Petition — Dacey v. House

. ut, U.S

FILED

oe | MAR 27 1979

’ SUPREME COURT OF THE UNITER MEAT ES. JR., CLERK |

y October Term, 1977

No. 2Z= 136 9)

| NORMAN F. DACEY, ee

Petitioner,

vs.

CHARLES S. HOUSE, ALVA P. LOISELLE,

JOSEPH W. BOGDANSKI, JOSEPH S. LONGO,

and WILLIAM P. BARBER,

, Respondents.

AND

: NORMAN F. DACEY,

Petitioner,

vs.

PETER C. DORSEY,

Respondent.

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

WITH APPENDIX

Norman F. Dacey

3200 Park Avenue

t Bridgeport, Conn. 06604

Petitioner, pro se

reer

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

’ NO,

NORMAN F, DACEY

Petitioner

Vv.

CHARLES S. HOUSE, ALVA P. LOISELLE,

JOSEPH W. BOGDANSKI, JOSEPH S. LONGO

and WILLIAM P, BARBER

Respondents

AND

NORMAN F, DACEY

Petitioner

Vv.

PETER C. DORSEY

Respondent

PETITION FOR WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

WITH APPENDIX

Norman F. Dacey

3200 Park Avenue

Bridgeport, Conn. 06604

Petitioner, pro se

“Ea ey

¥

Table of Cases and Authorities

Opinions Below

Statutes, Codes and Canons Involved. .

Statement of the Case

Argument

Appendix

TABLE OF CONTENTS

11

17

58

San.

TABLE OF CASES AND AUTHORITIES CITED

Cases Cited Page

Baker v. Carr, 825S.Ct. 691,

364 U.S. 186 (1962) 51

Bivens v. Six Unknown Agents

of the Federal Bureau of

Narcotics, 29 L ed 2d 619 56

Board of Commissioners of Lake

County v. Platt, Fed. 567

25C.C.A. 87 41

Bonham's Case, 77 Eng. Rep.

646 (K.B. 1610) 34

Bradley v. Fisher, 13 Wall

335, 347 Led. 646 (1972) 43

Brooklyn Bar Association v. King's

County Bar Association, 258

App. Div. 920, 16 N. Y.S.

(2nd) 751 (2nd Dept.) 1939 24

Dacey v. Connecticut Bar Associa- 12,18,35,

tion, 170 Conn. 520 (1976) 36,41, 53

Dacey v. Naruk, D.C. Conn.

No. 77-279, 1978

Unreported 5, 34

Edward v. The United States

5 Circ. 1974,334 Fed.370 29

-le

Cases Cited Page

Cases Cited Page

Ellis v. Emhart Mfg. Co., 150

t In Re Ferguson, 9 Johns N.Y.

Conn. 501, 555 33 1 239 42

Ex nate sirginia, 100 U.S. —* ' ’ In Re Martin, C. A. 5th, 5 Crim.

5 3151, June 30, 1977 30

Franklin v. Meredith, 386 2d In Re Murchison, 349 U.S. 133,

958 (1967) 44 136 (1955) 34°

Gittman v. Bolsinger, USDC Mayberry v. Penna. 95S, Ct.

E Dist. of Penna. 1971, 499 13,25,48

Unreported 56

Mitchum v. Foster 50, 51

Goldfarb v. The Virginia Bar, 421

U.S. 773 (1975) 24 Muller v. Wachtel, 345 F.Supp.

° (1972) 44

Gregory v. Thompson, 500 F.

2d 59 (1974) 44 Pierson v. Ray, 386 S.Ct. 547

° ° (1967) 6, 35, 43

Grievance Committee of the Bar

of Fairfield County v. Dacey Reynolds v. Stockton, 140 U.S.

154 Conn. 129,222 A 2d 339 23 254, 268 ll Sup. Ct. 773,

35 Led. 716 42

Gruman v. Raymond and Betts, 40, 53

1 Conn. 40 Rhoades v. Houston 202 F. 44

Supp. 624 (1962)

Hannah v. Armijo, 35 N.M. 73,

28 P. (2d) 511, 512 (1933) 33 Shaw v. Garrison, C.A. La

1973,467 F 2d 113 52

Hopkins v. Com.,3 METCG

(Mass. ) 461 42 , Shepard v. Maxwell, 38 U.S, 333,

. 86 S.Ct. 1966 52

Imbler v. Pachtman, U.S.47

L ed. 2nd 128, 96 S.Ct. 55 . s Snaidach v. Family Finance Corp.

A 81S Ct. 1820 31

=o

Cases Cited

State Ex Rel Brockman v.

Proctor, 298 N.E. 2d

532 (Ohio 1973)

Tenney v. Brandhove, 34l

U.S. 367, 98 L ed 1019

(1951)

The Fair v. Specialty Co.

228 U.S. 22, 25,33 Sup.Ct.

410, 57 L ed. 716

Tumy v. State of Ohio, 273 U.S.

510 (1927)

U.S. v. Price, 86 S.Ct. 1152,

1157 Footnote 7

Williams v. Hilliard, F 2d,

C.A. 6, 1975

76S.D. 210 75 NW 2d 641, 644

1896 1.0. B, 35

Authorities Cited

American Journal of Comparative

Law, 1970, Vol. 18

Ballantine's Law Dictionary

Dosey, Constitutional Law

Halsbury, Lord, Laws of England, V.2

alte

30

56

42

29

48

55

43

42

22

41

21

27,48

Harvard Law Review (1941) 26

Wade, E.C.S. & Bradley, A.W. 25

U.S. Code and Congressional News, 29,31

Vol. 3

Yale Law Journal, Vol. 5, 1941 27

Wright,Charles A, Law of Federal

Courts 49

The Petitioner, Norman F. Dacey,

respectfully prays that writs of certiorari be

issued to review the judgments and opinions

of the United States Court of Appeals for the

Second Circuit entered in the case of Dacey v.

House et al on October 28, 1977, and in the

case of Dacey v. Dorsey on January 12, 1978.

OPINIONS BELOW

The opinions of the District Court and

of the Court of Appeals appear in the Appendix

hereto.

JURISDIC TION

The judgment of the Court of Appeals in

Dacey v. House et al was entered on October

28, 1977. A timely petition for rehearing, re-

quested by the Petitioner, was denied on Nov-

ember 28, 1977.

The judgment of the Court of Appeals in

Dacey v_ Dorsey was entered on January l2,

1978.

-4-

On February 8, 1978, Justice Thurgood

Marshall, Associate Justice of the Supreme

Court of the United States and Circuit Judge of

the United States Court of Appeals for the Sec-

ond Circuit, entered an order extending the

time to file the petition for certiorari on both

cases to and including April 26, 1978. This

petition for certiorari was filed within that ex-

tended time period. This Court's jurisdiction

is invoked under 28 U.S.C. Section 1254(1l).

QUESTIONS PRESENTED

AS TC BOTH CASES:

1, Did the District Court and United States

Court of Appeals err in both cases in that their

decisions did not conform to the decision of the

U.S. District Court in a companion case, Dacey

v. Naruk, that a judge holding memberhip in

the Connecticut Bar Association should proper-

ly recuse himself in any action involving the

Association?

AS TO THE FIVE JUSTICES (HOUSE,

LOISE LLE, BOGDANSKI, LONGO and BARBER:

2. Did the Connecticut Supreme Court Justices’

refusal to recuse themselves from hearing an

appeal from a $60,000 money judgment against

the Connecticut Bar Association, of which they

were members, violate the Connecticut law

forbidding judges from sitting on cases in which

they had a material interest?

atte

3. Did the Connecticut Supreme Court Justices

refusal to recuse themselves violate Canon 3

of the Code of Judicial Conduct?

4. Were the Justices of the Connecticut Su-

preme Court entitled to rely upon the "special

reso lution" of the Board of Governors of the

Connecticut Bar Association for effective ex-

emption from the application to them of the

statutory prohibition against their sitting in a

case in which they had a material interest?

5. If the Connecticut Supreme Court Justices

were statutorily disqualified from presiding,

was their Court thereby improperly constituted

and their judgment therefore without validity?

6. Did the District Court err in dismissing

the complaint against the five state justices on

the grounds of judicial immunity without deter-

mining whether they had acted unconstitutionally

by presiding when they were disqualified by

State law from doing so, or whether their ac-

tions had been carried out in furtherance of

a conspiracy with fellow-members of the Con-

necticut Bar Association to deprive plaintiff

Dacey of his right to due process i.e. an im-

partial tribunal as mandated in Pierson v.

Ray , 386S Ct. 547 (1967)

7. Did the actions of the five state justices in

depriving petitioner Dacey of due process con-

stitute a violation of Title 18 U.S.C. Sections

241 and 242 and thus make available to Dacey

civil relief under the civil counterpart, Title

42 U.S.C. Sections 1983 and 1985?

ae

8. Did the District Court err in not granting

petitione:: Dacey injunctive relief from the

judgment of the members of the illegally-

constituted Connecticut Supreme Court?

AS TO THE RESPONDENT UNITED STATES

ATTORNEY DORSEY:

9. Did Title 42 U.S.C. Section 1986 require

respondent Dorsey to prevent or aid in pre-

venting the deprivation of Dacey's constitu-

tional right to an impartial tribunal.

10. Did the refusal and failure of U.S. Attorney

Dorsey to investigate Dacey's charges that the

five state justices had engaged in criminal vio-

lations of Titlel8 U.S.C. Sections 241 and 242,

and civil violations of Title 42 U.S.C., Sections

1983 and 1985, constitute a violation by him of

Title 42 U.S.C. Section 1986 and if it was sucha

violation by him, should not the District Court

have granted Dacey's plea for injunctive relief

from Dorsey's continuing refusal to fuifill his

obligation under Section 1986?

STATUTES AND CANONS INVOLVED

1. Section 51-39 of the Connecticut General

provides inter alia:

"When there is so near a relationship

between any judge and any party in any

proceeding in court before him, or when

any judge may be liable to contribute to

the damages, costs or expenses of any...

proceeding, or when he may receive a

direct pecuniary benefit by the determina-

tion thereof, he shall be disqualified to

ect." 7.

2. Canon 3, Code of Judicial Conduct, pro-

vides, inter alia:

"C. Disqualification

"(L) A judge should disqualify himself

in a proceeding in which his imparti-

ality might reasonably be questioned,

including but not limited to instances

where....

"(c)he knows that he individually...

has a financial interest in the sub-

ject matter in controversy or ina

party to the proceeding, or any

other interest that could be sub-

stantially affected by the outcome

of the proceeding... '"'

>. Title 42, U.S. Code Section 1983 provides,

inter alia:

"Fyvery person who, under color of any

statute, ordinance, regulation, custom or

usage...subjects, or causes to be sub-

jected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to

the party injured in an action at law, suit

in equity or other proceeding for redress."

4, Title 42, U.S. Code Section 1985 provides,

inter alia:

"In any case of conspiracy set forth in

this section if one or more persons en-

gaged therein do, or cause to be done, any

act in furtherance of such conspiracy

oGe-

whereby another is injured in his person

or property, or deprived of having and

exercising any right or privilege of a

citizen of the Unit ed States, the party

so injured or deprived may have an ac-

tion for the recovery of damages, occa-

sioned by such injury or deprivation,

against any one or more of the conspira-

tors."

5. Title 28, U.S. Code Section 455 provides

inter alia:

"Any justice or judge of the United States

shall disqualify himself in any case in

which he has a substantial interest, has

been of counsel, is or has been a mater-

ial witness, or is so related to or connec-

ted with any party or his attorney as to

render it improper, in his opinion, for

him to sit on the trial, appeal, or other

proceeding therein (emphasis added). "

6. Title 18, U.S. Code Section 241 provides,

inter alia:

"If two or more persons conspire to

injure, oppress, threaten, or intimidate

any citizen in the free exercise of any

right or privilege secured to him by the

Constitution or laws of the United States,

or because of his having exercised the

same...they shall be fined not more

than $5,000, or imprisoned not more

than ten years, or both."

7.

Title 18, U.S. Code Section 242 provides,

inter alia:

alia:

"Whoever, under color of law, statute

or regulation, ordinance or custom,

wilfully subjects an inhabitant of any state

to the deprivation of any rights, privi-

leges or immunities secured or protected

by the Constitution or laws of the United

States...shall be fined no more than

$1,000 or imprisoned for one year or

both, "

Title 42, U.S. Code 1986 provides, inter

"Every person who, having knowledge

that any of the wrongs conspired to be

done, and mentioned in the preceding

Section [1985 of Title 42] are about to

be committed, and having the power to

prevent or aid in preventing the commis-

sion of the same, neglects or refuses

to do, if such wrongful act be committed

shall be liable tO the party injured, or

his legal representatives, for all

damages caused by such wrongful act

which such person by reasonable dili-

gence could have prevented; and such

damages may be recovered in an action

on the case; and any number of persons

guilty of such wrongful neglect or refus-

al may be joined as defendants in the

action, "'

-10-

STATEMENT OF THE CASE

1. In 1966, Petitioner Norman F,. Dacey

wrote the best-selling book How To Avoid

Probate. In 1967, the Connecticut Bar Associ-

ation distributed nationwide a pamphlet which

seriously libeled Dacey. On June 13, 1974, sev-

_ 1 years later, a jury in the Superior Court of

Connecticut found that the Association had mali-

ciously libeled Dacey and awarded him $60, 000

damages plus $7,500 counsel fees.

The Bar Association appealed the verdict

to five of its own members acting under color

of law as members of the Supreme Court of

Connecticut. Dacey cited to that Court Section

51-39 of the Connecticut General Statutes, which

prohibits a judge from sitting on any case in

which he has a pecuniary interest, and Canon 3

of the Code of Judicial Conduct, which pro-

hibits a judge from presiding on any action in

which he has a financial interest or in which

his impartiality might reasonably be questioned,

and moved that they recuse themselves. The

members of the Court, although reminded that

by action of the jury and decision of the Con-

necticut Bar Association each of them was re-

quired to contribute to the damage award,

nevertheless declined to recuse themselves and

sat in judgment.

Two months later, the Board of Governa's

of the Bar Association passed a "'special resolu-

tion'' purporting to grant to any judge presiding

on any phase of the libel action a remission of

his future dues equal to any sum which he had

been required to contribute to the damages of

the libel action, an attempt to evade both the

letter and the spirit of the State's "fair trial"

statute.

«ll-

The resolution was faulty on two grounds:

(1) the Bar Association, a private organization,

had no power or authority to waive, suspend or

circumvent the effectiveness of a State law in

its application to its members, (2) whereas the

statute applied to ''any jucge who may be liable

to contribute (emphasis added), "' the resolution

provided only for a refund of any such contribu-

tion in the form of a remission of future dues.

Following passage of the resolution, the five

Connecticut justices set aside the jury's ver-

dict and ordered the case re-tried. Dacey v.

Connecticut Bar Association, 170 Conn. 520

368 A. 2d 125 (1976)

The Justices of the Connecticut Supreme

Court made no attempt to find a solution to the

problem of their individual disqualifications.

Among the solutions which they could have ex-

plored were these:

(a) They could have recused themselves

and asked the Governor to appoint

five temporary justices from among

members of the State judiciary or

bar who were not members of the De-

fendant Association.

(b) They could have asked the Supreme

Court of Massachusetts, Rhode Island

or New York to hear the appeal in

their stead.

(c) They could have reported the ''case

of first impression" to the United

States Supreme Court for a decision

on the appeal in recognition of the

unusual circumstances of their own

lawfully-required disqualification.

- *

Dacey filed suit against the five Connec-

ticut Supreme Court Justices in the United States

District Court for the District of Connecticut,

charging violations of Title 42 U.S, Code Sec-

tions 1983 and 1985 in that they had deprived

him of due process,i.e. an impartial tribunal.

Mayberry v. Penna. 95 S.Ct.499. He asked

for money damages and injunctive relief from

their illegal decision. The Honorable Robert

C.Zampano, the U.S. District Judge who pre-

sided, acknowledged that he,too, was a mem-

ber of the Connecticut Bar Association and

therefore one of those ordered by the trial

jury to contribute to the damages and costs of

the libel action. Claiming that he was not

prejudiced, however, he declined to recuse

or disqualify himself, even when reminded

that Canon 3 required him to disqualify him-

self if his impartiality 'might reasonably be

questioned, '' and despite the existence of Title

28 U.S. Code Sections 144 and 455. Instead,

he dismissed the action cut of hand, without

consideration of the issues, solely on the

grounds of judicial immunity, ignoring com-

pletely Dacey's plea for injunctive relief a

violation of Title 28 U.S. Code Section 455.

Dacey appealed this judgment to the

Second Circuit, which affirmed on Oct. 28,1978

Dacey moved for a re-hearing; this was denied

on November 28, 1978.

Dacey next filed with Peter H. Dorsey,

the United States Attorney for Connecticut, a

formal complaint that the five justices had vio-

lated Title 18 U.S. Code Section 242, which

makes it a criminal offense to deprive a citi-

zen of his constitutional right to due process.

Dorsey declined even to investigate, much less

to act upon the complaint, stating that he, too,

was a member of the Connecticut Bar Associa-

tion, and he would not bring charges against

five of his fellow-members. A few months

afterward, he was named as the new President

of the Bar Association.

Dacey then filed suit in the U.S. District

Court for the District of Connecticut charging

the U.S. Attorney with violation of Title 42

U.S. Code Sections 1985 (conspiracy to deprive

another of his civil rights) and 1986 which re-

quires anyone "in a position to prevent or aid

in preventing" the deprivation of civil rights

to do so. Request was also made for injunc-

tive relief from Dorsey's failure to enforce

the law. Judge Zampano, the same U.S, Dis-

trict Judge who had earlier dismissed the

action against the five justices, his fellow Bar

Association members, insisted upon presiding

over the action against the U.S. Attorney, dis-

missing it on grounds of prosecutorial immuni-

ty without consideration of the merits and with-

out regard for the plea for injunctive relief.

Dacey appealed to the Second Circuit which af-

firmed on January 12, 1978.

On May 22, 1978, ten years after the

action was filed, retrial of Dacey's libel action

against the Connecticut Bar Association began

in the Superior Court of Connecticut. Dacey

had earlier requested the Chief Administrative

Judge of the Connecticut courts (an Associate

Justice of the Connecticut Supreme Court) to

assign it to a judge who was not a member of

the Bar Association. He had replied that there

were several non-Association-member judges

-14-

available to whom it could be assigned, and

advised that he was forwarding the request to

the Acting Administrative Judge at Bridgeport

"to resolve the matter. '' (See Appendix I)

In preliminary motions, the Acting Administra-

tive Judge recused himself on the grounds that

he was a member of the Connecticut Bar As-

sociation and therefore disqualified by law

from presiding on the action, referring the

case to another judge who was not a member

of the Association.

When trial began, however, and Dacey

asked the presiding judge, the Honorable

Henry J. Naruk, to confirm that he was nota

member of the Defendant Association, Judge

Naruk acknowledged that in fact he was a mem-

ber. Connecticut General Statute 51-39 and

Canon 3 of the Canons of Judicial Conduct were

thereupon cited to him and he was asked to

r-cuse himself. He refused todo so. When

Dacey stated his intention to disclose to the

jury the fact of Judge Naruk's statutory dis-

qualification, Naruk threatened to declare a

mistrial, requiring Dacey to wait another ten

years for his day in court. (Dacey, in his

seventieth year, suffers from a terminal

illness.) The first jury had required only five

minutes to decide, on the basis of the evidence

presented, that Dacey had been libeled. After

continuously adverse rulings on evidence by

Judge Naruk and certain irregularities by

Dacey's counsel at the second trial, the jury

found against Dacey. At the close of the action,

Dacey discovered that his counsel had acquired

oe the period of preparation for the retrial,

a ‘new partner" who at the time of the first

trial and until shortly before the retrial had

been a member of the law firm representing

ofBe

the Defendant Bar Association, a fact which

the lawyers chose not to disclose to Dacey.

Dacey promptly filed suit in the U.S.

District Court for the District of Connecticut

against Judge Naruk, charging violation of

Title 42 U.S. Code Sections 1983 and 1985 and

seeking monetary damages and injunctive re+

lief from the verdict of the improperly-consti-

tuted Naruk court. The complaint specifically

requested that the action be heard by a jury be-

fore a judge who was not a member of the Con-

necticut Bar Association. The Honorable Jon

O. Newman, the U.S. District Judge who heard

the action, promptly dismissed it without argu-

ment or a hearing on the grounds of judicial

immunity, completely disregarding the plea

for injunctive relief, against which there is ab-

solutely no judicial immunity. When Dacey

learned that Judge Newman was in fact a mem-

ber of the Bar Association, he filed an Affida-

vit of Prejudice under Title 28 U.S.C. Code

Section 144, calling upon Judge Newman to va-

cate his rulings and recuse himself. This

Judge Newman did, acknowledging that the fact

of his membership in the Association could

raise a question of his impartiality. The action

is now awaiting assignment to a visiting judge

from outside the Connecticut District. Judge

Newman's action affirmed the validity of the

argument which Dacey has been making in all

these cases -- that judges with a material in-

terest in a case must recuse themselves.

Dacey has been unable to obtain counsel

in any of these actions, members of the Bar

being averse to identifying themselves with

litigation against judges before whom they

must argue their cases in the future. It has

-l6-

therefore been necessary for your Petitioner

to proceed pro se. The extent of Connecticut

lawyers' fears of even the appearance of ac-

tion against a judge is shown in an article re-

printed herein as Appendix J describing the

circumstances in which all lawyer-members

of the Connecticut legislature voted unani-

mously in favor of all judicial nominations,

even though some had privately expressed

their opposition to some of the nominees.

This provoked such disgust among the non-

lawyer legislators that some of them voted

"no" on all judicial appointments as as act of

protest.

ARGU MENT

AS TO BOTH CASES:

1. DID THE DISTRICT COURT AND UNITED

STATES COURT OF APPEALS ERR IN BOTH

CASES IN THAT THEIR DECISIONS DID NOT

CONFORM TO THE DECISION OF THE U.S.

DISTRICT COURT IN A COMPANION CASE

DACEY V. NARUK, THAT A JUDGE HOLDING

MEMBERSHIP IN THE ©@NNECTICUT BAR

ASSOCIATION SHOULD PROPERLY RECUSE

HIMSELF IN ANY ACTION INVOLVING THE

ASSOCIATION ?

In both cases, Dacey seeks redress,

by way of injunctive relief, for injury done his

cause against the Connecticut Bar Association

by jurists and a prosecutor who were members

of that Association and who had material inter-

ests in that Association. Dacey v. House et al

-17-

complains that the five justices of the Connecti-

cut Supreme Court should have recused them-

selves rather than sit on the appeal of the

Connecticut Bar Association from a jury's

award of $60,000 plus $7, 500 counsel fees to

Norman Dacey in the libel action titled Dacey

v. Connecticut Bar Association despite the ex-

istence of Connecticut General Statute 51-39

which prohibits a judge from presiding on any

case in which he has a pecuniary interest. Each

of the justices was a member of the Bar Associ-

ation and each was assessed a material amount

of money to satisfy the judgment.

In Dacey v. Dorsey, the plaintiff complain-

ed that the U.S. Attorney refused to investigate

the violation of the State law and of Title 42 U.S.

Code Sections 1983 and 1985.

The five justices having reversed the jury

and ordered the case of Dacey v. Connecticut

Bar Association retried, that retrial then took

place with Connecticut Superior Court Judge

Henry J. Naruk presiding. When the State

statute, Federal law and the Code of Judicial

Conduct were cited to him and he was asked

to recuse himself, he refused. Thereafter,

Dacey filed suit in the U.S. District Court

charging him with violations of the State and

Federal laws. U.S. District Judge Jon O.

Newman, presiding on the action, was a mem-

ber of the Connecticut Bar Association and

when the law was cited to him, he readily

agreed that his membership in the Association

disqualified him from presiding on the action in

which injunctive relief was sought against the

judgment of the Naruk court holding the Associ-

ation free of liability in the libel action. See

Appendix K. Thus a lack of uniformity

-18-

among U.S. District Courts on an identical

issue was established.

Many precedents and authorities hold that

uniformity of interpretation of Federal and

State law is highly desirable and that one of the

most important functions of this Court is to ob-

tain and maintain such uniformity. By revers-

ing and remanding to the U.S. District Court

both the instant cases, with instructions that

the court is to strictly observe Title 28 U.S.

Code Section 1652 (which requires that U.S.

Judges enforce State laws wherever they are

patently not constitutional) by enforcing Section

51-39 of the Connecticut General Statutes by

setting aside (under Title 28 U.S. Code Section

1651, the "all-writs' statute) the judgment of

the five justices in overturning the State jury

verdict in favor of Dacey in his libel action

against the Connecticut Bar Association, and

requiring U.S. Attorney Dorsey or his succes-

sor to investigate the behavior of the instant

respondents, House et als, this Court can es-

tablish the uniformity of the decisions of the

U.S. District Court for the District of Connec-

ticut.

AS TO THE FIVE JUSTICES (HOUSE,

LOISE LLE, BOGDANSKI, LONGO and BARBER

2. DID THE CONNECTICUT SUPREME COURT

JUSTICES' REFUSAL TO RECUSE THEM-

SELVES FROM HEARING AN APPEAL FROM

A $60,000 MONEY JUDGMENT AGAINST THE

CONNECTICUT BAR ASSOCIATION, OF

WHICH THEY WERE MEMBERS, VIOLATE THE

CONNECTICUT LAW FORBIDDING JUDGES

-19-

FROM SITTING ON CASES IN WHICH THEY

HAD A MATERIAL INTEREST?

Section 51-39 of the Connecticut General

Statutes provides, inter alia:

"When there is so near a relationship

between any judge and any party in any

proceeding in court before him...or

when any judge may be liable to contribute

to the damages, costs or expenses of any

proceeding, or when he may receive a

direct pecuniary benefit by the determina-

tion thereof, he shall be disqualified to

i

The Connecticut Bar Association was the

defendant in the action which had come on for

hearing on appeal before the respondents.

Throughout his professional life, each of the

five Justices of the Connecticut Supreme Court

had been a loyal, dues-paying member of the

defendant Association. Among the members

of the Association were literally hundreds of

individuals whom the justices regarded as per-

sonal friends and with whom they had played

golf and socialized over the years. Some among

the members were former law partners of the

justices.

Fach of the five had been recommended by

the Association for appointment to the seat he

held. Each had required and received the ap-

proval of the Judiciary Committee of the C onne-

ticut General Assembly, every member of

which is a member of the defendant Association.

As they progressed upward through the Connec-

ticut judiciary over the years, these same ap-

-20-

proval procedures applied to their periodic

An article in the American Journal of

reappointments. It cannot be denied then that Comparative Law (Vol. 18, p. 692, 1970) offers

there existed what the statute referred to as insight into the question of disqualification:

"a near relationship" between the five justices .

and the Connecticut Bar Association. "Most important to the various methods

’ f established by statute to assure judicial

impartiality are measures designed to

disqualify a judge from passing on cases

in which he presumably lacks the objec -

tivity necessary for the proper adminis-

tration of justice. There are two cate-

gories of such measures: 'impediment'

and ‘suspicion. ' The 'impediment' is an

absolute irrebuttable legislative presump-

tion that in a given set of circumstances

a judge is incapable of functioning impar-

tially. Whenever these circumstances

are present, one of the parties may raise

and argue the judge's ability to decide

The justices are members of a class of

persons who had been assessed to contribute to impartially unless, of course, the judge

the damages awarded by the jury in the Dacey . . spontaneously recuses himself."

libel action, and thus they had what the statute

had identified as a "pecuniary" interest. How- "The causes for an 'impediment' include:

ever, the pecuniary interest was not the sole

basis for the necessity of disqualification, nor ''...(d) when the judge is directly inter-

even the principal basis. It is the fact of mem- ested in the proceedings."

bership in the defendant bar association which

necessitated the disqualification. It is not mere- ''Suspicion' is a more fluid concept than

ly that a justice should be impartial; each ‘impediment' One of the most common

must appear impartial. ‘Justice must not only reasons for suspicion is friendship or

be done, it must appear to be done." (Dosey, enmity between the judge and any of the

Constitutional Law) The Connecticut statute parties."

which debarred the justices from sitting was

legislated in order to guarantee to citizens of . : "Other circumstances which will render

Connecticut a fair and impartial hearing of a judge suspect are:

their causes, ihe . ‘

''.,.(e) when the judge is a partner, share-

holder, or administrator of a corporation

or company interested in the case,"

—22-

In the case in which the justices were

asked to disqualify themselves, there can be no

doubt that there existed an "impediment, "' an

"absohte, irrebuttable legislative presumption, "'

stated in Section 51-39 of the Statutes, that

there existed a set of circumstances clearly

indicative of the fact that they were "incapable

of functioning impartially. '' Nor can it be ques-

tioned that they were "'shareholders" or that

there was ''friendship'' between them and the

members of the defendant Assocation.

Thus, their interest was not only pecuni-

ary. The lawsuit which had come before them

had been in the headlines for ten years, as the

Bar Association employed every legal strategem

known to it members to avoid being called to

account. It had been the subject of many sharp-

ly critical newspaper editorials, as well as

letters-to-the-editor reflecting public scorn for

the body. The Plaintiff in the action had be-

come a source of continuing acute embarrass-

ment to the members of the Association, all of

whom bitterly resented his persistent pursuit

of his libel claim. The justices had more than

a monetary interest in the action, then. They

shared with their fellow-members an intense

dislike for the Plaintiff in the case -- which is

to say that they were prejudiced against him.

Proof of their dislike for him is found in their

description of his estate planning practices as

"sordid" in their denial earlier of his appeal

against an injunction prohibiting him from

advising on the establishment of inter vivos

trusts as an instrument for avoiding probate.

Grievance Committee of the Bar of Fairfield

County v. Dacey, 154 Conn. 129,222 A 2d 339.

-23-

Precedent calls for the disqualification

of a member of a court who is identified with

a bar association which is a litigant. In

Brooklyn Bar Association v. King's County Bar

Association (258 App. Div. 920,16 N. Y.S. (2d)

751 (2nd Dept. 1939) the entire court was dis-

qualified as members of the plaintiff bar assoc-

iation. In Goldfarb v. Virginia Bar 421, U.S.773

(1975), Mr.Justice Powell, who had once been a

member of the Virginia Bar, recused himself.

In the case involving Dacey and the Connecticut

Bar Association, it was immediately apparent

that it would be patently improper for a current

dues-paying member of the defendant associa-

tion to sit in judgment.

As Association members, the justices

would not have been permitted to sit as jurors

on the trial of the action. How, then, could

they sit in judgment on it?

Precedent indicates that judges who are

members of bar associations are unable to di-

vorce themselves from prejudice in cases

involving such associations. In connection

with the publication of How To Avoid Probate

in 1966, the New York County Lawyers Associ-

ation brought an action in New York charging

Dacey with criminal contempt of court for hav-

ing written the book. The action, tried in the

lower and appellate courts, was finally struck

down overwhelmingly (6-1) in the New York

Court of Appeals,21 N.Y. 2d 695. Altogether

during the course of the hearings 13 judges

sat on the case, of whom six were members

of the New York County Lawyers Association

and seven were not. Significantly, all six

judges who weremembers of the Association

-24-

found Dacey guilty, while the seven non-mem-

ber judges found in his favor. It is obvious

that members of a bar association involved in

litigation are hopelessly disqualified by preju-

dice from sitting in judgment on such litigation.

The Seventh Amendment to the Constitu-

tion of the United States states that:

"In suits at common law...no fact tried

by a jury shall be otherwise re-examined

in any court in the United States, other

than according to the rules of common

law, "'

The rules of common law provide that

every citizen shall have the right to a fair

trial -- ''fair'' includes a trial before an unbias-

ed and impartial tribunal. Mayberry v. Penna.

95 S.CtA499. When the justices denied Dacey

a fair and impartial tribunal, they denied him

due process, one of the most fundamental guar-

antees of the Constitution.

In G ieral Constitutional Law (E.C.S.

Wade and ..W. Bradley, Longman, London,

1965, p. 653) it is stated:

''The essence of a fair judicial decision is

that it shall have been made by an impar-

tial judge. The rule against bias... is

that disqualification of judge from acting

in a particular case can arise in two

ways: (a) where he has any direct pecun-

iary interest, however small, in the sub-

ject matter of the inquiry; (b) where, a-

part from direct pecuniary interest, there

is a real likelihood that the judge would

it.

have a bias in favor of one of the parties.

Where bias is alleged, the reviewing

court does not decide whether the deci-

sion was in fact biased, but whether in

the circumstances a reasonable possibili-

ty of bias was established. The principle

should be that justice should not only be

done, it should undoubtedly and manifest-

ly be seen to be done. "'

Following are excerpts from an authori-

tative article on the disqualification of judges

which appeared in the Harvard Law Review

(79:1435, May '66):

"The right to a trial before an impartial

judge is an unquestioned part of our concept of

due process of law.... The fundamental princi-

ple that a man may not be a judge in his own case

was recognized by the common law as early as

Coke's time. The English courts extended the

principle to judges who, while not named as

parties, had a pecuniary or proprietary inter-

est, even when the interest was quite remote.

In 1865, a frequently-cited dictum indicated

that there would be a disqualification 'wherever

[sic] there is a real likelihood that the judge

would from kindred or any other cause, have

a bias....When facts are alleged which support

an inference of bias, the judge is disqualified

even though in his own mind and heart he may

actually be completely impartial. Such a result

is justified in part because a direct inquiry into

the judge's state of mind would be impracticahle ©

even if possible....Even when a judge acts hon-

estly, however, the presence of prejudice will

distort judgment. "'

-26-

The Yale Law Journal, in a 1941 article on

the disqualification of judges, noted that "It is

now almost universal practice for judges not to

sit in cases involving corporations in which

they own stock. '' The Connecticut Bar Associa-

tion is a non-stock corporation, its members

being the equivalent of owners. The Association

has assets, that is, they have a pecuniary inter-

est in the corporation. The respondent justices

are among those owners and it is the owners of

a corporation which the law and custom debar

from sitting in judgment on an action involving

the corporation.

In the section on ''Constitutional Law: in

Lord Halsbury'sLaw of England (1955) Vol.2,

pg. 67, we read:

"Bias By Interest: It is an elementary

principle that no man shall be a judge

in his own cause. Therefore, where per-

sons who have a direct interest in the sub-

ject matter of an inquiry before an infer-

ior tribunal take part in adjudicating it,

the tribunal is improperly constituted and

is without jurisdiction, and the court will

grant an order of prohibition to restrain

it from adjudicating, or an order of cer-

tiorari to quash a determination arrived

at by it. "'

“Any pecuniary interest, however small,

in the matter in dispute disqualifies a

person from acting as judge."

Appellees have sought to justify their de-

fiance of the State law by claiming that they had

a "duty to sit.'' They were the "court of last

eB Fo

resort,'' they claimed. The Bar Association

was entitled to a hearing on its appeal, and

oon

they were the only ones who could hear that

appeal. "Disqualification must yield to necessi-

ty, ''they asserted, "where to disqualify would

destroy the only tribunal in which relief could

be had and thus preclude determination of the

issue.'' This is sophistry. The Appellant has

not sought to "destroy the tribunal. '' Appellees

should properly have recused themselves, thus

creating five temporary vacancies on the Con-

nectict bench only so far as the Dacey action

was concerned, and inviting the Governor to

fill five temporary appointments from the ranks

of the Connecticut Bench and Bar, selecting

persons without affiliation with the Connecticut

Bar Assocation. It would be immeasurably

simple for the Governor to fill five such tem-

porary vacancies than to fill one permanent

vacancy -- many distinguished members of the

Bar who for economic or other reasons would

decline regular appointment to the Bench would

gladly accept such a special assignment, re-

garding it as an interesting legal experience.

Their duties would not have involved presiding

over a long-drawn-out trial; a study oi the

briefs and a one-hour hearing of the appeal

would have sufficed.

Alternatively, Appellees could have

asked the Supreme Court of Massachusetts,

Rhode Island or New York to sit in the novel

circumstances in which they found themselves.

Finally, they could have petitioned the United

States Supreme Court to hear the appeal or to

rule on the issue of their disqualification. They

chose to do none of those things. They wanted

to hear the appeal. They make no slightest

-28-

effort to test the willingness of any of these ju-

dicial bodies to assist in resolving the prob-

lem because they wanted to sit -- nay, they

were determined to sit.

Concerning their claimed ''duty to sit, "

they are at odds with the times.

The language of Title 28, Section 455,

as rewritten in 1974, has the effect of

removing the so-called 'duty to sit'

which has become a gloss on the existing

statute. Under the interpretation set

forth in Edwards v. The United States,

(5 Circ.1974,334 Fed.370) a judge, faced

with a close question of disqualification,

was urged to resolve the issue in favor

of a 'duty to sit.' Such a concept has been

criticized by legal writers, and witnesses

at the hearings were unanimously of the

opinion that the elimination of this ‘duty

to sit' would enhance public confidence

in the impartiality of the judicial system.

No judge, of course, has a duty to sit

where his impartiality might reasonably

be questioned... litigants ought not to

have to face a judge where there is a

reasonable question of impartiality (em-

phasis added). '' (U.S. Code and Congres-

sional News, Vol. 3, p. 6355)

The administration of justice in the Uni-

ted States rests upon the bedrock of due process,

Half a century ago, the United States Supreme

Court ruled in Tumy v. State of Ohio, 273 U.S.

510 (1927), that it was a violation of due process

for a judge to decide a case in which he had a

direct personal or pecuniary interest. Within

-29-

the past year, the Fifth Circuit spelled out the

same doctrine:

"The integrity of the judicial process re-

quires that a judge wholly unconnected

with [the parties to the litigation] should

sit on the case. Due process requires

no less." In re Martin, C.A. 5th, 5 Crim.

3151, June 30, 1977.

In State Ex Rel Brockman v. Proctor,

298 N.E.2d 532 (Ohio 1973), the court held that:

"A fair trial in a fair tribunal is the basic

requirement of due process. To this

end, no man can be a judge in his own

case, and no man is permitted to try

cases where he has an interest in the

outcome. "'

3. DID THE CONNECTICUT SUPREME

COURT JUSTICES'REFUSAL TO RECUSE

THEMSELVES VIOLATE CANON 3 OF THE

CODE OF JUDICIAL CONDUCT?

Canon 3 of the Code of Judicial Conduct provicés

inter alia:

"A judge shall disqualify himself in a pro-

ceeding in which his impartiality might

reasonably be questioned, including b |

not limited to instances where

eK

"(c)he knows that he, individually...has

a financial interest in the subject matter

in controversy or in a party to the pro-

ceeding, or any other interest that could

be substantially affected by the outcome

of the proceeding...."

-30-

The phraseology of Canon 3 is incorpora-

ted into Title 28 U.S.C. Section 455, applicable

to Federal judges. The law has been explained

in these words:

"A judge shall disqualify himself when-

ever he has a financial interest in the

subject of the controversy, which is de-

fined as a ‘legal and equitable interest,

however small, ' and this disqualification

is absolute and cannot be waived...."'

'The amended statute prohibits a judge

from accepting from the parties a waiver

of his disqualification where it is based

upon any of the specific situations set

forth in subsection (b) of the amended

statute....Thus, a small financial inter-

est cannot be waived under this provision

of the bill....The Committee believes

that confidence in the impartiality of....

judges is enhanced by a more strict treat-

ment of waiver (emphasis added), (U.S.

Code and Congressional News, 1974, Vol.

3, pp. 6357-6362)

Thus we see that under both the Code of

Judicial Conduct and the U.S. Code, nothing is

de minimis, and a judge who has only ten cents

worth of financial interest is disqualified. In

Snaidach v. Family Finance Corp., 81 S.Ct. 1820,

this Court held that $3.00 was not de minimis,

and in the case of a California citizen who con-

tested a non-appealable $10 traffic fine, it held

that the $10 was not de minimis.

The justices have estimated their individ-

ual liability under the libel judgement as $16. 33,

oSi-

a figure which is grossly underestimated. The

refund of this amount to them is too small to

constitute a bribe, they contend. But if a traf-

fic policeman accepted $16. 33 for not writing

a ticket, he would be charged with having ac-

cepted a bribe.

The entire purpose of the Code of Judicial

Conduct is set forth in Canons 1 and 2 below:

"Canon l. A Judge Should Uphold the In-

tegrity and Independence of the

Judiciary.

An independent and honorable judiciary

is indispensible to justice in our society.

A judge shall participate in establishing,

maintaining and enforcing, and should

himself observe, high standards of con-

duct so that the integrity and independence

of the judiciary may be preserved. The

provisions of this Code shall be constru-

ed and applied to further that objective."

"Canon 2. A Judge Should Avoid Impro-

priety and the Appearance Of

Impropriety in All His Activi-

ties.

A. A judge should respect and comply

with the law and should conduct himself

at all times in a manner that promotes

public confidence in the integrity and im-

partiality of the judiciary."

Nor is the justice himself the one to de-

termine whether or not he is impartial. The

Supreme Court of New Mexico has held, for

example, that

e8Bq

"a judge, even though blessed with all

the virtues any judge ever possessed,

shall not be permitted to exercise judi-

cial power to determine the fact of his

own disqualification. '' State ex. rel.

Hannah v. Armijo, 35 N.M. 73, 28P.

@d) 511, 512 (1933)

Thus, the independence of the judiciary

is essential to promote public confidence and

trust in it. For a justice to sit in judgment on

a case involving, as a party defendant, an asso-

ciation of which the justice is a member, can

have no result other than to question his impar-

tiality.

"It is a well-recognized principle of

natural justice that a man ought not to

be a judge in his own case." Ellis v.

Emhart Mfg.Co., 150 Conn. 501, 555.

The actions of the respondent justices

have not promoted confidence in the integrity

and impartiality of the judiciary. On the con-

trary, they have provoked a spate of editorials

in leading Connecticut newspapers under such

titles as ''Who Judges The Judges?" and ''Law-

yers Ignore the Law.'' As the Waterbury Re-

publican put it: "If ever there was a case in-

volving an individual's constitutional rights,

it is this one, '' while the New Haven Register

observed: ''Dacey has every right to be con-

cerned, and so does the rest of the public. "'

In their blatant violation of Canon 3, the respon-

dent justices have given the American judicial

system a black eye. If they go unrebuked,

public confidence in the rule of law will suffer

a great set back.

afitie

At one point in the proceedings attending

the libel action, the Acting Admmnistrative Judge

of the Superior Court at Bridgeport was called

upon to deal with a preliminary motion by the

counsel for the defendant Association. He

promptly recused himself on the grounds that

he was a member of the defendant Association

and therefore disqualified by statute from

presiding. In the District Court proceedings

against State Superior Court Judge Naruk, whwu

sat on the retrial of the libel action, though

disqualified, Dacey, the plaintiff in the action

called upon U.S, District Court Judge Newman

to recuse himself on the grounds that he was a

member of the Connecticut Bar Association.

He promptly did so. Dacey v. Naruk, U.S.

D.C., Dist. of Conn. No. 77-279,

1978, unreported. Appendix K.

Here both State and Federal judges view

themselves as disqualified. Not so the respon-

dent justices who chose to persist in their de-

liberate violation of Canon 3 of the Code of

Judicial Conduct.

And in Re Murchison, 349 U.S.133, 136

(1955) the court ruled that:

‘Due process can be satisfied only by

the existence of a truly impartial

judiciary. "'

This simply echoed the early Bonham's

Case, 77 Eng.Rep.646, 652 (K.B.1610) in which

it was held that:

"No man ought to be a judge in his own

case, "'

-34-

It is clear that the five justices violated

Section 51-39 of the Connecticut General Sta-

tutes when they insisted upon presiding in the

appeal from the judgment of the Superior

Court in Dacey v. Connecticut Bar Association.

In Pierson v. Ray, 386 U.S. 547, 19 L

ed. 2d 288 87S Ct. 1213, the United States

Supreme Court ruled that:

"The intention to deprive a person of

his civil rights is wholly incompatible

with the judicial function. When a judge

intentionally and knowingly deprives a

person of his constitutional rights he ex-

ercises no discretion or individual judg-

ment; he acts no longer as a judge, but

as a 'minister' of his own prejudice....

A judge is liable for injury caused by a

ministerial act; to have immunity that

judge must have been performing a judi-

cial function (emphasis added). "'

In conspiring with the Bar Association to

thwart the verdict of the libel jury, the five

justices "intentionally and knowingly" deprived

Petitioner Dacey of his constitutional right to

an impartial tribunal. In so doing, according

to Pierson, they acted not as justices but as

ministers of their own prejudices. Thus,

they have no immunity and are liable.

4. WERE THE JUSTICES OF THE CONNECTI-

CUT SUPREME COURT ENTITLED TO RELY

UPON THE "SPECIAL RESOLUTION" OF THE

BOARD OF GOVERNORS OF THE CONNECTI-

CUT BAR ASSOCIATION FOR EFFECTIVE

EXEMPTION FROM THE APPLICATION TO

-35-

THEM OF THE STATUTORY PROHIBITION

AGAINST THEIR SITTING IN A CASE IN

WHICH THEY HAD A MATERIAL INTEREST?

On June 13,1974, the Superior Court found

for Dacey as Plaintiff in the libel action. The

Defendant Bar Association promptly appealed

the judgment to the Supreme Court of Connecti-

cut. In a motion filed in September, 1974, Dacey

called for their recusal. That motion was de-

nied on November 3, 1974. On December 2,1974,

the justices conducted a formal hearing on the

appeal, reserving decision. On January 20,

1975, the Board of Governors of the defendant

Association passed the following:

"RESOLUTION

WHEREAS, one Norman F. Dacey has

secured a judgment against this Assoc-

iation; and

WHEREAS, this judgment is being ap-

pealed to the Supreme Court of Connecti-

cut, and

WHEREAS, this Board of Governors is

vested by the constitution of the Associa-

tion with certain powers in respect of the

remission and suspension of members'

dues and desires to remove even the sug-

gestion of possible personal consideration

from bearing upon any judge or justice

participating in the litigation in question;

NOW THEREFORE, Be It Resolved that,

in view of the provisions of Section 51-39

of the General Statutes, if a final judg-

ment for money damages in favor of the

plaintiff is rendered in the case of

Norman F. Dacey v. The Connecticut

Bar Association, then upon satisfaction

ne

of such money judgment the dues which

would otherwise thereafter become pay-

able by each judge of the Superior Court

and each justice of the Supreme Court

who renders or participates at any stage

in an proceeding, order, ruling or deci-

sion in said case shall be suspended in

an amount bearing the same ratio to the

aggregate payments made in satisfaction

of said judgment as the ratio between

the number one (1) and the total number

of persons shown by the records of the

Association to be dues-paying members

on the date of such judgment. "

This incredibly-transparent attempt to

evade the letter and spirit of Connecticut

Statute 51-39 must rank as one of the sorriest

examples of the utter lack of integrity which

characterizes some members of the Bench and

Bar. The Board of Governors knew about the

resolution, and the respondent justices knew

about it, but not one word of its existence was

made known to the membership at large -- and

understandably. The resolution was utterly

without validity. The justices denied the mo-

tion for recusal on November 3, and sat in

judgment on the appeal on December 2. On the

day that they heard the appeal, they were not

subject to any remission of dues. It was not

until seven weeks later that they and other bar

association members concocted the shabby

resolution in an attempt to make honest men

out of them retroactively. We can only specu-

late on the fear of retribution for their deliber-

ate violation of the law which motivated them

to negotiate for the resolution. It beggars

understanding that these five supposedly dis-

tinguished jurists should stoop to so demean

themselves and the office they hold.

aS

That a justice of a state's highest court

is not above wrong-doing was shown by the

recent judicial censure of an Associate Justice

of the New York Court of Appeals, a jurist who

only recently was a leading candidate for eleva-

tion to the post of Chief Justice.

The Connecticut Bar Association is a

private organization which has no power

or authority to grant its members an exemption

from the applicability to them of a State law.

Nor has any private organization the right to

"bribe" a public official to perform his duty

in such a manner as to favor such private

organization. That the Association itself had

misgivings about the propriety of its action is

suggested by the fact that it has never apprised

its membership of the existence of the resolu-

tion. In other words, the resolution was never

authorized by that membership upon whom the

exclusion of the respondent justices from the

obligation of having to contribute would place

an extra financial burden to make up for the dis-

pensation granted.

The faultily-drawn resolution purports

to offer remission of dues for a judicial contri-

bution to the ''money damages'' awarded in the

libel action but it fails to cover the costs of the

action, including the counsel fees for the pres-

tigious law firm which for a period of ten years

orchestrated every legal stratagem known to the

profession to avoid being brought into court.

This latter expense might well exceed the

amount of the judgment.

Section 51-39 of the General Statutes

reads: ''When any judge may be liable to con-

tribute, etc. '' The so-called "special resolu-

-38-

tion" did not eliminate the liability to contribue-

it simply provided for a refund, in the form of

dues remission, of any amount which a judge

had already paid out. Thus, the resolution did

nothing to remove the liability to contribute

which the statute specified as the occasion for

disqualification. If after paying his share of

the damages a judge died, there would be no

more dues and therefore no ''remission." If

the Association ceased to exist - being replaced,

for example, by an integrated bar -he would

enjoy no "remission." If other Association

members argued that the judge should pay his

fair share of the financial burden, or if the ap-

proximately 1,000 new members argued that

they were not members at the time of the libel

and should not be burdened with the penalty

for it, or if the remaining 4,500 older mem-

bers who were never notified of the resolution

argued that since they were not advised of the

Association's operations attending the libel or

offered an opportunity to express their approval

or disapproval of it, they should not now be

liable for the damages, the respondents’ per-

sonal liability could greatly increase to the

point where it would not be significantly offset

by a remission of their dues. For these and

other reasons, the "special resolution" failed

in its transparent purpose to evade the State

law.

In the circumstances, the respondent

justices were not entitled to rely upon remis-

sion of dues as a justification for violating

the State law.

5. IF THE CONNECTICUT SUPREME COURT

-39-

JUSTICES WERE STATUTORILY DISQUALI-

FIED FROM PRESIDING, WAS THEIR COURT

THEREBY IMPROPERLY CONSTITUTED AND

THEIR JUDGMENT THEREFORE WITHOUT

VALIDITY?

In Gruman v.Raymond and Betts, | Conn.

40,1814, which involved a successful suit for

damages against a judge who had issued an il-

legal warrent, it was held that:

"There must be a jurisdiction of the

process as well as of the person and

cause. There is no process sanctioned

by law in which a disqualified judge may

serve on the bench. Where there is want

of jurisdiction over the cause, it is the

same as though there were no court. It is

coram-non-judice....Although here the

justice had jurisdiction over the subject

matter, yet he had no jurisdiction over

the process (emphasis added), "'

Nothing could be clearer. ''There is no

process sanctioned in law by which a disquali-

fied judge may serve on the bench, "it says.

But the instant justices, absolutely disqualified

according to Connecticut Statute 51-39, did

serve. The acts with which they have been

charged were not, therefore, "within their

process jurisdiction. "'

"Where there is want of jurisdiction over

the cause,'' said the Connecticut court, "it is

the same as though there were no court." These

Appellees had routine jurisdiction over the

process -- that is, they were assigned to re-

view cases appealed to the Supreme Court --

-40-

but in the case of Dacey v. The Connecticut Bar

Association, they were disqualified by law.

They had no jurisdiction. There was no court,

then; they only pretended to be a court. They

acted, as Section 1983 puts it, "under color of

law'' and what they did had the appearance of

legality but it was in fact, illegal.

To determine whether the justices acted

without jurisdiction, one must first ask: ''What

is jurisdiction? '

(a) "Jurisdiction" is the right of a tribunal

to exercise its power with respect to a particu-

lar matter (emphasis added). Ballantine’ s Law

Dictionary, p. 690.

However valid may have been the justices'

right to exercise power over a general class of

matters which might be presented for their at-

tention, they lacked the power or authorityto ad-

judicate a particular matter, Dacey v. Connec-

ticut Bar Association. Lacking the right to ex-

ercise power over that particular matter, they

lacked jurisdiction over it.

(b) "The test of the jurisdiction of a court is

whether or not it has power to enter upon the

inguiry, not whether its conclusion in the course

of it was right or wrong (emphasis added), "'

Board of Commissioners of Lake County v.

Platt, 79 Fed. 567, 25C.C.A. 87

The Connecticut statute specifically dis-

qualified the respondent justices from entering

upon the particular inquiry in Dacey. Having no

power to enter upon the inquiry, they lacked

jurisdiction.

-4]-

(c) "[ Jurisdiction ] is the right of a judge to

pronounce a sentence of the law On a case or

issue before him (emphasis added). In re

Ferguson, 9 Johns N.Y. 239; Hopkins v.Com.,

3 Metc. (Mass.) 46l.

The statute said that the justices had no

right to act on the particular case before them.

Lacking that right, they lacked jurisdiction over

the particular case before them.

(d) "[Jurisdiction] is the right to adjudicate

concerning the subject matter in the given case

(emphasis added), '' Reynolds v. Stockton, 140

254, 268, ll Sup.Ct. 773, 35 L ed. 716.

In the "given case" here involved, Dacey

the justices were prohibited by statute from

sitting in judgment, and being prohibited, they

lacked ''the right to adjudicate, '' meaning that

they lacked jurisdiction.

(e) "Jurisdiction" is authority to decide the

case either way (emphasis added). '"' The Fair v.

Specialty Co.,228 U.S. 22,25, 33 Sup. Ct. 410, 57

L. ed. 716

In the matter here at issue, the justices

were by law denied the right to decide the case

either way. Thus, according to the Supreme

Court's standards, they lacked jurisdiction.

(f) "No agrec.nent between individuals can

rules made under a statute, forbidden to do

(emphasis added)."' 1896 1.0.B.35

Here we are told that if a statute forbids

a judge to perform an act, no "agreement"

(e.g.one purporting to provide a remission of

dues)can empower him to perform that act.

If the Appellees were not empowered to per-

form the act of sitting in judgment on the ap-

peal in Dacey, they lacked jurisdiction in the

matter. Acting, they acted without jurisdiction.

(g) [Jurisdiction] is the power to hear,

determine and adjudicate (emphasis added). "'

76 SD 210 75 NW 2d 641, 644.

The justices obviously could not have had

jurisdiction in Dacey, for they were expressly

deprived by statute of the "power to hear, "a

case in which they were among the defendants

liable to contribute to the damages and costs.

Being deprived of that right, they lacked juris-

diction.

In the face of this wealth of authoritative

opinion that the Appellees lacked jurisdiction in

performing the act of presiding on Dacey, they

cannot claim immunity from the consequences

of that illegal act. (Pierson v.Ray, 386 S.Ct.

547 (1967)

In Bradley v. Fisher, 13 Wall. 335, 347

20 L Ed. 646 (1872), the court held that:

"Where there is clearly no jurisdiction

over the subject matter, any authority

exercised is a usurped authority, and for

the exercise of such authority when the

want of jurisdiction is known to the judg¢

no excuse is permissible (emphasis

added). "

-43-

In Gregory v. Thompson, 500 F.2d 59

(1974), too, the Court held that "an exception

to the sweeping cloak of immunity" exists for

acts done in "the clear absence of jurisdiction. "'

The Appellees had full knowledge of the Connec-

ticut statute which precluded their sitting on

Dacey. They chose to proceed in ''the clear

absence of jurisdiction, '' and they cannot now

claim immunity for their illegal act.

In Rhodes v. Houston, 202 F.Supp. 624

(1962), it was held that there is no judicial im-

munity where a judge acts in the clear absence

of jurisdiction, as was the case with these re-

spondent justices who had been denied process

jurisdiction by action of a State statute.

In Franklin v. Meredith, 386 2d 958(1967),

the court held that a judge accused of corrupt or

malicious conduct in connection with acts not

within his judicial discretion has no immunity.

The acts of which these justices stand accused

were not within their official discretion, and

therefore they have no immunity.

In Muller v. Wachtel, 345 F.Supp. (1972)

it was held that a State court justice is not im-

mune from liability under the Civil Rights Act

in the presence of allegations that he acted

beyond his discretion, as did these justices.

In Gregory v. Thompson, supra, too, it

was held that a judge enjoys no immunity from

suit for acts performed administratively. The

decision of the Appellees to preside on Dacey

was an administrative, as distinguished from

a judicial one.

~44-

It is clear that the court convened by the

five justices in Dacey was illegally and im-

properly constituted and that the judgment of

that court was, accordingly, without validity.

6. DID THE DISTRICT COURT ERR IN DIS-

MISSING THE COMPLAINT AGAINST THE

FIVE STATE JUSTICES ON THE GROUNDS

OF JUDICIAL IMMUNITY WITHOUT DETER-

MINING WHETHER THEY HAD ACTED UN-

CONSTITUTIONALLY BY PRESIDING WHEN

THEY WERE DISQUALIFIED BY STATE LAW

FROM DOING SO, OR WHETHER THEIR

AC TIONS HAD BEEN CARRIED OUT IN FUR-

THERANCE OF A CONSPIRACY WITH FEL-

LOW -MEMBERS OF THE CONNECTICUT BAR

ASSOCIATION TO DEPRIVE PLAINTIFF

DACEY OF HIS RIGHT TO DUE PROCESS, i.e.

AN IMPARTIAL TRIBUNAL AS MANDATED

IN PIERSON V.RAY

Article II of the Constitution provides

that "judges, both of the supreme and inferior

courts shall hold their offices during good be-

havior.'' Deliberate violation of the fundamen-

tal constitutional right of a citizen to a fair

and impartial tribunal cannot be construed as

"good behavior'' on the part of a judge. Accord-

ingly, since in the course of depriving Dacey

of his constitutional rights, the justices engaged

in a course of conduct which could not be char-

acterized as "good behavior, ''they are now sub-

ject to removal from office. But how is that

removal to be accomplished if the appropriate

U.S. District Court declines to examine their

conduct on the grounds that they enjoy immu-

nity from suits for damages? In what forum

wy #

is injunctive relief and the impropriety of their

acts to be determined, if not in the U. S. Dis-

trict Court?

When a President of the United States

was charged with improprieties, he was im-

mune from arrest and conviction -- but he was

not immune from an investigation to disclose

the fact of his wrong-doing, or from impeach-

ment and removal. The emphasis was upon un-

covering the extent and circumstances of his

crime, not on the nature of his punishment. The

mere fact that a man cannot be punished should

not be a deterrent to an investigation and cor-

rection of what he has done.

The five justices in this action have

been guilty of wrongdoing, too, and even if the

courts below believe that their judicial robes

protect them from a claim for money damages,

they cannot rule that they may not suffer injunc-

tive restraint and public disclosure of their acts.

The courts below cannot rule that they enjoy

immunity from being found out.

It is the nature of a course of action

which determines whether or not it is wrong,

not the identity of the person acting. A citizen

who is prepared to support a charge that he has

been deprived of his constitutional rights is

entitled to have the facts of his complaint ex-

amined in a court of law and a determination

made as to whether or not his complaint is a

valid one. Whether any person or class of

persons is or is not immune from a suit for

damages is beside the point, which is that the

citizen is entitled to have the fact of the viola-

tion examined and placed in the record, and ap-

propriate injunctive relief granted. If there

-46-

has been a violation of the law, someone's

claimed immunity from punishment is no ex-

cuse for sweeping the violation under the carpet

to hide it from public view. This country has

had its fill of cover-ups in high places. For

courts make themselves parties to such a cover-

up is unthinkable.

This Court should consider thoughtfully

the importance of maintaining the public's faith

in the judicial system.

7. DID THE ACTIONS OF THE FIVE

STATE JUSTICES IN DEPRIVING PETITIONER

DACEY OF DUE PROCESS CONSTITUTE A

VIOLATION OF TITLE 18 U.S.C.SECTIONS

241 and 242 AND THUS MAKE AVAILABLE TO

DACEY CIVIL RELIEF UNDER THE CIVIL

COUNTERPART, TITLE 42 U.S.C.SECTIONS

1983 AND 1985?

Title 18 U.S. Code Sections 241 and 242,

make it a criminal offense to deprive a citizen

of the rights secured to him by the Constitution

including the right to due process. A fair trial

before an impartial tribunal is implicit in the

concept of due process. The five justices de-

nied petitioner Dacey the right to such an im-

partial tribunal and forced him to rely upon the

judgments of persons inseparable from a party

to the action. Thus, they violated Title 18

U.S. Code Section 241 in that they violated

Dacey's civil rights, and Section 242 in that

they enteral] into a conspiracy, the operative

instrument of which was the "'special resolu-

tion'' negotiated with the Board of Governors

of the Defendant Bar Association, to deprive

Dacey of his civil right to an impartial tribunal.

In the course of carrying out the deprivation of

Dacey's civil right to due process, the justices

deliberately and flagrantly violated Section

51-39 of the General Statutes of Connecticut

and Canon 3 of the Code of Judicial Conduct.

In Mayberry v. Penna., 95 S.Ct. 499, this

Court held that an impartial tribunal is essen-

tial to the operation of due process. It is be-

yond question then, that the justices violated

Sections 241 and 242, as well as the laws of

the State of Connecticut which laws they had

taken an oath to uphold. In U.S. v.Price,

86 S.Ct. 1152, 1157, Footnote 7, it was held

that Title 42, U.S. Cade, Sections 1983 and

1985 are the civil counterparts of Title 18

U.S. Code Sections 241 and 242. Accordingly,

since the five justices had violated Sections 24l

and 242, it follows that they were in violation

of Sections 1983 and 1985. In so doing, they

boldly challenged the Constitution's guarantees

of due process.

8. DID THE DISTRICT COURT ERR IN NOT

GRANTING PETITIONER DACEY INJUNCTIVE

RELIEF FROM THE JUDGMENT OF THE

MEMBERS OF THE ILLEGALLY-CONSTITU -

TED CONNECTICUT SUPRBME COURT?

Legal authority and precedent both con-

firm that the actions of an improperly-constitu-

ted court are without validity. In the section on

"Constitutional Law" in Lord Halsbury's Law

of England (1955) Vol.2, p. 67, it is stated:

"Bias By Interest: It is an elementary

principle that no man shall be judge in

his own cause. Therefore, where per-

sons who have a direct interest in the

-48-

subject matter of an inquiry before an

inferior tribunal take part in adjudicat-

ing it, the tribunal is improperly con-

stituted and is without jurisdiction, and

the court will grant an order of prohibi-

tion to restrain it from adjudicating, or

an order of certiorari to quash a deter-

mination arrived at by it. Any pecuniary

interest, however small, in the matter

in dispute, disqualifies a person from

acting as judge (emphasis added). "'

Title 28 U.S. Code Section 2283, as

adopted in 1948, provides, inter alia:

"A court of the United States may not

grant an injunction to stay proceedings

in a State Court except as expressly

authorized by Act of Congress (emphasis

added)...."'

In his authoritative work, Law of Federal

Courts (1976) Charles Alan Wright has written:

"In 1970 the Supreme Court rejected the

notion that the statute states only a rule

of comity. Speaking through Justice

Black, the Court held that the statute is

'an absolute prohibition against enjoining

state court proceedings unless the injunc-

tion falls within one of three specifically

defined exceptions (emphasis added). '

Atlantic Coast Line R.Co. v. Brother-

hood of Locomotive Engineers, 1970

90 S.Ct. 1739, 1743, 398 U.W. 281, 286,

26 L Ed, 2d 234.

"The first of the exceptions to Section

2283 is 'as expressly authorized by Act

-49-

of Congress. ' This does not mean that the

Act of Congress must refer in terms to

Section 2283. It is surely enough that it

specifically says that an injunction may

be granted against a proceeding in a State

Court. Probably it is enough that the

Act of Congress permits a Federal Court

to stay any proceeding, though it does

not mention states specifically. In

Mitchum v. Foster, the Supreme Court

said that the test is 'whether an Act of

Congress, clearly creating a Federal

right or remedy enforceable in a Feder-

al Court of equity, could be given its

intended scope only by a stay of a state

court proceeding. 92 S.Ct.at 2160, 407

U.S. at 238.

"Applying that test the Court resolved

[the question] by holding that an action

under the civil rights statute, 42 USCA

Section 1983, comes within this exception

_to the Anti-Injunction Act (emphasis

added). "

"What if the action of the state officer is

beyond his authority as a matter of state

law? It [is] settled...that action by a

state officer claiming to act under author-

ity of the state can be enjoined, even if

the state has not authorized such action.

Home Tel. & Tel. Co. v. City of Los

Angeles, 1913, 33 S.Ct. 312, 227 U.S.

278, St. L. Ed. 510."'

Clearly, the statute provides for Feder-

al Court injunctions against State Court pro-

ceedings in actions based upon Title 42 U.S.

-50-

Code Section 1983, which is the basis for the

instant action. As Wright observes: ''Today

it provides the basis for forcing states to

desegrate their schools."' Accordingly, the

U.S. District Court erred in ignoring the

request for injunctive relief to halt enforce-

ment of the judgment of the respondents'

illegally-constituted court which acted in

violation of State and Federal law to deprive

the Petitioner of due process.

In Mitchum v. Foster, 407 U.S. 242,

the Supreme Court ruled that:

"The very purpose of Section 1983 was to

interpose the Federal courts between

the States and the people, as guardians

of the people's federal rights -- to pro-

tect the people from unconstitutional

action under color of state law, ‘whether

that action be executive, legislative or

judicial (emphasis added).' Ex Parte

Virginia, 100 U.S. at 346. Congress

plainly authorized the Federal courts to

issue injunctions in 1983 actions by ex-

pressly authorizing a 'suit in equity' as

one of the means of redress. And this

Court long ago recognized that Federal

injunctive relief against a state court pro-

ceeding can in some circumstances be

essential to prevent great immediate and

irreparable loss of a person's constitu-

tional rights. Ex Parte Young, 209 U.S.

123; cf. Traux v. Raich, 239 U.S. 33;

Dombrowski v. Pfister, 380 U.S. 479."

In Baker v. Carr, 82S. Ct. 691, 364 U.S.

186 (1962), this Court overturned the decision

aii.

of the Tennessee State Courts in a reapportion-

ment case. In Shepard v. Maxwell,384 U.S. 333,

86 S.Ct. 1966, Dr. Sam Shepard had been sen-

tenced by a State Court Judge in Ohio who per-

mitted outrageous pre-trial publicity and be-

havior of the press in the courtroom and out

that prejudiced the opportunity for Shepard to

have a fair trial. Nine years after Shepard

was imprisoned and long after his Ohio appeal

rights had expired, the sentence of the State

Court judge was overturned. Shepard was re-

leased by the U.S. District Court for the Fed-

eral District of Ohio on habeas corpus, and the

State Court was ordered by the Federal judge

to re-try Shepard within 60 days or set him

free. The Sixth Circuit overturned that deci-

sion, but the Supreme Court upheld the District

Court.

In Shaw v. Garrison, C.A. La. 1973, 467

F 2d 113, a U.S. District Court judge fashioned

relief for Shaw, requiring the State Court and

prosecutors to stop prosecuting Shaw. This

decision was upheld by the Fifth Circuit.

The complete power of a U.S. district

judge over any state officer when a constitution-

al question is involved was clearly stated in

Ex Parte Virginia, 100 U.S. 346 shortly after

the Fourteenth Amendment and the Civil Rights

Act of 1871, now Title 42 U.S. Code Sections

1983 and 1985.

United States District Courts have had

power over State Courts ever since the ratifi-

cation of the Constitution, that power being

derived from the supremacy clause of the

United States Constitution. The power has

been spelled out in the "all-writs" act, Title

28, U.S. Code, 1651.

-52-

In Gruman v. Raymond and Betts, | Conn.

40, 1814, the Connecticut Supreme Court ruled

that:

"There is no process sanctioned in law

in which a disqualified judge may serve .

on the bench. Where there is want of

jurisdiction over the cause, it is the

same as though there was no court. It

is coram non judice."

In the instant action against the disquali-

fied justices, it was clear that when they sat

on the appeal of Dacey v. Connecticut Bar

Association, "there was no court" and the Dis-

trict Court erred in not granting Petitioner

Dacey injunctive relief from the judgment of

that non-court.

AS TO THE RESPONDENT UNITED STATES .

ATTORNEY DORSEY:

9. DID TITLE 42 U.S.C.SECTION 1986

REQUIRE RESPONDENT DORSEY TO PRE-

VENT OR AID IN PREVENTING THE DEPRI-

VATION OF DACEY'S CONSTITUTIONAL

RIGHT TO AN IMPARTIAL TRIBUNAL?

Title 42, U.S. Code, Section 1986 pro-

vides, inter alia:

"Every person who, having knowledge

that any of the wrongs conspired to be .

done, and mentioned in Section 1985 of

this title, are about to be committed,

and having power to prevent or aid in

preventing the commission of the same,

-53-

neglects or refuses so to do, if such

wrongful act be committed, shall be

liable to the party injured or his legal

representatives, for all damages caused

by such wrongful act, which such person

by reasonable iligence could have pre-

vented."

Section 1985 referred to above, provides

that if persons act in concert to deprive another

of his constitutional right to due process(e.g.

by denying him an impartial tribunal) they have

committed a tort, or injury, against him. Since

Dorsey was the U.S. Attorney in the District of

Connecticut when the five members of the Con-

necticut Supreme Court violated the Connecti-

cut law against their sitting on an appeal of a

case in which they had a material interest, as

well as Sections 1983 and 1985, Dacey filed a

criminal complaint with Dorsey about these

violations and asked Dorsey to investigate them

and to take appropriate action to prevent fur-

ther erosion of Dacey's due process right to

an impartial tribunal. Dorsey refused to in-

vestigate or to take any such action, and thus

became liable to Dacey under Section 1986.

It is particularly significant that he did

not even investigate, which conduct constituted

a refusal to carry out his investigative function

as distinguished from his prosecutorial func -

tion. He had a staff of 25 attorneys, as well

as the facilities of the Federal Bureau of Inves-

tigation. Had he made a proper investigation

and then advised the justices and the Bar Assoc-

iation that they appeared to be about to violate

Dacey's civil rights, it is likely that such a

point of view expressed by the United States

Attorney would have deterred them from their

illegal course. He chose not to do this, how-

ever.

-54-

10. DID THE REFUSAL OF U.S. ATTORNEY

DORSEY TO INVESTIGATE DACEY'S CHARGES

THAT THE FIVE STATE JUSTICES HAD EN-

GAGED IN CRIMINAL VIOLATIONS OF TITLE

18 U.S. CODE, SECTIONS 241 AND 242, AND

CIVIL VIOLATIONS OF TITLE 42 U.S. CODE

SECTIONS 1983 AND 1985 CONSTITUTE A

VIOLATION BY HIM OF TITLE 42, U.S. CODE

SECTION 1986, FROM WHICH HE HAD NO

PROSECUTORIAL IMMUNITY AND IF IT DID

CONSTITUTE SUCH A VIOLATION BY HIM

SHOULD NOT THE DISTRICT COURT HAVE

GRANTED DACEY'S PLEA FOR INJUNCTIVE

RELIEF FROM DORSEY'S CONTINUING VIO-

LATION ?

In Williams v. Hilliard, F 2d_,CA6,

1975, 2 plaintiff successfully sued a prosecutor

for damages on the grounds that he had wrong-

fully exercised his "discretion" by choosing not

to disclose the existence of an FBI report re-

futing evidence he subsequently introduced and

which led to a conviction, later reversed. In

the same action, damages were awarded again-

st another official, a state investigator who had

acted on the prosecutor's instructions. In

Imbler v. Pachtman, 47 L.Ed 2 128, this Court

asserted: 'We would not grant [a prosecutor ]

absolute immunity from suits for violating pre-

existing constitutional disclosure requirement

if he committed these violations in bad faith. "'

In the matter here at issue, it will be for the

jury to decide whether the Defendant exhibited

bad faith or simply gross incompetence.

"A prosecutor who, while acting within

the scope of his duties in initiating and prose-

cuting a case, wilfully deprives the accused

-55-

of his constitutional rights is subject to crimin-

al punishment under 18 USCS 242, which makes

it a crime for a person, acting under color of

law, to deprive another of any right protected

by the Constitution or laws of the United States,

and is subject to professional discipline and

disbarment. " (U.S. Supreme Court Digest,

Lawyers' Edition, Civil Rights, Section 12.5)

In Tenney v. Brandhove, 341 U.S. 367,

98 L ed 1019, (1951) Mr. Justice Douglas said:

"If a committee departs so far from its

domain as to deprive a citizen of a right

protected by the Constitution, I can

think of no reason why it should be

immune, "

In Gittman v. Bolsinger, USDC, E. Dist.

of Penna. 1971, unreported, it was ruled that

prosecutors do not have blanket immunity for

their discretionary acts, if these acts deprive

anyone of his constitutionally-guaranteed rights,

privileges or immunities.

In Bivens v. Six Unknown Agents of the

Federal Bureau of Narcotics, 29 L Ed 2d 619,

the U.S. Supreme Court held that a violation of

the Fourth Amendment's command against

unreasonable searches and seizures by a Fed-

eral agent acting under color of Federal author-

ity, gave rise to a Federal cause of action for

damages consequent upon the agent's unconsti-

tutional conduct. No agent of the state or

federal government is specially privileged in

carrying out his duties. All are enjoined by

the Civil Rights statutes to act constitutionally,

and act otherwise a their peril.

-56-

A citizen who files a criminal complaint

supported by facts is entitled to have that com-

plaint examined. It might not have been neces-

sary for Dorsey to act in his prosecutorial ca-

pacity -- if he made known to the justices his

view that they were in danger of violating the

law, it is likely that such an opinion from the

U.S. Attorney would have deterred them in

their plan. Instead, he ignored the written

complaint completely for a full month, declin-

ed to discuss it when Dacey sought to press

the matter in person, and ended by doing

nothing.

Having established the fact of his viola-

tion of Section 1986, the District Court should

have granted Dacey's plea for injunctive relief

from Dorsey's continuance of his refusal to

"prevent or aid in preventing" the deprivation

of the Petitioner's civil rights.

CONC LUSION

For the foregoing reasons, it is respect-

fully submitted that the Petition for Writ of

Certiorari should be granted and the cases

summarily reversed and remanded to the

United States District Court for action in ac-

cordance with Connecticut General Statute 51-39

and under the authority of Title 28 Section 1651.

Respectfully submitted,

Norman F. Dacey

Petitioner Pro Se

3200 Park Avenue

Bridgeport, Conn. 06604

(203) 374-5226

oST<

APPENDIX

Index to Appendix

Complaint in Dacey v. House, et al

U.S. District Court's Ruling on De-

fendant's Motion to Dismiss on

Dacey v. House, et al

Opinion of the U.S. Court of Appeals

for the Second Circuit on Dacey v.

House, et al

Ruling by the U.S. Court of Appeals

for the Second Circuit on Petition-

er's Motion for Rehearing in

Dacey v. House, et al

Comptaint in Dacey v. Dorsey

U.S. District Court's Ruling on De-

fendant's Motion to Dismiss in

Dacey v. Dorsey

Opinion of U.S. Court of Appeals

in Dacey v. Dorsey

-58-

C-1

D

E-1

F-1

G-l

Order of the Supreme Court of the

United States on Petitioner's

request for an Extension of

Time within which to file Peti-

tion for Writs of Certiorari on

both cases above.

Letter of Associate Justice John

P. Cotter to Norman F. Dacey

dated March 17, 1977.

Reprint of newspaper article in

the New Haven Register,

March 14, 1978.

Ruling of District Court in

Dacey v. Naruk

-59-

IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

NORMAN F, DACEY :

Plaintiff >: CIVIL ACTION

> NO.B76-146

Vv. $

CHARLES §S., HOUSE, :

ALVA P, LOISELLE, :

JOSEPH w. BOGDANSKI,

JOSEPH S. LONGO and

WILLIAM P, BARBER

Defendants

VERIFIED AMENDED COMPLAINT

1, This is an action brow ht to Title 42,

Sections 1983 and 1985 of the United States Code

to redress the deprivation of rights, privileges

and immunities secured to the Plaintiff by the

Constitution and laws of the United States.

2. Jurisdiction is conferred on this Court

by 28 U.S.C. Section 1343,

3. Plaintiff Norman F. Dacey is a citi -

zen of the United States and of the State of Con-

necticut and a resident of the Town of Southbury

Connecticut. |

4. Upon information and belief, it is al-

leged that the Defendants Charles S. House,

Alva P. Loiselle, Joseph W. Bogdanski, Joseph

S. Longo and William P. Barver are each citi-

zens of the United States and State of Connecti-

eAl-

cut.

5. The Defendant Charles S. House is

and was at all times relevant hereto the Chief

Justice of the Supreme Court of Connecticut.

6. The Defendants Alva P, Loiselle,

Joseph W. Bogdanski, Joseph S. Longo and

William P. Barber are and were at all times

relevant hereto Associate Justices of the Su-

preme Court of Connecticut.

7. All of the Defendants are and were at

all times relevant hereto dues-paying members

of a trade association or craft union known as

"The Connecticut Bar Association" an organi-

zation not known for the maintenance of high

ethical standards of conduct in its trade or

craft but rather one against many of whose in-

dividual members formal charges of illegal or

unethical business conduct have been filed in

literally thousands of instances in the past.

8. In 1966, the Plaintiff published a bock,

How To Avoid Probate, which explained in lay-

man's language the mechanics and advantages

of the inter vivos trust as a device for avoiding

the abuses of the probate system. In its pub-

lished review of the book, the American Bar

Association noted that the procedures explained

in it were identical with those set forth in the

ABA's training manual on the subject, and

found that the book ''serves a useful purpose. "

9. In 1967, the Connecticut Bar Assoc-

iation published a brochure attacking the Plain-

tiff and his book and containing statements

which became the anon a libel action

brought by the Plaintiff against the Associ-

ation. On June 13, 1974, in case No. 129807

(Norman F. Dacey v. The Connecticut Bar As-

sociation), a jury in Superior Court in the

State of Connecticut found that the Plaintiff

had been deliberately and maliciously libeled

by the Association and awarded him damages

of $60, 000.

10. On July 9, 1974,the Connecticut Bar

Association "appealed" the said verdict and the

judgment thereon to the Defendant dues -paying

members of the Association acting under color

of law in their capacity as Justices of the Su-

preme Court of Connecticut.

11. On or about October 24,1974, the

Defendant Charles S. House acknowledged to

the Plaintiff through his attorney that all of the

Justices of the Supreme Court of Connecticut

were members of the Connecticut Bar Associ-

ation and questioned whether such membership

status would be raised as an impediment to the

Court's hearing of the said appeal.

12. The Plaintiff responded by citing to

the Defendants Connecticut Statute 51-39 which

specifically prohibits any member of the bench

from sitting in judgment on any case in which

he has a pecuniary interest, or to the damages

or costs of which he may be called upon to con-

tribute. The Plaintiff also cited to the Defen-

dants the tradition of the law and the Canons of

Judicial Ethics which absolutely bar any mem-

ber of the bench from sitting in judgment on a

matter in which he has a financial or pecuniary

interest. Finally, the Plaintiff drew the atten-

tion of the Defendants to his inalienable right

-A3-

under the Constitution of the United States

to a fair trial - that is, to a hearing before an

impartial and unbiased court.

13. The endorsement and approval of the

Connecticut Bar Association was an absolute

prerequisite to the appointment of each of the

Defendants to be a Justice of the Supreme Court

of Connecticut. Since the Association's found-

ing, no individual not a dues-paying member

has ever achieved a seat on the Court. No in-

dividual can hope for appointment or reappoint-

ment to the Court without the approval of the

Judiciary Committee of the Connecticut General

Assembly, every member of which is a member

of the Connecticut Bar Association. The future

reappointment of each of the Defendants as a

member of the Court is absolutely dependant

upon the continued good will of the Connecticut

Bar Association. Aside from their liability

to contribute to the damages and costs involved

in the Plaintiff's successful action against the

Association, then, the Defendants were and are

absolutely beholden to the Connecticut Bar

Association, a party to the litigation, for their

very jobs in the future. It was clearly evident

that a fair hearing before the Justices of the

Supreme Court of Connecticut was an impossi-

bility, and the necessity for their disqualifica-

tion was obvious to all.

14. Precedent calls for the disqualifica-

tion of one or all of the members of a court

which is a litigant. In Brooklyn Bar Associa-

tion v. King's County Bar Association (258 App.

Div.920, 16 N. Y.S.(2nd)751 (2nd Dept. 1939) the

entire court was disqualified as members of

-A4-

the plaintiff bar association. No special exemp-

tion applies to Supreme Court Justices: "[They]

have from the earliest times disqualified them-

selves from cases involving direct pecuniary in-

terest. The practice was initiated in 1813 by Jus-

tice Livingston in Livingston & Gilchrest v.

Maryland Insurance Company, and immediately

followed by Chief Justice Marshall in Fairfax's

Devisee v. Hunter's Lessee, decided the same

way.'' (The Yale Law Journal, Vol. 5, 1941,

p.609) In the 1974 case of Goldfarb v. The

Virginia Bar before the Supreme Court of the

United States, Mr. Justice Powell disqualified

himself on the grounds that he had once been a

member of the Defendant Bar. In the case in-

volving the Plaintiff and the Connecticut Bar As-

sociation, it was immediately apparent that it

would be patently improper for five current,

dues-paying members of the Defendant Associa-

tion to sit in judgment.

15, Precedent indicates that judges who

are members of bar associations are unable to

divorce themselves from prejudice in cases in-

volving such associations. In connection with

the publication of How To Avoid Probate in 1966,

the New York County Lawyers Association

brought an action in New York charging the

Plaintiff with criminal contempt of court for

having written the book. The action, tried in

the lower and appellate courts, was finally

struck down overwhelming!y (6-1) in the New

York Court of Appeals. Altogether during the

course of the hearings a total of 13 judges sat

on the case, of whom six were members of the

New York County Lawyers Association and

seven were not. Significantly, all six judges

who were members of the Association found

the Plaintiff guilty, while the seven non-mem-

ber judges found in the Plaintiff's favor.

16. The Yale Law Journal in a 1941 arti-

cle on the disqualification of judges, noted that ‘

"it is now almost universal practice for judges

not to sit in cases involving corporations in

which they own stock. '"' The Connecticut Bar As-

sociation is a non-stock corporation, and the De

fendants are the equivalent of stockholders in

that corporation. The ''non-stock" character of

the organization has no significance, being sim-

ply a device hopefully to evade liability in an

action such as the one in which it has been

found guilty of libel and ordered to pay damages.

The simple fact is that the Connecticut Bar As-

sociation is a corporation which has assets.

The owners of those assets are the members a

the Association -including the Defendants - and

it is the owners of a corporation whom law and ,

custom debar from sitting in judgment on liti-

gation involving the corporation.

17. The Seventh Amendment to the Con-

stitution oi the United States provides that "in

suits at common law...no fact tried by a jury

shall be otherwise re-examined in any court m

the United States, other than according to the

rules of common law."' The rules of common

law provide that every citizen shall have the

right to a fair trial - "fair'' meaning unbiased

and impartial.

18. When the Plaintiff's action against the

Connecticut Bar Association was tried in Su-

perior Court in 1974, it was elementary that no

-A 6-

member of the Defendant Association was per-

mitted to serve on the jury - indeed, even a

distant relationship with an Association mem-

ber would have barred a prospective juror. If

no Bar Association member or relative of such

member, because of obvious bias and personal

interest, could have been permitted to serve as

a juror, it followed that for the same reason no

member of the Association could have been per-

mitted to sit on the bench in judgment on the

case,

19. Citing all of the foregoing, on Novem

ber 3, 1974, the Plaintiff formally moved that

each of the Justices of the Supreme Court of

Connecticut, the Defendants herein, disqualify

himself from sitting on the appeal in the afore-

mentioned action.

20. On November 12, 1974, in utter dis-

regard of legal propriety and the Constitutional

rights of the Plaintiff, the Defendants rejected

such motion and announced that they would hear

what was, to all intents and purposes, their

own appeal.

Zl. Well aware that their announced

course of action would constitute a flagrant

violation of Section 51-39 of the Connecticut

Statutes, the Defendants thereafter on January

20,1975 conspired with their follow members

of the Connecticut Bar Association to cause

the passage by the Association's Board of

Governors of a special resolution granting to

any judge or justice who had been or who

might be called upon to sit in judgment in the

case of Norman F. Dacey v. The Connecticut

oh Te

Bar Association a remission of his annual dues

equal to the amount of any damages which he

might be called upon to contribute in settlement

of the action - a transparent attempt at evading

the spirit of a state statute enacted specifically

to assure fair and impartial triats. Curiously,

the faultily-drawn resolution failed to exempt

the Defendants from the financial responsibility

for contributing to the not-inconsiderable costs

of the action.

22. On December 2, 1975, in finai disre-

gard of an oral plea by the Plaintiff's counsel

that the action proposed to be taken by the De-

fendants in flagrant violation of the state statute

and of the Plaintiff's rights under the Constitu-

tion of the United States would impose an iner-

adicable stigma upon the American Bench and

Bar, the Defendants estopped all further argu-

ment and proceeded with the "hearing" of their

own appeal.

23. On April 6, 1976, the Defendants,

reasserting their contention that there had ex-

isted no impediment to their hearing of the ap-

peal, reversed the decision handed down by the

jury in Superior Court in favor of the Plaintiff

and remanded the case for a new trial.

24, The Defendants' ruling that they and

their fe llow-members of the Connecticut Bar

Association were "not guilty" of the charges

against them embodied in the Superior Court

jury's findings of fact, was not in fact the de-

cision of a court of law but simply the conten-

-A 8-

tion of one of the parties to the litigation, and

in so ruling the Defendants made a mockery of

justice and the judicial system in America. At

‘a time when too many individuals in high places

in government, including an inordinate number

engaged in the practice of law, have been found

to have violated the civil rights of citizens of

the United States, the Plaintiff asserts that a

line must be drawn somewhere, and charges

that in carrying out the acts here complained

of, the Defendants have over-stepped that line.

In an editorial condemnation of the Defendants'

action, a leading Connecticut newspaper,

The New Haven Register, has asked: 'Who

Judges The Judges?" Another, the Waterbury

Republican, has observed: "If ever there was

a case involving an individual's constitutional

rights, it is this one."' The action of the De-

fendants in depriving the Plaintiff of one of the

most fundamental and cherished rights of every

American citizen - the right to a fair trial gur-

anteed by the Constitution of the United States -

has thus outraged the American sense of justice

and aroused indignation among members of the

public which regards such action as an arrogant

challenge to the Constitution which the Defen-

dants had taken a solemn oath to defend,

25. The Defendants' violation of the

Plaintiff's rights under the Constitution of the

United States is echoed by their violation of

Connecticut Statute 51-39 which declares that

"when any judge may be liable to contribute to

the damages, costs or expenses of any...pro-

ceeding, or when he may receive a direct pecu-

niary benefit by the determination thereof, he _

shall be disqualified to act."' This legal precauw

-A 9-

LO

tion is duplicated in the statutes and decisions

of other states, as well. In New Mexico, for

example, it has been held that ''a judge, even

though blessed with all of the virtues any judge

ever possessed, shall not be permitted to exer-

cise judicial power to determine the fact of his

own disqualification, not because the judge in

doing so would attempt to act otherwise than

conscientiously, but because...it is not fitting

for him to make such an attempt, and it is bet-

ter that the courts shall maintain the confidence

of the people than that the rights of judge and

litigant be served. '' In Pennsylvania disquali-

fication is unquestioned, it being settled that

"due consideration should be given by [the

judge] to the fact that the administration of

justice should be beyond the appearance of

unfairness, "'

26. "Where investigation of the facts

creating bias is necessary, the judge's conduct

and associations usually become the focal point of

consideration. Since the judge's statements are

the clearest indication of his attitude, most

courts have held that judicial condemnation of

a litigant before trial is begun or during its

course disqualifes the judge from trying the

case, ''(The Yale Law Journal, Vol. 5,194l, p.

609) In 1965, the same Connecticut Bar Assoc-

iation initiated an action which resulted in the

issuance of an injunction prohibiting the Plain-

tiff, incidental to his professional estate plan-

ning practice, from advising on the establish-

ment of trusts as a means of achieving probate

avoidance. The Plaintiff's appeal to the Su-

preme Court of Connecticut to lift the injunction

was rejected in a decision in which the Court

-A 10-

gratuitously applied the term "sordid" to the

Plaintiff's activities, despite the fact that (1)

there was nothing in the testimony at the hear-

ing which reflected in any way upon the Plain-

tiff's character or motives, (2) the action was

limited strictly to the technical question of

whether what the Plaintiff had done had in fact

constituted the practice of law, (3) a parade of

witnesses testified without exception that what

the Plaintiff had done had been done well and

to the complete satisfaction of the witness, and

(4) the Plaintiff had charged not a penny for the

service he had rendered. When the Plaintiff's

counsel petitioned the Court to strike the ap-

probrious and unjustified word "sordid" from

its decision, the Court refused to do so. Cloak-

ed in their judicial immunity, the members of

the Court were free to thus libel the Plaintiff ,

leaving him without legal recourse to recover

from them for the damage done to his reputa-

tion. The Plaintiff's only recourse was to run

a full-page advertisement in Connecticut new-

papers expressing his opinion of the Court and

its decision. That such action was in every

respect proper and dignified was indicated by

the fact that the Plaintiff was immediately in-

vited to lecture at the University of Connecti-

cut Law School on the ramifications of the case.

All this was obviously painful to the members

of the Supreme Court of Connecticut. That the

Plaintiff's rebuke still rankled the Court during

its consideration of the recent appeal is evident

from the fact that in their decision reversing

the jury verdict finding them and their fellow-

members of the Connecticut Bar Association

guilty of libeling the Plaintiff, the Defendants

made petulant reference to the decade-earlier

-A ll-

advertisement and to what they described as

its 'acrimonius language, " and recalled that it

had quoted a classic denunciation of lawyers

and judges written by Jonathan Swift in his book

Gulliver's Travels. If "most courts have held

that judicial condemnation of a litigant before

trial is begun or during its course disqualifies

the judge from trying the case, "' these Defen-

dants were obviously disqualified from sitting

on the appeal.

27. The Defendants and their fellow-

members of the Connecticut Bar Association

who co-sponsored the libelous attack upon the

Plaintiff of which the Superior Court jury

found them guilty publicly predicted a decade

ago that persons making use of the forms for

probate av oidance contained in the Plaintiff's

book, How To Avoid Probate, faced disastrous

legal complications, whereas in fact during the

entire ten-year period since initial publication

of the book, there has been only a single record-

ed instance, in Texas, where one such form has

been legally contested - and in that instance the

succession of courts before whom the matter

was tried, including the Supreme Court of

Texas, ruled without exception in favor of the

legal validity of the form. That more than ten

million such forms have been successfully used

proves the hollowness of the predictions of the

Defendants and their fellow-members of the Con-

necticut Bar Association, and serves to support

the jury's findings that the Defendants and their

fellow-members libeled the Plaintiff maliciously

and without regard for the public interest. Their

participation in such condemnation of a litigant

before trial obviously disqualified the Defen-

-A 12-

dants from sitting on the case involving the

Plaintiff.

28. Title 42 USC, Section 1983, original-

ly passed as Section | of the Civil Rights Act of

1871, 17 Stat 13, reads: "Every person who,

under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Terri-

tory, subjects, or causes to be subjected, any

citizen of the United States, or other person

within the jurisdiction thereof to the deprivatim

of any rights, privileges or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress,"

The words "every person" in the law mem exact-

ly what they say. If the law intended to exempt

persons who were judges, it would have said so.

The law was enacted by the people through their

elected representatives, and in the United Sates

of ‘America the people, not the courts, are sov-

ereign. The courts are the servants of the

people. No cour’ aas the authority to suspend

the applicability of the law to its own members

or to the members of any other court. The Su-

preme Court of the United States has held that

immunity for judges can be justified only on the

grounds that "the burden of defending damage

suits brought by disappointed litigants would

contribute not to principled and fearless deci-

sion-making but to intimidation. " (Pierson v.

Ray, supra, at 554, 18 L Ed 2nd 288,87S Ct

1213) This action is not an attack upon any de-

cision of the Defendants but arises from the il-

legitimacy of their sitting as a court. It seeks

redress for injury done the Plaintiff as a result

of the Defendants' conspiracy to violate state

-A 13-

and federal law and their deliberate depriva-

tion of the inalienable rights of a citizen of the

United States. The Defendants are "persons"

within the meaning of 42 USC, Section 1983.

They have violated the law, and under its

terms are liable for damages. The United

States Supreme Court noted (in Imbler v.

Pachtman, US, 47 L Ed 2nd 128, 96S Ct) that

"liability in damages for unconstitutional or

otherwise illegal conduct has the very desir-

able effect of deterring such conduct. Indeed,

this was precisely the proposition upon which

42 USC,Section 1983 was enacted."

29. This arrogant and conspiratorial

misuse of legal authority by the Bench and Bar,

all under color of law, depriving the Plaintiff

of the rights, privileges and immunities guar-

anteed him by the Constitution and laws of the

United States, also violates Title 18, Section

242, of the U.S. Criminal Code which speci-

fies that ''whoever, under color of law, statute

or regulation, ordinance or custom, wilfully

subjects an inhabitant of any state to the depri-

vation of any rights, privileges or immunities

secured or protected by the Constitution or

laws of the United States...shall be fined no

more than $1,000 or imprisoned one year or

both, '' The deprivation of the Plaintiff's civil

right by the Defendants has thus been incident-

al to the Defendants' commission of a federal

crime. The United State Supreme Court re-

- cently held (Imbler v. Pachtman, US, 47 L Ed

2d 128, 96S Ct) that "judges may be punished

criminally for willful deprivations of constitu-

tional rights on the strength of 18 USC, Section

242,'' thus confirming that judges are not im-

A 14-

mune from liability for deliberate civil rights

violations.

30. Article II of the Constitution of the

United States provides that "judges, both of

the supreme and inferior courts, shall hold

their offices during good behavior." Deliberate

violation of the fundamental constitutional

rights of a citizen cannot be construed as

"good behavior" on the part of a judge. Accord-

ingly, since in the process of depriving the

Plaintiff of his constitutional rights the Defen-

dants engaged in a course of conduct which

could hardly be characterized as ''good be-

havior,’ they are now subject to removal from

office.

31. The degree to which the improper

action of the Defendants has worked to cause

the deprivation of the Plaintiff's civil rights

is indicated by the fact that he has been unable

to find any Connecticut attorney sufficiently

unintimidated by the fear of retaliation by the

Defendants in the course of his future practice

of law as to be willing to participate in the

filing of this Complaint.

WHEREFORE, the Plaintiff claims from

the Defendants:

1, Five Million ($5,000,000,00) Dollars

damages.

2. Five Million ($5,000,000. 00) Dollars

punitive damages.

3. Such other and further relief as the Court

deems fair and equitable.

-A 15-

Dated at Bridgeport, Connecticut

this l4th day of May, 1976.

/s/ Norman F. Dacey

Norman F. Dacey

-A l6-

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

NORMAN F. DACEY :

Plaintiff :

¥. : CIVIL NO,

: B-76-146

CHARLES S. HOUSE, :

ALVA P, LOISELLE, :

JOSEPH W. BOGDANSKI, :

JOSEPH S. LONGO and $

WILLIAM P, BARBER :

Defendants :

RULING ON DEFENDANTS' MOTION TO

DISMISS

Defendants, all the Justices of the Con-

necticut Supreme Court move to dismiss plain-

tiff's claim for failure to state a claim upon

which relief can be granted. F.R. Civ. P.

12 (b) (6).

I

Plaintiff, acting pro se, seeks damages,

pursuant to 42 U.S.C. § 1983 and 42 U.S.C. §

1985, for defendants' refusal to disqualify

themselves in an appeal from a $60, 000 jury

verdict in plaintiff's favor against the Connec-

ticut Bar Association (hereinafter ''CBA") on

June 13, 1974. Dacey v. Connecticut Bar Assn.

170 Conn. 520 (1976). The gravamen of plain-

tiff's complaint rests on the fact that at all

times during the course of the appeal, defen-

B-1

dants were dues paying members of the CBA

and as such would themselves be liable for a

pro rata share of the damage award ($16. 33

each), in violation of Conn. Gen. Stat. §

51-39, L/

During the pendency of the appeal, the

Reporter of Judicial Decisions fodtified both

parties that all the Justices of the Supreme

Court were members of the CBA and inquired

if either party intended to raise that issue as a

possible bar to their presiding on the appeal.

On November 3, 1974, plaintiff moved that the

Justices disqualify themselves. The Supreme

Court denied the motion on November 12, 1974.

On January 20, 1975, in an effort to avoid any

possible appearance of impropriety, the Board

of Governors of the CBA adopted a resolution

suspending the dues of any Superior Court

Judge and Supreme Court Justice who presided

at any stage of the plaintiff's case in an amount

equal to the pro rata share required by each

member of the CBA to be paid in satisfaction

of any money judgment. On April 6, 1976 the

Supreme Court reversed the decision and re-

trranded the case for a new trial.

II

This Court declines to reach the merits

of the underlying controversey because it finds

that the motion to dismiss for failure to state

a claim must be granted. It is unquestioned

that judges are absolutely immune from suits

for damages. This doctrine was well estab-

lished at common law, Bradley v. Fisher, 13

Wall 335 (1872), and has been preserved under

§ 1983. Pierson v. Ray, 386 U.S. 547, 554-

555 (1967). See also Imbler v. Pachtman, 424

B-2

U.S. 409, 418. 2/

Accordingly, the motion to dismiss is

granted.

Dated at New Haven, Connecticut, this

l6th day of February, 1977.

Robert C. Zampano

United States District Judge

FOOTNOTES

1/ Section 51-39 reads in pertinent part as

follows:

When there is so near a relationship between

any judge and any party in any proceeding in

court before him, as between father and son,

brothers or uncle and nephew, by nature or

marriage, or landlord and tenant; or when any

judge may be liable to contribute to the dam-

ages, costs, or expenses of any such proceed-

ing, or when he may receive a direct pecuniary

benefit by the determination thereof, he shall

be disqualified to act, except as herein provid-~

ed. No judge shall be disqualified to act in any

proceeding by reason of his being a member

of any ecclesiastical corporation, unless it is

a party ‘9 the action, nor in any proceeding

in which any town, city or borough is a party

or interested, by reason of his being an inhab-

itant thereof or liable to taxation therein or

by reason of his being related to any taxpayer

or inhabitant thereof. When any judge is dis-

qualified to act in any proceeding before him,

he may act if the parties thereto consent in

B-3

open court,

2/ Plaintiff reasons that because defen-

dants should have disqualified themselves pur-

suant to Conn. Gen. Stat. § 51-39 that they

were acting without jurisdiction and, therefore,

not cloaked with judicial immunity. See

Pierson, supra at 554. This rationale equates

disqualification with lack of jurisdiction, a

fallacious equation. Cf. Conn. Gen. Stat. §

51-42.

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City of

New York, on the twenty-eighth day of October

one thousand nine hundred and seventy seven.

Present: Hon Sterry R. Waterman,

Hon. Robert P. Anderson, Hon. Walter

R. Mansfield, Circuit Judges

Norman F, Dacey, :

Plaintiff-Appellant :

Vv :

Charles S.House, Alva P.

Loiselle, Joseph P. Bogdanski,

Joseph S. Longo and Wil'iam

P. Barber,

Defendants-Appellees

eeeee eee eee eeeeeeeeeeeeee eee eeeeeeeeeeeeee

eeeeeee ee eee eee eee eee eee e eee eee eeeeeeee .

77-7301

Appeal from the United States District

Court for the District of Connecticut

This cause came on to be heard on the

transcript of record from the United States

District Court for the District of Connecticut,

and was argued by appellant pro se and counsel

for the appellees.

ON CONSIDERATION WHEREOF, it is

now hereby ordered, adjudged and decreed

that the judgment of said District Court be and

it hereby is affirmed on the ground that the

case is governed by the well-established prin-

C-1

ciple that judges are absolutely immune from

suits for damages based on acts within their

jurisdiction, Pierson v.Ray, 386 U.S. 547,

554-55 (1967); Imbler v. Pachtman, 424 U.S.

409, 418 (1976); Bradley v. Fisher, 13 U.S.

(Wall) 335 (1871).

/s/ Sterry R. Waterman

STERRY R. WATERMAN

/s/ Robert P. Anderson

ROBERT P. ANDERSON

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court

of Appeals, in and for the Second Circuit,

held at the United States Court House, in the

City of New York, on the 28th day of

November, one thousand nine hundred and

seventy-seven.

Present: Hon. Sterry R. Waterman, Hon.

Robert P. Anderson, Hon. Walter R. Mans-

field, Circuit Judges

NORMAN F, DACEY

Plaintiff-Appellant

v. .

CHARLES S\ HOUSE, ALVA P

LOISELLE, JOSEPH P. BOG-

DANSKI, JOSEPH S. LONGO,

and WILLIAM P, BARBER

Defendants-Appellees

77-7301

A petition for a rehearing having been filed

herein by pro-se appellant,

Upon consideration thereof, it is ordered

that said petition be and it hereby is DENIED.

/s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF CONNECTICUT

NORMAN F, DACEY

CIVIL ACTION NO,

Plaintiff : B-76-190

Vv. :

: July 7, 1976

PETER C, DORSEY :

Defendant :

COMPLAINT

1. This is an action brought pursuant to

Title 42, Section 1986 of the United States Code

to redress the deprivation of rights, privileges

and immunities secured to the Plaintiff by the

Constitution and laws of the United States.

2. Jurisdiction is conferred on this Court

by Article l, Section 3 of the Constitution of the

United States, and by Title 28 U.S.C.Section

1343,

3. Plaintiff Norman F. Dacey is a citizen

of the United States and of the State of Connecti-

cut, and a resident of the Town of Southbury,

Connecticut.

4. Upon information and belief, it is al-

leged that the Defendant is a citizen of the

United States and the State of Connecticut.

5. The Defendant is and was at all times

relevant hereto United States Attorney for the

E-1

District of Connecticut.

6. On June 13, 1974, a jury in the Super-

ior Court of Connecticut at Bridgeport found

that the Connecticut Bar Association had mali-

ciously libeled the Plaintiff and awarded him

$60,000 damages. The Defendant Bar Agsoci-

ation appealed the decision to the Supreme

Court of Connecticut, the same consisting of

five justices, namely: Charles S.House, Alva

P.Loiselle, Joseph W.Bogdanski, Joseph S.

Longo and William P. Barber. All of the mem

bers of the said Court are and were members

of the Connecticut Bar Association and thus co-

defendants in the libel action.

Following are excerpts from an authorita-

tive article on the disqualification of judges

which appeared in the Harvard Law Review (79:

1435, May '66):

"The right to a trial before an impartial judge

is an unquestioned part of our concept of due

process of law....The fundamental principle

that a man may not be a judge in his own case

was recognized by the common law as early

as Coke's time. The English courts extended

the principle to judges who, while not named

as parties, had a pecuniary or proprietary

interest, even when the interest was quite re-

mote. In 1865, a frequently-cited dictum indi-

cated that there would be a disqualification

'wherever [sic ]there is a real likelihood that

the judge would from kindred or any other

cause, have a bias....When facts are alleged

which support an inference of bias, the judge

is disqualified even though in his own mind

and heart he may actually be completely im-

E-2

partial. Such a result is justified in part be -

cause a direct inquiry into the judge's state of

mind would be impracticable, even if possi-

ble....Even when a judge acts honestly, how-

ever, the presence of prejudice will distort

judgment, '"

The Plaintiff drew the attention of the five

members of the Court to the applicability of

Section 51-39 of the General Statutes of Connec-

ticut which expressly prohibits any judge from

acting in a matter in which he has pecuniary in-

terest or to the damages or costs of which he

may be called upon to contribute. The Plaintiff

also cited his constitutional right to a fair trial-

that is to a trial before an impartial and unbi-

ased court - and requested that the five justices

disqualify themselves forthwith.

7. Despite such a citation and request by

the Plaintiff, the five individuals thereafter con-

spired to deprive and did deprive the Plaintiff

of his constitutional right to such fair trial and

on December 2,1975, they conducted a hearing

on the Bar Association's appeal, reserving de-

cision,

8. On or about March l, 1976, the Plain-

tiff filed with the Defendant a formal Complaint

that the members of the Court appeared to be

about to deny him his constitutional right to a

fair trial and requested the Defendant to initiate

action to prevent such deprivation of the Plain-

tiff's civil rights.

9. Title 42 Section 1985 of the U.S. Code

provides that:

E-3

"...in any case of conspiracy set forth in this

section, if one or more persons engaged there-

in do, or cause to be done, any act in further-

ance of the object of such conspiracy, where-

by another is injured in his person or proper-

ty, or deprived of having and exercising any

right or privilege of a citizen of the United

States, the party so injured or deprived may

have an action for the recovery of damages,

occasioned by such injury or deprivation,

against any one or more of the conspirators

(emphasis added). "

A Section 1985 action has been instituted

in this Court by the Plaintiff charging the five

individuals with conspiracy to deny him his cm-

stitutional rights and seeking damages.

Title 42 Section 1986 of the U.S. Code

provides’

"Every person who, having knowledge that

any of the wrongs conspired to be done, and

mentioned in the preceding Section [1985 of

Title 42] are about to be committed, and hav-

ing power to prevent or aid in preventing the

commission of the same, neglects or refuses

to do, if such wrongful act be committed, shall

beliable to the party injured, or his legal rep-

resentatives, for all damages caused by such

wrongful act which such person by reasonable

diligence could have prevented; and such

damages may be recovered in an action on the

case; and any number of persons guilty of srh

wrongful neglect or refusal may be joined as

defendants in the action...."'

10. In his capacity of United States Attor-

ney, the Defendant was not only in a position to

E-4

"prevent or aid in preventing" the violation Dated at Bridgeport, Connecticut, this 7th

of the Plaintiff's civil rights, but it was also day of July, 1976.

his official duty to do so. Notwithstanding his —

full knowledge of the imminence of the violation, . ° /s/ Norman F, Dacey

Norman F. Dacey

he took no steps to preserve the Plaintiff from . ;

such intended violation, citing as a reason for ° ° 516-A Winship Drive

such failure the fact that he was a fellow-mem- Bridgeport, Conn. 06488

ber of the offending justices in the Connecticut Plaintiff

Bar Association.

Thereafter, on April 6, 1976, the five

offending justices of the Connecticut Supreme

Court bench officially confirmed and completed

their deprivation of the Plaintiff's civil rights

by announcing their formal rejection of his peti-

tion that they comply with State and Federal law

and disqualify themselves. They then reversed

the Superior Court jury's decision in the libel

action and remanded the case for re-trial. There- . :

upon, the Plaintiff again petitioned the Defen-

dant to perform his duty and to intervene to pre- . .

serve the Plaintiff's rights under the Consti-

tution. Despite such appeal, the Defendant wil-

fully refused or neglected to carry out his duty.

Such refusal or neglect constituted an action of

the specific kind for which Section 1986 is in-

tended to provide redress.

WHEREFORE, the Plaintiff claims from

the Defendant:

1. Five Hundred Thousand ($500, 000.00) Dol-

lars damages.

2. Five Hundred Thousand ($500, 000. 00) Dol-

lars punitive damages. ‘ .

3. Such other and further relief as the Court

deems fair and equitable.

E-5

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

NORMAN F. DACEY :

Plaintiff :

CIVIL NO.

v. : B-76-190

PETER C. DORSEY :

Defendant :

RULING ON DEFENDANT'S MOTION TO

DIS MISS

Defendant, United States Attorney for

the District of Connecticut, moves to dismiss

plaintiff's claim for failure to state a claim

upon which relief can be granted, F.R. Civ.

P. 12 (b) (6).

I

On March l, 1976, plaintiff filed a for-

mal complaint with the United States Attorney

for the District of Connecticut alleging that the

five Justices comprising the Supreme Court

of the State of Connecticut were about to de-

prive plaintiff of his constitutional right to a

fair trial by failing to disqualify themselves

from hearing an appeal from a judgment in

plaintiff's favor against the Connecticut Bar

Association, an organization of which all the

Justices were members. Plaintiff filed a

separate suit against the Supreme Court Jus-

tices, alleging violations of 42 U.S.C. § 1983

and 42 U.S.C. § 1985, which action this Court

F-1

dismissed on the ground of judicial immunity,

Dacey v. House et al, Civil Action No. B-76-

146, February 16, 1977, Plaintiff, acting pro se,

now alleges that defendant's failure to prosecu-

te the Justices constitutes a violation of his

civil rights pursuant to 42 U.S.C. § 1986.

II

The Court finds that the motion to dis-

miss must be granted. It is now well establish-

ed that public prosecutors enjoy absolute im-

munity from civil suits for damages, under

both the common law and 42 U.S.C. § 1983

when acting within the scope of their prosecu-

torial duties. Imbler v. Pachtman, 424 U.S.

409 (1976). See also Fine v. City of New York,

529 F.2d 70, 73 (1975); Dacey v. N.Y. County

Lawyers' Assoc. , 423 F.2d 188, 192 (2 Cir. 1969),

cert.denied, 398 U.S. 929 (1970); Finale v.

Sheehy, 385 F.2d 866 (2 Cir. 1969); Gregoire v.

Biddle, 177 F 2d 579 (2 Cir. 1949), cert. denied,

339 U.S. 949 (1950); Yaselli v. Goff, 12 F.2d

396 (2 Cir.1926),. aff'd, 275 U.S. 503 (1927).

In Imbler, the United States Supreme Court

noted that:

The public trust of the prosecutor's

office would suffer if he were con-

strained in making every decision by

the consequences in terms of his own

potential liability in a suit of damages.

Id. at 424-5.

Although Imbler was concerned with the liabil-

ity of state prosecutors under § 1983, the same

considerations of public policy apply to suits

against federal prosecutors under § 1986. Fur-

thermore, it is well settled that the decision

whether or not to prosecute is within the dis -

cretion of the United States Attorney, and the

F-2

Attorney General of the United States. See

Peek v. Mitchell, 419 F.2d 575 (6. Cir.1970);

Powell v. Katzenbach, 359 F.2d 235 (D.C.

Cir. 1965), cert.denied, 384 U.S. 906 (1966);

United States v. Cox, 342 F.2d 167 (5 Cir.)

cert. den. sub.nom. Cox v. Hauberg, 381 U.S.

935 (1965).

Accordingly, the motion to dismiss is

granted.

Dated at New Haven, Connecticut, this

l6th day of February, 1977.

Robert C. Zampano

United States District Judge

UNITED STATES COURT OF APPEALS

For tHe Seconp Crrcurr

—-2->

No. 286—September Term, 1977.

(Argued December 2, 1977 Decided January 12, 1978.)

Docket No. 77-6100

-_ =

Se

Norman F. Dacey,

Plaintiff -Appellant,

—against—

Peter H. Dorsey,

Defendant-Appellee.

4

6

¢q

Before:

Moore and Gurren, Circuit Judges, and

BonsaL, District Judge.*

+o

Appeal from a judgment entered by the District Court

for the District of Connecticut (Zampano, J.) dismissing

plaintiff’s civil rights complaint for damages against the

United States Attorney for Connecticut based on his al-

leged failure to restrain the Connecticut Supreme Court

from entertaining an appeal in plaintiff’s state libel suit

against the Connecticut Bar Association. The Court of

Appeals held: (1) the refusal by the Connecticut Supreme

Court Justices to recuse themselves on grounds of their

* Hon. Dudley B. Bonsal, United States District Judge for the Southern

District of New York, sitting "5 aes

membership in the Connecticut Bar Association did not

constitute a conspiracy in violation of plaintiff’s civil

rights; (2) since plaintiff had no cognizable claim against

the Connecticut Justices, the U.S. Attorney had no obliga-

tion to act; and (3) the U.S. Attorney had immunity for

decisions made in the exercise of his official functions.

+e

Norman F. Dacey, Bridgeport, Conn., Plaintiff-

Appellant Pro Se.

Raymonp L. Swetcart, Assistant United States

Attorney, New Haven, Connecticut (Richard

Blumenthal, United States Attorney, Dis-

trict of Connecticut, Frank H. Santoro, As-

sistant United States Attorney, and Peter

J. Ponziani, Law Student Intern, New

Haven, Conn., of counsel), for Defendant-

Appellee.

4

©

7

Gurren, Circuit Judge:

Norman F. Dacey, author of “How to Avoid Probate,”

obtained a $60,000 judgment for libel against the Connecti-

cut Bar Association in a State Court of Connecticut. The

Bar Association appealed to the Supreme Court of Con-

necticut, all of whose five justices were members of the Bar

Association. Dacey sought to have the judges recuse them-

selves on that account. Apparently, since there was no

other tribunal which was legally empowered to hear the

case, the judges declined to recuse themselves.

Dacey then lodged a formal complaint with the United

States Attorney for Connecticut, Peter C. Dorsey, asking

him to restrain the Connecticut Supreme Court judges from

allegedly conspiring to violate Dacey’s civil rights contrary

G-2

to 42 U.S.C. § 1985." The United States Attorney for Con-

necticut declined to take action, and eventually the Supreme

Court of Connecticut reversed the libel judgment.

Dacey then filed a complaint in the United States District

Court for Connecticut seeking money damages against

United States Attorney Dorsey for his alleged failure to

carry out his duties under 42 U.S.C. § 1986* to prevent a

consummation of the alleged civil rights conspiracy against

the plaintiff by the judges in violation of § 1985.

The District Court (Zampano, J.) dismissed the com-

plaint, and this appeal followed. We affirm.

We do not consider the refusal of the State Supreme

Court judges to recuse themselves as constituting a con-

spiracy under 42 U.S.C. § 1985. There is no averment in

the complaint of a single fact that would justify the charge

of conspiracy. The claim is simply that the failure of the

judges to recuse themselves because they were members of

the defendant bar association violated the plaintiff's civil

rights. We need not decide whether a party, at whose in-

stance recusal is sought and denied, ever has a claim under

1 Section 1985(2) provides in pertinent part as follows:

“or if two or more persons conspire for the purpose of impeding,

hindering, obstructing, or defeating, in any manner, the due course

of justice in any State or Territory, with intent to deny to any

citizen the equal protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting to enforce, the right

of any person, or class of persons, to the equal protection of the

laws; ....”

2 Section 1986 reads in pertinent part as follows:

“Every person who, baving knowledge that any of the wrongs

conspired to be done, and mentioned in section 1985 of this title,

are about to be committed, and having power to prevent or aid in

preventing the commission of the same, neglects or refuses so to

do, if such wrongful act be committed, shall be liable to the party

injured, or his legal representatives, for all damages caused by

such wrongful act, which such person by reasonable diligence could

have prevented; and such damages may be recovered in an action

on the case; ....”

G-3

the civil rights statutes. In this case, there was no other

forum available for the State Court appeal. When all are

disqualified, none is disqualified. Evans v. Gore, 253 U.S.

245, 247-48 (1920).* Thus, the decision could not have been

grounded in prejudice or in the denial of equal protection

of the laws. The particular provision of § 1985 involved

requires that the plaintiff allege a “class-based, invidiously

discriminatory animus.” Hahn v. Sargent, 523 F.2d 461,

469 (1st Cir. 1975); Brawer v. Horowitz, 535 F.2d 830, 839-

41 (3d Cir. 1976) ; see also Griffin v. Breckenridge, 403 U.S.

88, 96-103 (1971). There is no allegation of a class-based

animus on the part of the Connecticut judges.

In any event, the decision not to withdraw from the case

was made by the judges in pursuance of their judicial func-

tion. See Saier v. State Bar of Michigan, supra note 3, 293

F.2d at 760-61. For such decisions the judges had absolute

immunity from civil liability. Pierson v. Ray, 386 U.S. 547,

554-55 (1967). And even though a federal court is not

wholly without power to order injunctive relief against

state judges for violations of civil rights, Mitchum v. Fos-

ter, 407 U.S. 225 (1972), we can find no adequate allegation

of such a violation here.

Accordingly, since there was no claim cognizable in the

federal court, there was no duty upon the United States

Attorney to act. Having failed to state a cause of action

under § 1985, plaintiff has failed to state a claim under

§ 1986. Brawer v. Horowitz, supra, 535 F.2d at 841; Hahn

v. Sargent, supra, 523 F.2d at 469-70; Hamilton v. Chaffin,

506 F.2d 904, 914 (5th Cir. 1975).

8 See also Saier v. State Bar of Michigan, 293 F.2d 756, 760-61 (6th

Cir.), cert. denied, 368 U.S. 947 (1961); Turner v. American Bar Asso-

ciation, 407 F. Supp. 451 (N.D. Tex. 1975) (consolidated cases), aff'd

without opinion sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th

Cir. 1976), aff’d sub nom. Pilla v. American Bar ~« ‘sociation, 542 F.2d

56, 58 (8th Cir. 1976). See, In re Rhodes, 370 F.2d 411, 413 (8th Cir.),

cert. denied, 386 U.8. 999 (1967).

G-4

Moreover, the United States Attorney is part of the ex-

ecutive branch, and, as such, his official discretion is not

subject to control by the judiciary at the instance of private

persons. See United States v. Cox, 342 F.2d 167, 171 (5th

Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S.

935 (1965); Moses v. Kennedy, 219 F. Supp. 762, 765

(D.D.C. 1963), aff’d sub nom. Moses v. Katzenbach, 342 F.2d

931 (D.C. Cir. 1965). And see Smith v. United States, 375

F.2d 243, 247 (5th Cir.), cert. denied, 389 U.S. 841 (1967).

The United States Attorney concededly did forward Mr.

Dacey’s complaint to the Department of Justice in Wash-

ington for its consideration. He did not attempt to sup-

press it. The extent of his official privilege as a federal

officer is governed by federal law. Howard v. Lyons, 360

U.S. 593, 597 (1959). Sinee he acted in the exercise of the

discretion vested in him by virtue of his office, he is not

subject to a private suit for damages. See Imbler v. Pacht-

man, 424 U.S. 409 (1976).

We apply the policy of Imbler v. Pachtman to bar this

claim against the United States Attorney for failure to seek

injunctive relief against state judges under § 1986, regard-

less of whether an injunction m:7ht lie simply as a matter

of federal judicial power. See Scolnick v. Lefkowitz, 329

F.2d 716 (2d Cir.), cert. denied, 379 U.S. 825 (1964) (com-

plaint of violation of civil rights in civil proceeding by

State Attorney General).

The judgment dismissing the complaint for failure to

state a claim upon which relief can be granted is affirmed.

SUPREME COURT OF THE UNITED STATES

NO, A-653

NORMAN F. DACEY,

Petitioner,

Vv.

CHARLES S. HOUSE, ET AL

Respondents

ORDER EXTENDING TIME TO FILE PETI-

TION FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of

petitioner, IT IS ORDERED that the time for

filing a petition for writ of certiorari in the

above-entitled cause be, and the same is

hereby, extended to and including April 26,

1978.

/s/ Thurgood Marshall

Associate Justice of the

Supreme Court of the

United States

Dated this 8th day of

February, 1978.

STATE OF CONNECTICUT

Supreme Court

March 17, 1977

Mr. Norman F. Dacey

516-A Heritage Village

Southbury, Connecticut 06488

Dear Mr. Dacey:

I have just received your letter of March 10,

1977 concerning a retrial of Dacey v. Connecti-

cut Bar Assn., 170 Conn. 521.

There are a number of judges who are not

members of the Connecticut Bar Association

who would be in a position to try this case.

Iam, therefore, sending a copy of your letter

to the Honorable Irving Levine, Acting Admin-

istrative Judge of the Superior Court in Fair-

field County at Bridgeport to resolve this

matter.

I would also suggest that the attorneys who

represent you discuss this matter with Judge

Levine so that it may be reached for a trial

as quickly as possible.

Very truly yours,

/s/ John P. Cotter

Justice ‘

Chief Court Administrator

IPC /fcc

cc; Hon. Irving Levine

I

Judges, Legislators’ Courage, ‘Yes’ Men

The new legislative system of open voting on

judicial nominations produced a great spectacle of

unanimity as the lawyer members of House and Sen-

ate voted automatically yes on every nomination that

came before them

This spectacie became so annoying to a few stray

members of the legislature that they took to voting no

on all judges, not as a reflection on the individuals

involved, but as a reproach to the lawyers of the

legislature for having pushed through the bill to com-

pel open voting, in the first place, and for then taking

refuge from the obligations of the new procedure in

automatic yes voting

ALAN H. OLMSTEAD

‘THE CONNECTICUT

YANKEE’

So far as promoting healthy open voting, then, the

new system, in its first returns, seemed to miss its

mark

The new voting system also provided the setting

for what was at least a casually significant test of the

General Assembly's sensitivity to questions of propri-

ety and ethics. This is a legislature which has expend-

ed a generous amount of Lime, speech, work and inspi-

ration crusading against wicked influences. It has set

up an Ethics Commaasion to keep itself pure and to pin

badges on wicked @utside influences which might at-

tempt to approach innocent legislators

The House of Representatives, meeting on March

2 to consider another batch of judgeships to be con

firmed by open voting, found itself faced with one

resolution which posed a delicate of ethics. It

was a resolution naming Seymour of New Loo-

don a judge. There was, just before action began, one

moment in which attention was called to the fact that

this was a nomination a little out of the routine. Rep

Patricia Hendel, member of the House from New

London, and the wife of Attorney Hendel, officially

informed the Speaker that she would absent herself

from the House during the consideration of ber

appointment

That complied with the standing legislative rule

The New Haven (Conn.) Register

rring legislators from voting m matters

ge §

oti

ft

ut

HL

i

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aH

fi

;

;

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Off the floor, one of the three negative voters

gave a belief that a legislator’s spouse should not have

been nominated as a reason for voting no. Another of

the negative voters, on the other hand, was reportedly

voting not against Hende! as an individual, nor against

the possible offense to the spirit of the dual job ban

law, but against one of the legislative policy decisions

of Rep. Pat Hendel

Judging by the House vote that day. there was no

ethical issue involved. But on the other hand

:

one member of the House who later that same day

became a chronic vote no on all judgeships, said she

was acting that way to protest the new open voting

procedure which she described as ‘the absolute big-

gest farce I've seen in my three terms.” What made it

a farce, Rep. Phyllis Kipp of Mystic was quoted as

Saying, was the fact that sumercus House members

jam Se Py bed 4 4 ~ 4-4 —

that day, but then supported the nominations.

There is, of course, no to establish what the

voung have been like if the old procedure, ih

which lawyers and laymen could express their

sentiments without exposing thernseives to the resent

ment of either judges or legislative hao

still been in effect. But it seems to com

8 eee

lawyers and non-lawyers , to vote their own real

opinion of judicial appointments, the less such voting

there will be.

_ .

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

NORMAN F, DACEY :

Vv. : CIVIL NO,

B-77-269

HENRY J. NARUK :;

RULING ON PLAINTIFF'S

MOTION FOR RELIEF FROM JUDGMENT

This action was instituted on August 22,

1977, by the filing of a pro se complaint against

the defendant Henry J. Naruk, a judge of the

Connecticut Superior Court. The plaintiff mov-

ed to disqualify defendant's counsel, claiming

that the state Attorney General's office could

not defend a state judge. This Court dismissed

the entire action, sua sponte, since the defen-

dant's judicial immunity constituted a complete

bar to the claims for relief in plaintiff's com-

plaint. Plaintiff then sought to vacate or

amend the judgment of dismissal and to amend

his complaint in an effort to have this Court

review actions taken by the Connecticut Super-

ior Court. Since this Court is obviously without

appellate jurisdiction over the Connecticut

Superior Court, this Court granted the motion

to amend the complaint, but again dismissed

the action. So that plaintiff would not be

foreclosed from appeal, this Court ordered

that a second judgment be entered dismissing

the action. Thereafter, on November 30,

1977, plaintiff filed a notice of appeal to the

K-1

Court of Appeals, and the record has been

docketed in that Court. Then on December 5,

1977, plaintiff filed a motion, under Fed. R.

Civ. P. 60(b), for relief from the second

judgment of dismissal and sought permission

to file an affidavit of prejudice pursuant to

28 U.S.C. § 144. On January 16, 1978, plain-

tiff filed an unsworn document captioned

"Plaintiff's Affidavit of Prejudice Filed Pur-

suant to Title 28, Section 144.'"' This docu-

ment requests that I recuse myself and vacate

orders previously entered, on the ground that

Iam a member of the Connecticut Bar Assoc-

iation, and that plaintiff's dispute, which he

was litigating in the state courts before Judge

Naruk, involves a claim against the Connecti-

cut Bar Assocation.

While an appeal is pending, a District

Court is without jurisdiction to vacate the

judgment appealed from, but it can indicate

an intention to do so upon remand from the

alpellate court. See,e.g.,Greater Boston

Television Corp. v. F.C.C., 463 F.2d 268

(D.C. Cir.1971). Whether such an indication

should be given in this case is by no means

clear.

The absence of an affidavit, i.e., a

sworn statement of grounds for disqualifica-

tion, can perhaps be overlooked in this case,

since plaintiff's sole factual allegation, my

membership in the Connecticut Bar Associa-

tion, is beyond dispute. Plaintiff's claim that

this fact was somehow "'concealed" from him

and that he "just became aware" of it when he

filed his motion on December 5 cannot be

K -2

accepted at face value, since plaintiff made a

telephone inquiry to my chambers some weeks

before the filing of his motion and was speci-

fically told that Iwas a member of the Connec-

ticut Bar Association. It is extremely doubt-

ful that this fact affords any legal basis for

disqualification. As originally filed, plaintiff

alleged a dispute with Judge Naruk, and the

claim against Judge Naruk, even if not barred

by the doctrine of judicial immunity, would in

no event be satisfied by funds of the Connecti-

cut Bar Association. However, there are

occasional situations where even though recus-

al is not required, it may be appropriate to

eliminate even the slightest question concern-

ing the impartiality of a judge. Since this

litigation is alleged to concern a member of

the judiciary, it may be appropriate, even in

the absence of legally valid grounds for dis-

qualification, to make sure that the judge de-

ciding this case is one against whom plaintiff

can make no complaint whatever. Of course,

all members of this Court aremembers of the

Connecticut Bar Association, but since this

District has available to it the occasional ser-

vices of visiting judges from within the Second

Circuit who are not members of the Connecti-

cut Bar Association, I am perfectly willing

to vacate my prior orders in this case, recuse

myself, and ask the Chief Judge of this Distric

to make a reassignment to a visiting judge.

Whether, upon plaintiff's request for a

remand of his appeal, the Court of Appeals

will deem it appropriate to remand this case

for such a purpose is, of course, entirely

within the discretion of that Court. It may

K-3

prefer to rule on the issues on their merits,

since it has only recently ruled, in litigation

brought by this same plaintiff, that the basic

grievance of the plaintiff -- namely, that the

state court judges who have considered his

state court claims should have disqualified

themselves because of their membership in

the Connecticut Bar Association -- is without

merit. Dacey v. Dorsey, _F.2d_ (2d Cir.

Jan.12, 1978).

Accordingly, the Clerk of this Court is

directed to submit a copy of this Ruling to the

Court of Appeals to be made part of the record

in that Court in connection with plaintiff's pend-

ing appeal. If plaintiff requests the Court of

Appeals to remand this case and if the Court

of Appeals chooses to remand the case to

permit me to vacate my prior orders, recuse

myself, and request reassignment of the case,

I will promptly do so, but, in view of plain-

tiff's notice of appeal, I am without jurisdic-

tion to do so now.

Dated at Hartford, Connecticut, this

30th day of January, 1978.

/s/ Jon O. Newman

Jon O. Newman

United States District

Judge