Silverman v. BrowningSilverman v. Browning
- Reporters:
- ,
- Before:
- Smith
Lead Opinion
MEMORANDUM OF DECISION
The plaintiff
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,
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 Connecti
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 Fair-field 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
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*83 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,
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.,
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.
The plaintiff filed no petition for certiorari nor did he seek direct review in the United States Supreme Court. Rather, the matter was renewed before this Court, under color of the Court’s original order, wherein it retained jurisdiction, pending the final determination of the issues in the state’s highest court.
1. Does the plaintiff have the right to return to this Court for an adjudication of his federal claims, after failing to request final appellate review through an appeal to the United States Supreme Court; and
2. Assuming jurisdiction does exist, whether § 15A of the Connecticut Practice Book, so interferes with the plaintiff’s right to the selection and effective assistance of legal counsel of his choice, that it is in conflict with the equal protection, the due process and the privileges and immunities clauses of the fourteenth amendment.
Jurisdiction
When the plaintiff briefed his appeal to the Connecticut Supreme Court and argued the case, he included federal constitutional issues of. due process and equal protection. He represented the foregoing issues of law to be major premises in his appellate brief and intended them to be before the State Supreme Court for adjudication. However, that court simply ruled that on the evidentiary record before it, as set out in the findings of the lower trial court, the plaintiff had not sustained his factual burden of proof of establishing the statutory prerequisites for admission. The State Supreme Court declined to review and consider the questions of constitutional law sought to be raised in the appeal, because none of these questions on which the plaintiff sought adjudication had been first presented and placed in issue at the trial court. Therefore, the State Supreme Court ruled that they were not properly before it pursuant to the requirements of § 228 of the Connecticut Practice Book.
Consequently, notwithstanding the fact that the plaintiff submitted his federal claims to the State Supreme Court to be litigated and in fact argued them to that court, since the latter declined to consider and decide those issues on their merits, it cannot be found that the plaintiff is bound by a final adjudication of those federal questions in the state court. However, had he submitted the constitutional issues to the State Supreme Court without reservation, and had that Court decided them, whether or not the plaintiff later sought direct review of the state decision in the United States Supreme Court, he might have been considered to have waived any right to return to the District Court, as a matter of law.
“The three-judge Federal District Court retained jurisdiction of this case while an authoritative construction of Chapters 38 and 36 was being sought in the Virginia courts. . . . The question of our jurisdiction arises because, when the case was last here, we observed that such abstention to secure state court interpretation ‘does not, of course, involve the abdication [by the District Court] of federal jurisdiction, but only the postponement of its exercise . . . .’ Harrison v. NAACP,360 U.S. 167 , 177 [79 S.Ct. 1025 , 1030,3 L.Ed.2d 1152 ], We meant simply that the District Court had properly retained jurisdiction, since a party had the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim. Where, however, the party remitted to the state courts elects to seek a complete and final adjudication of his rights in the state courts, the District Court’s reservation of jurisdiction is purely formal, and does not impair our jurisdiction to review directly an otherwise final state court judgment.” N. A. A. C. P. v. Button,371 U.S. 415 , 427,83 S.Ct. 328 , 335,9 L.Ed.2d 405 , 414 (1963).
The foregoing principles were reiterated and enlarged upon by the Court in England v. Medical Examiners,
“We now explicitly hold that if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then — whether or not he seeks direct review of the state decision in this Court — he has elected to forgo his right to return to the District Court.” (Emphasis added).
Merits
The basic issue in this case is whether the new § 15A of the Practice Book, governing the admission of out-of-state attorneys pro hac vice, violates the plaintiff’s right to select counsel of his choice. In other words, does the rule so restrict his choice of competent specialist counsel in the malpractice field, that his rights to equal protection and due process and his rights under the privileges and immunities clause of the fourteenth amendment are materially impaired.
The Supreme Court has commented on the subject, but has not defined with particularity the constitutional requirements governing the choice of counsel in civil cases. In Poweli v. Alabama, the Court said:
“If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.”287 U.S. 45 , 69,53 S.Ct. 55 , 64,77 L.Ed. 158 , 170 (1932).
The issues to be litigated in the present state court action, wherein the plaintiff desires out-of-state counsel to represent him, do not involve a federal question, nor is it a suit authorized by the Congress to effectuate a basic public interest. The rules of law protecting the public from medical malpractice are created by state statutes and court precedent. The defendants argue that the state has a legitimate interest in the conduct of such litigation in its courts, and that the state properly requires that the attorneys handling the litigation have competent knowledge of state law, procedural rules and state practice, and that the court have inherent disciplinary authority over them, to effectively maintain and enforce the standards of professional conduct required of all attorneys who practice before it. This primary authority to regulate the practice of law before the state courts has historically reposed in the states.
“In Bradwell v. The State,16 Wall. 130 , [21 L.Ed. 442 ], it was held that the right to practise law in the state courts was not a privilege or immunity of a citizen of the United States; that the right to control and regulate the granting of license to practise law in the courts of a State is one of those powers that was not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.” In Re Lockwood, Petitioner,154 U.S. 116 ,14 S.Ct. 1082 ,38 L.Ed. 929 (1893).
Also see, In Re Isserman,
This principle was again affirmed and strengthened in Goldfarb v. Virginia State Bar,
“We recognize that the States have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions. . . . The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ See Sperry v. Florida ex rel. Florida Bar,373 U.S. 379 , 383 [83 S.Ct. 1322 , 1325,10 L.Ed.2d 428 ] (1963); Cohen v. Hurley,366 U.S. 117 , 123-124 [81 S.Ct. 954 , 958,6 L.Ed.2d 156 ] (1961); Law Students Research Council v. Wadmond,401 U.S. 154 , 157 [91 S.Ct. 720 , 723,27 L.Ed.2d 749 ] (1971).”
State rules and regulations governing the practice of law are ultimately sub
However, while the instant ease has been awaiting final disposition in the state and federal courts, a new case concerning the same subject, Norfolk and Western Railway Company v. Beatty,
“A federal constitutional issue was properly presented, it was within our appellate jurisdiction under§ 1257(2) , and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement. As MR. JUSTICE BRENNAN once observed, ‘[vjotes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case. compare . C. Wright, Law of Federal Courts 495 (2d ed. 1970) (‘Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits’). The District Court should have followed the Second Circuit’s advice ... in Doe v. Hodgson,478 F.2d 537 , 539 (CA 2), cert. denied sub nom. Doe v. Brennan,414 U.S. 1096 [94 S.Ct. 732 ,38 L.Ed.2d 555 ] (1973), [that] the lower courts are bound by summary decisions by this Court ‘ “until such time as the Court informs [them] that [they] are not.” ’ ” (Emphasis added).
Norfolk and Western, supra, concerned two railroad companies and five barge line companies regularly operating equipment in the State of Illinois. They brought an action in the federal district court, alleging that for many years a substantial number of suits asserting rights under certain federal statutes — namely, The Federal Employers’ Liability Act (FELA),
Under federal law, Norfolk and Western and the other defendant common carriers were subject to suit by their employees seeking recovery under federally created substantive rights for job-related injuries, in the courts of any state where the employer transacted business. These suits could not be removed thereafter to a federal court,
A dispute arose when the state court judges struck from the list as trial attorneys, these specialist nonresident counsel and ordered the employer-defendants to retain Illinois licensed attorneys, who would be recognized by the court as the principal counsel to handle and try the case. The order did not totally bar out-of-state counsel from being associated in cases with local counsel, but only restricted their activity to a supporting, consulting, or advisory role at the trial.
The Norfolk and Western Railroad Company and its co-plaintiffs in the action resisted the restriction, claiming that because the rights involved had been federally created by statute, the state could not interfere with their selection of counsel and thus impede the vindication of federally protected rights. For the state to so interfere, they argued, and limit these common carriers in their choice of counsel, ran contrary to the federal Supremacy Clause of Article VI. They also argued that such state action impaired the rights created by federal law and violated the equal protection, due process and privileges and immunities clauses of the fourteenth amendment, as well as the commerce clause under Article I § 8, by laying an undue burden on interstate commerce. They claimed that these state restrictions were designed primarily to accomplish “a parochial desire to eliminate outside competition,” and that they were not motivated by a vital and compelling state interest to maintain high standards of ethics and competency among those who practice law in the state courts. The case clearly raised the issue of whether or not a civil litigant’s right to counsel was subject to restriction by state rules governing the practice of law in state courts.
In Norfolk and Western Railway Company v. Beatty, supra,
“The Illinois statute is not unreasonable. It is not a complete bar to out-of-state lawyers, but permits their full participation in isolated cases on a case-by-case determination.”
“ . . .To view it otherwise would be for this Court to create a limited federal or national bar and to impose it on the states. To do so would be in total disregard of the state’s great interests in the control and supervision of the practice of law in its own courts through reasonable requirements for licensing and admission.” (Footnote omitted).
It might be noted that the general tenor of that court’s opinion strongly approved of the prior dissent by Smith, C. J., see
The Norfolk and Western decision might be distinguished from the present case on the theory that the Illinois rule did not completely bar out-of-state lawyers, whereas the Connecticut trial court’s action in this case did. However, it should be pointed out, that the Connecticut Practice Rule, upon a proper showing, would have undoubtedly permitted the out-of-state counsel in the Norfolk and Western case to appear and try the case in Connecticut,merely because of clearly defined prior longstanding relationship. Compliance under the Connecticut rule could be accomplished by an evidentiary showing of “good cause,” as defined in the State Supreme Court’s opinion. The colloquy between counsel and the Connecticut trial court discloses that no adversary type of evidentiary presentation was ever made or attempted. Plaintiff’s counsel appeared to presume that once Attorney Julien’s name was presented with the request for admission, the trial court would automatically infer that his presence would confer benefits
The Court finds that the state courts do possess the inherent power to regulate who shall practice law before them; this is an essential authority to be exercised for the state court’s own protection, as well as that of the litigants. While this Court might suggest a more liberal pro hac vice rule, those matters are for the state judiciary and not this Court. Absent proof of prejudice or abuse of discretion, the state courts must be presumed to act in good faith and with judicial wisdom, and must be permitted to exercise their regulatory powers freely. See Norfolk and Western Railway Company v. Beatty, supra; Sperry v. Florida ex rel. Florida Bar,
The defendants’ motion to dismiss the action for failure to state a claim upon which relief can be granted, pursuant to
The foregoing opinion shall constitute the findings of fact and conclusions of law required to be filed by the Court, pursuant to
Notes
. 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 this action, and that Nathan’s widow, Adele Nathan, succeeded Silverman as administratrix, and in that capacity was substituted as successor plaintiff. Since the record retains the original title of the case, the Court will conform to that usage.
. “It then found that the plaintiff made no showing that the application was ‘a special or infrequent occasion,’ that the only reason given by the plaintiff in open court on the hearing on the application was that the plaintiff ‘desired’ Julien to represent him, that no factual showing was made by the plaintiff at the hearing that Julien’s representation would affect the personal or financial welfare of his client, that no showing was made at the hearing that the litigant was unable to secure the services of competent Connecticut counsel to try the case, and that the plaintiff failed to establish good cause under § 15A of the Practice Book.”
Dissenting Opinion
(dissenting):
The Court rejects plaintiff’s claim on the authority of the Supreme Court’s affirmance of the three-judge court decision in Norfolk and Western Railway Company v. Beatty,
The case has unfortunately become complicated by the prior course of proceedings both in this Court and in the Connecticut Supreme Court. The extent to which those proceedings are related and the extent to which they are not related must be clearly understood. The action of which the plaintiff complains in this Court was taken by a judge of the state Superior Court. That action, denying pro hac- vice admission, was properly challenged in this Court. See Silverman v. Browning,
Since the plaintiff did not reserve his federal question for subsequent determination by the federal court, his present claims would have been foreclosed from further litigation had the State Supreme Court ruled upon them. See England v. Medical Examiners,
In any event, the State Supreme Court declined to decide the federal question, and plaintiff is not foreclosed from returning to this Court. But it is important to bear in mind that he returns to resume the litigation that was interrupted by this Court’s abstention; he does not bring before us for review any aspect of the decision of the State Supreme Court, as to which we have no appellate jurisdiction whatsoever. The only new ingredient in the lawsuit in this Court is the definitive construction of § 15A, a construction which, as I feared earlier, does not eliminate the constitutional question before us.
On the merits, I adhere to the views expressed previously,
. Arguably, the propriety of seeking relief from this Court during the pendency of the state court civil proceeding has been rendered in some doubt by the Supreme Court’s limited extension of Younger v. Harris,