Silverman v. St. Joseph's Hospital
| Decision Date | 18 March 1975 |
| Court | Connecticut Supreme Court |
| Parties | Jerome SILVERMAN, Administrator (ESTATE of Harold NATHAN) v. ST. JOSEPH'S HOSPITAL et al. |
Marshall S. Feingold, Hartford, for appellant (plaintiff).
Gregory C. Willis, Bridgeport, for appellee (named defendant).
Dion W. Moore, Bridgeport, for appellee (defendant Louis D. Browning).
Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.
This appeal arose out of proceedings in a malpractice action brought against the pacity was substituted as successor plainnamed defendant and two physicians and returned to the Superior Court in Fairfield County on the first Tuesday of August, 1968. The record discloses that the named plaintiff, Jerome Silverman, the administrator of the estate of Harold Nathan, resigned as administrator in April, 1972, during the pendency of the action, and that Nathan's widow, Adele Nathan, succeeded Silverman as administratrix and in that catiff. Since, however, the record and briefs have all continued to retain the original title of the case, we will conform to that usage.
A preliminary and necessarily lengthy recital of the facts surrounding and giving rise to this belated appeal is essential to place in context the limited issue involved. In October, 1968, the plaintiff applied to the Superior Court for permission to allow Alfred S. Julien, a member of the New York bar and not a member of the bar of this state, to take pretrial depositions of the defendants in preparation for the trial of the malpractice case. Over the objection of the defendants, the court (Bogdanski, J.) granted the application. Subsequently, in May, 1969, in an action brought by the defendants herein as plaintiffs, the court (Tierney, J.) granted an order permanently enjoining Julien from participating in the taking of the depositions. In November, 1970, the plaintiff applied to the Superior Court for permission to allow Julien to try the case. This application was denied by the court (LaMacchia, J.). In March, 1971, the then administrator and Mrs. Nathan commenced an action in the United States District Court for the District of Connecticut seeking a permanent injunction restraining Judge LaMacchia and the other judges of the Superior Court in Fairfield County from continuing a policy or practice which prevented them from engaging the services of Julien as their trial counsel in the state court action. By way of affirmative relief, they also sought an order directing the Superior Court judges to permit Julien to try the cases pro hac vice on behalf of the plaintiff in association with Connecticut counsel and staying proceedings in the Superior Court until Julien received such permission. The defendants moved that the action in the federal court be dismissed. In April, 1971, the District Court (Clarie, J.) denied the defendants' motion to dismiss and found that the plaintiffs had been denied equal protection of the laws but deemed it proper to abstain from intervening and providing a remedy until such time as the state reviewed the matter and had 'the opportunity to consider and establish an objective rule or benchmark in the Practice Act (sic) which would clearly set forth the rights of attorneys from other jurisdictions to practice pro hac vice in Connecticut's Courts.' See Silverman v. Browning, 359 F.Supp. 173, 175 (D.Conn.).
On June 21, 1971, the judges of the Superior Court adopted § 15A of the Practice Book entitled 'Attorneys of Other Jurisdictions Appearing Pro Hac Vice.' 1 On April 13, 1972, the plaintiff, proceeding under the provisions of Practice Book § 15A, moved for Julien's pro hac vice admission to try the case. It is the court's decision on this motion which is the subject of the present appeal.
Prior to the hearing of the plaintiff's motion in the Superior Court, the defendants in the federal court action again moved in that court to dismiss that action claiming that the promulgation of § 15A of the Practice Book rendered it moot. That court (Clarie, J.), on April 19, 1972, denied the motion to dismiss, directed the federal court plaintiffs to proceed with all reasonable speed with the plaintiff administrator's pending motion in the Superior Court for the admission of Julien, directed that the federal court's order staying the action in the Superior Court remain in effect and ordered: 'This court will retain jurisdiction in this suit pending the outcome of the application in the State Court for leave to the plaintiffs (sic) to have Alfred S. Julien appear as trial counsel pro hac vice in their (sic) action' and '(t)his matter may be brought on before this Court for further proceedings on the application of any party on notice to the others.' On May 5, 1972, the Superior Court (Tierney, J.) denied the plaintiff's application for the admission of Julien under the pro hac vice rule, § 15A-the decision with which we are concerned on the present appeal.
Again the plaintiffs in the federal court action moved in that court seeking a final order granting the relief requested in their complaint-an injunction restraining the judges of the Superior Court from continuing a policy or practice which prevented them from having Julien as trial counsel in the Superior Court, an affirmative injunction directing the judges of the Superior Court to permit Julien to try the case, and an order staying the Superior Court action until Julien was admitted. They predicated their claims on the ground that § 15A of the Practice Book, on its face and as applied, was unconstitutional. They contended that the section contravened the due process and equal protection clauses of the federal constitution as well as the first and sixth amendments. Silverman v. Browning, supra.
In December, 1972, a three-judge District Court decided the case, filing three separate opinions. Silverman v. Browning, supra. Judge Clarie in his opinion expressed the view that in denying the application filed pursuant to § 15A of the Practice Book the Superior Court misread the rule, in part, and ignored other pertinent provisions in certain respects. For these reasons and in the interests of federal-state comity, he was of the opinion that the Superior Court's decision should be reviewed by this court. Silverman v. Browning, supra, 175-77. Judge Smith was of the opinion that the action in the federal court should be dismissed for want of a substantial federal question. Silverman v. Browning, supra, 180. Judge Newman was of the opinion that § 15A of the Practice Book contravened the equal protection clause of the federal constitution and was clearly unconstitutional. Silverman v. Browning, supra, 177-80. In view of the fact, however, that one of his colleagues favored abstention and the other dismissal, he concluded (p. 180):
From this decision of the District Court, the plaintiffs in that court took a direct appeal to the United States Supreme Court which, on April 23, 1973, affirmed the decision of the District Court without oral argument or an opinion. Silverman v. Browning, 411 U.S. 941, 93 S.Ct. 1927, 36 L.Ed.2d 406. Then on May 23, 1973, the plaintiff filed the present appeal to this court, claiming error in the May, 1972 judgment of the Superior Court denying the motion to admit Julien pro hac vice to argue this case on the trial.
As this recital of the background of this appeal indicates, the relatively simply issue presented by an appeal from the May, 1972 judgment of the Superior Court has been unnecessarily delayed, clouded and complicated. While it is true as stated by Judge Clarie in his decision of April 29, 1971, that '(t)his suit presents the delicate question of the right of a qualified and licensed out-of-state attorney to practice law in the state courts of Connecticut in a particular case,' adjudication of that question has been delayed and complicated by the successful efforts of the plaintiff to persuade the federal District Court to assume jurisdiction to intervene and issue orders with respect to the conduct of a trial in a trial court of this state in a matter over which the state trial court had original jurisdiction and was exercising that jurisdiction and whose exercise of jurisdiction was, in case of error, subject to rectification by appeal to this court and from this court to the United States Supreme Court. Recognition of the fact that the state trial court had primary jurisdiction to decide the question of Julien's admission is implicit in the April 12, 1972 judgment of the District Court, which directed the plaintiffs to 'proceed with all reasonable speed with an application in the Superior Court action entitled: Jerome Silverman, as Administrator, etc., v. Louis D. Browning, et al., for the admission of Alfred S. Julien as trial counsel pro hac vice.' Explicit in the same judgment was the order of the District Court which continued its order to stay other proceedings in the state court and its implied assumed jurisdiction of appellate review of such judgment as should be rendered by the Superior Court by its orders that '(t)his court will retain jurisdiction in this suit pending the outcome of the application in the State Court for leave to the plaintiffs to have Alfred S. Julien appear as trial counsel pro hac vice in their action' and that '(t)his matter may be brought on before this Court for further proceedings on the application of any party on notice to the others.'
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