 2 L.Ed.2d 470 (1957), abstention is required. Reetz v. Bozanich, 397 U.S. 82, 85-87, 90 S.Ct. 788, 25 L.Ed.2d 68 (1969); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1970); Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

The fact that the plaintiffs have failed to meet the requirements of § 604 of the Connecticut Practice Book (1970 Supplement) which requires that notice of appeal be filed within twenty (20) days of a judgment is not critical, for § 762 of the Practice Book further provides,

"(1) The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.

"(2) In the interest of expediting decision, or for other good cause shown, the supreme court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion."

This section provides a direct and uncomplicated approach through which it may be promptly determined whether an authoritative state...