# Petition — Dacey v. House > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0671%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 906 ## Text . 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 - cre [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0671%3A1. Public record. Not legal advice.