Petition — Dacey v. Cotter
Supreme Court brief1980
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AUG 111980
MICHAEL KUvAK, JR., CLER
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
No.
NORMAN F. DACEY
Petitioner
V.
JOHN P. COTTER, JOSEPH W. BOGDANSKI,
ALVA P. LOISELLE, JOSEPH S. LONGO
and ELLEN A. PETERS
Respondents
and
NORMAN F. DACEY
Petitioner
V.
HENRY J. NARUK
Respondent
PETITION FOR WRITS OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
WITH APPENDIX
Norman F. Dacey
2926 Fairfield Avenue
Bridgeport, CT 06605
Petitioner, pro se
QUESTIONS PRESENTED FOR REVIEW
1, Was the successful plaintiff in an earlier trial
of a libel action against the Connecticut Bar
Association denied due process in the retrial
of that action when a state trial court judge,
who would have been required to contribute to
the damages and costs awarded to such plaintiff,
declined to observe Connecticut's statutory pro-
hibition against any judge sitting on an action in
which he ''may be required to contribute to the
damages, costs or expenses" thereof when, in
fact, a number of non-disqualified judges were
available and the Chief Administrative Judge of
the State had given the plaintiff an assurance
that a non-disqualified judge would be named
to preside on the case?
2. Is the successful Plaintiff in an earlier trial
of a libel action against the Connecticut Bar
Association being denied due process in the
retrial of that action when the five justices of
the Connecticut Supreme Court, each of whom
would be required to contribute to such Plaintiff's
judgment and damages, have declined to observe
Connecticut's statutory prohibition against any
judge sitting on an action in which he 'may be
liable to contribute to the damages, costs and
expenses'' thereof, when, in fact, they had the
option of recusing themselves and allowing the
governor to appoint five temporary Supreme
Court judges to sit in their stead or exercising
their own statutory powers to appoint non-dis-
qualified judges to sit in their place and hear the
appeal?
3. Did the District Court err in denying its own
-le-
its own jurisdiction in a Title 42 U.S.C. Sections
1983 and 1985 action properly requesting injunc-
tive relief from such unconstitutional acts upon
the part of state courts, whichacts were causing
great and immediate irreparable harm to the
Plaintiff?
OFFICIAL AND UNOFFICIAL REPORTS
OF OPINIONS DELIVERED IN COURTS
BELOW
See Statement of Case and Appendix
TABLE OF CONTENTS
Questions Presented For Review......
Official and Unofficial Reports of
any Opinions Delivered in the
Courts Below <cicccvcecceccccccssce
Statement of Grounds on Which Jur-
isdiction of this Court is Invoked......
Constitutional Provision, Statutes,
and Canons which the Case Involves....
Statement GF the GOGO si’ sccscevecece
Page
1
2
3
9
TABLE OF CASES AND AUTHORITIES CITED
Cases Cited:
Adams v. Sampson, F.Supp. :
(D.C.N.H. 1979)
Amalgamated Clothing Workers v.
Richman Bros., 75 S.Ct. 452, 455,
348 U.S, 5ll, 516 (1955)
Anderson v. Lecon Properties, Inc.
457 F. 2d 929 (1972)
Anonymous J. v. Bar Association of
Erie County, C.A.N. Y.(1975), 575 F.
2d 435, Cert. Den. 96S. Ct. 71, 423
U.S, 480
Baggett v. Bullitt, 377 U.S, 360 (1964)
Baker v. Carr, 83S. Ct. 691, 364 U.S,
186 (1962)
Berger v. U.S., 255 U.S. 22, (1921)
Board of Commissioners of Lake County
v. Platt , 79 Fed. 567, 25 C.A.A. 87
Bradley v. Fisher, 13 Wall, 335, 347 20
(1872)
Classic Distributors v. Zimmerman, D.C.
Pa. (1974) 387 F. Supp. 829
Commission on Judiciary Performance v.
Page
38
35
45
be
35, 41
37
Court of Appeals for the Second District, LA,
11134
o3-
27
Cases Cited Page
Commonwealth Coat Corp. v. Continetnal
Casualty Co., 89S. Ct. 337 (1968) 22,35
Conn. Light & Power Co. v. Public
Utilities et al, Conn. Law Journal, Vol. Xl,
No. 14, October 3, 1978 28
Consumers Union v. Supreme Court of
Virginia, 79-718 No. =, 35
Cooper v. Aaron, 358 U.S. l, 78S. Ct. 1401 35
County of Allegheny v. Frank Mashuda Co.
(1959) 79 S. Ct. 1060, 360 U.S. 185 3 L.Ed.
2d 1163 Vander L.R. 801 35
Cousins v. Eigoda, 92 S.Ct. 2610 (1972) 35
Dombrowski v. Pfister, 380 U.S. 479 31, 37
Duke v. State of Texas, D.C. Tx. (1971)
327, F. Supp. 1218 Reversed on other grounds
477 F.2d 244, rehearing Den.478 F 2d
1402, cert.Den. 94 S.Ct. 1565 415 U.S.978 38
England v. Louisiana State Board of Medical
Examiners, 375 U.S, 4ll, 416 (1964) 34,35
Evans V. Gore, 253 U.S, 245, 247-248 (1920)28
Ex Parte Virginia, 100 U.S, 346 31,35
Ex Parte Young, 209 U.S, 123 31,35
Federacion de Cooperatives de Credito
de Puerto Roco v. Burgos, D.C. Puerto
Rico, (1973) 366 F.Supp. 1321. 38
o 4e
Cases Cited Page
Gibson v. Berryhill, 411 U.S. 564 (1973) 21,37
Golden Dawn Shops, Inc. v. Dept. of
Housing and Urban Development, D.C. Pa.
(1971) 333 F. Supp. 874 38
Gruman v. Raymond & Betts, 1 Conn. 40
(1814) 40,43
Haley v. Troy, 338 F. Supp. 794 (1972) 38
Harmon v. Superior Court of Calif., 207
F.2d 796 (1962) 39
Harris v. McRae, U.S. , 48 LW 4941 20
Hillsborough Township v. Cromwell, 66 S.
Ct. 445, 326 U.S. 620, (1946) 35
Home Tel. & Tel. v. City of Los Angeles,
33 S.Ct. 312, 227 U.S. 278 (1913) 35
Hopkins v. Comm., 3 Metc. (Mass. )45l 41
Howard v. Kunin, C, A. Mass. 73-3813-G 38
Huffman v. Pursue, 420 U.S.592 (1975) 32
In Re Ayers, 8S. Ct. 164 36, 48
In Re Ferguson, 9 Johns N.Y. 239 Al
In Re Martin, C. A, 5th 5 Crim. 3151, 22
June 30, 1977
In Re Murchison, 349 U.S. 133, 136 (1955) 36
I,O.B. 1896, 35 42
i.
Cases Cited Page
Javits v. Stevens, 382 F.Supp. 13l 36,47
(1973)
Juidice v. Vail, 430 U.S, 327 (1977) 32,33
Lucas v. Forty-Fourth Gen. Assembly of
Colorado, 377 U.S. 713 84S, Ct. 1459 36
Lynch v. Household Finance, 92 S,Ct. 1113
(1972) 36
Matherly v. Lamb, D.C. Pa. (1976), 414 F.
Supp. 364 27
Mayberry v. Penn. 9S.Ct. 499 21
McNeese v. Board of Education 83 S, Ct.
1433, 373 U.S. 668 (1963) 36
Meredith v. City of Winter Haven, 64
S.Ct.7, 320 U.S, 228 (1943) 36,48
Mills v. Larson, 56 F.R. D. (1972) 47
Mitchum v. Foster, 407U.S,242 79» 33,34,37, 46
Monroe v. Pape, 365 U.S, 167 30,44
Monroe v. State of Conn. , Conn. Law
Journal, Vol XL, March 27, 1979) 28
Mosk v. Superior Court of Los Angeles
L.A, 31140 (1979) 27
Napue v. Illinois, 79 S.Ct. 1173,1178
360 U.S, 264, 271 49
oa Ge
Cases Cited Page
Pierson v. Ray, 386 U.S. 547 43
Reynolds v. Stockton, U.S, Ct. 773 42
Rizzo v. Goode, 96 S.Ct. 598 (1976) 36
Rondebush v. Hartke, 92 S.Ct. 804 (1972) 36
Rooker v. Fidelity Trust Co. ,263 U.S.14, 49, 43, 44
(1923)
Seffiotiv. Wilson, 392 F, Supp. 1335 (1975) 47
Shaw v. Garrison, D.C. La.(1971), 328 F.
Supp. 390, Affirm.467 F.2d 113, Cert. den.
93 5.Ct. 467, 409, U.S. 1024 38
Shepard v. Maxwell, 384 U.S.333, 83S.
Ct. (1966) 36
Snaidach v. Family Finance, 89 S.Ct. (1980)29
Sperry Rand v. Rothlein, C, A, 2d (1961)
228 F.2d 245 37
State Ex Rel Brockman v. Proctor, 298
N.E.,2d, Ohio 532 (Ohio 1973) 47
State of Louisiana Ex Rel Purkey v. Ciolino,
393 F.Supp. 102 (1975) 36,47
State v. Tedesco, Conn. Law Journal, Vol.
XXX1X, No.50, June 13, 1978. 28
Tang v. Appellate Division of New York
Supreme Court, 487 F.2d 148 (1973) 45
=
Cases Cited Page
The Fair v. Specialty Co., 228°U.S., 42
22-25, 33 S.Ct.410, 57 L. Ed. 716
Trainor v. Hernandez, 97 S.Ct. 19'
(1977) 36
Traux v. Raich, 239 U.S. 22 31
Tumey v. State of Ohio, 273 U.S, 510
(1927) 21
U.S. v. Livingston, D.C.S,C. (1959)
179 F.Supp.9, Affirmed 1961, 80 S.Ct.
16ll, 364 U.S, 281 36
U.S. v. McLeod, 385 F.2d 734, 738n
5th Cir. (1967) 47
Vendo Co. v. Electro Vend. Corp.
97 S.Ct. 2881 (1977) 36
Younger v. Colorado State Board of
Bar Examiners, 79-M-645 38
Younger v. Harris, 401 U.S. 37, 46 (1971) 31, 33
Zwickler v. Koota, 389 U.S,241,248(1967) 34
Authorities:
Kauper, Civil Liberties and the Con-
stitution, Univ. of Michigan Press 49
The Courts: The Pendulum of Federalism,
Roscoe Pound Foundation-American Trial 49
Lawyers Association
« 8»
Authorities: Page
Halsbury, Lord, The Law of England, 1955
Vol.2 7,
Berger, Raoul, ''The Imperial Court,"
The New York Times, October 9, 1977 29
STATEMENT OF GROUNDS UPON
WHICH THE JURISDICTION OF
THIS COURT IS INVOKED
Title 28, U.S. Code Section 1254 (1) confers
upon this Court jurisdiction to review denials
of motions for reconsideration and requests
for rehearing en banc by a United States Court
of Appeals, when such denials are inconsistent
with the thrust of countless decisions on similar
issues by this Court and other U.S. Courts of
Appeals.
CONSTITUTIONAL PROVISIONS, STATUTES
AND CANONS WHICH THE CASE INVOLVES
l. 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 deter-
mination thereof, he shall be disquali-
fied to act, "'
= Ge
2. Section 51-207 of the Connecticut General
Statutes provides inter alia, that
"Each of the parties in any case shall
have the right tobe heard by a full court....
If any judge is...disqualified and the ... dis-
qualification is not waived...the chief
justice or, in his absence, the senior judge
present...may summon the sixth member
of the said court or one or more judges of
the superior court to constitute a full court,
who shall attend and act as judges of the
supreme court for the time being."
3. Canon 3, Code of Judicial Conduct, provides,
inter alia:
"C. Disqualification
"(L) A judge should disqualify himself
in a proceeding in whichhis impartiality
might reasonably be questioned, includ-
ing but not limited to instances where....
'(c) he knows that he individually... =
has a financial interest in the subject
matter in controversy or in a party
to the proceedings, or any other in-
terest that could be subStantially
affected by the outcome of the pro-
ceeding..."
4. Title 42, U.S. Code Section 1983 provides,
inter alia:
"Every person who, under color of any
statute, ordinance, regulation, custom
or usage...subjects, or causes to be
subjected, any citizen of the United States
-10-
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. "'
5. 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
whereby another is injured in his person
or property, 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."
6. Title 28, U.S. Code Section 455 provides,
‘nter 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 material
with any party or his attorney as to render
it improper, in his opinion, for him to sit
on the trial, apeal, or other proceeding
therein (emphasis added)."
7. Title 18, U.S. Code Section 241 provides
inter alia:
-l]l-
“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."
8. Title 18, U.S, Code Section 242 provides,
inter 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, privileges or
immunities secured or protected by the
Constitution or laws of the United States....
shall be fined no more than $1,000 or im-
prisoned for one year,or both, "
9. Title 42, U.S. Code 1986 provides, inter alia:
"Every person.who, having knowledge that
any of the wrongs conspired to be done, and
mentioned in the preceding Section [1985
Title 42] are about to be committed, and
having the power to prevent or aid in pre-+
venting the commission of the same, neg-
lects 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 reasonahle diligence could
have prevented; and such damages may be
recovered in an action on the case; and any
number of persons guilty of such wrongful neg-
lect or refusal may be joined as defendants
in the action, "'
-1l2-
STATEMENT OF THE CASE
Plaintiff/Appellant Dacey's action for libel
instituted in 1967 against the Connecticut Bar
Association resulted, on June 13, 1974, ina
jury finding that the Defendant Association had
in fact maliciously libeled him, and an award
of $60, 000 damages plus $8,500 counsel fees.
By the terms of the judgment, each member of
the Defendant Association was required to pay
a prorata share of the damages awarded.
The Association appealed the judgment on
technical grounds to five of its own members
sitting as the Justices of the Supreme Court of
Connecticut. Dacey cited to the Justices Sec-
tion 51-39 of the Connecticut General Statutes
which provides inter alia:
"When there is so near a relationship
between any judge and any party ina
proceeding in court before him...or
when any judge may be liable to contri-
bute to the damages, costs, or expenses
of any proceedings, or when he may re-
ceive a direct pecuniary benefit by the
determination thereof, he shall be dis-
qualified to act (emphasis added). ai.
Dacey also sited Canon 3 of the Code of
Judicial Conduct which prohibits a judge from
presiding on any action in which he has a pecu-
niary interest or in which his impartiality
might reasonably be questioned, and moved
that they recuse themselves. All refused. In-
stead, on December 2, 1974, they heard the
appeal, reversed the jury verdict on April 3,
- 13-
1975 and ordered the action retried.
On March LO, 1977, Dacey requested the
Hon. John P, Cotter, Chief Administrative
Judge Connecticut, to cause the retrial to be
assigned to a judge who was not a member of
the Defendant Connecticut RBar Association. The
Chief Administrative Judge replied on March 17,
1977:
"There are a numb»r of judges who are not
members of the Connecticut Bar Agsociation
who would be in a position to try this case.
Iam, therefore, sending a copy of your letter
to the Hon. Irving Levine, Acting Administra-
tive Judge of the Superior Court in Fairfield
County at Bridgeport, to resolve the matter.
(See AppendixB-1)
Retrial of the action began on May 27, 1977,
with Superior Court Judge Henry J. Naruk presiding.
When asked at a pretrial conference in chambers to
confirm that he was not a member of the Defendant
ASsociation, he acknowledged that, in fact, he was
a member, whereupon Section 51-39 of the Statutes
was cited to him and he was asked to recuse himself.
He declined to do so, Dacey's counsel then indica-
ted that he expected Judge Naruk to disclose to the
jury the fact of his membership in the Association.
Judge Naruk refused. Counsel then advised Judge
Naruk that in his own argument to the jury he
would feel it incumbent upon him to disclose the
fact of the judge's membership, whereupon Judge
Naruk stated that if counsel took such action, he
would immediately declare a mistrial. In the Re-
quest to Charge, Plaintiff's counsel asked again that
Judge Naruk reveal his membership in the Defen-
@ 14.
dant. Judge Naruk again refused.
During the voir dire, Judge Naruk systematical-
ly used his power to exclude as a juror any indivi-
dual who, under his close questioning, acknowledged
that he had ever heard of Dacey. Since, for more
than ten years, the case of Dacey v. Connecticut
Bar Association had been the subject of front
page news stories, newspaper editoriabBcritical
of the Bar Association, and radio and television
coverage, Judge Naruk's action had the only pos-
sible result: the selection as jurors of seven
persons whose interests and mental processes
were such that they were ignorant of day-to-day
happenings in the world around them.
During the trial, Judge Naruk refused to allow
Dacey to introduce important evidence, including
a New York Court of Appeals decision which utter-
ly refuted the testimony of the Defendant Associa-
tion's "expert witnesses'' and destroyed their
credibility. When Dacey informed the court that
the key piece of evidence, Exhibit A, had been
tampered with and asked that the verdict be set
aside, the court refused. As the trial ended, the
Plaintiff discovered that the "new partner'' whom his
counsel had acquired during the pre-trial period of .
preparation had come directly from a partnership
in the law firm defending the Bar Association.
When the trial ended, the "partnership" was dis-
solved.
Plaintiff/ Appellant then filed Dacey v. Naruk in
the U.S. District Court for Connecticut, seeking in-
junctive relief from Judge Naruk's deprivation of
Dacey's constitutional right to a fair trial before
an unbiased tribunal. The District Court ignored
ae.
the request for injunctive relief, ruling only that
the Defendant enjoyed judicial immunity from acivil
suit for damages. (See Appendix C-1)
Learning that District Judge Newman was himself
a member of the Defendant Association and thus
a party to the action, a fact which he chose not to
voluntarily reveal, Dacey filed an Affidavit of
Prejudice pursuant to 28 U.S.C. Section 144,
whereupon the District Judge vacated his order and
recused himself. The matter was referred to
District Judge Murphy who summarily dismissed
it on the merits whithout a hearing. (See Appen-
dix D-1l)
{
Meanwhile the state case went on appeal again
to the Connecticut Supreme Court, consisting of
two of the justices who had heard the earlier appeal
plus three new members, All five were members of
the Defendant Association and each had been requir-
ed by the first trial jury to contribute to the
$60,000 damages awarded the Plaintiff. Plaintiff
repeatedly requested excerpts of the transcript
for purposes of the appeal. Such requests were
ignored and he was forced to proceed without the
information in such transcript. On June 2l, 1979,
the Connecticut statute prohibiting their presiding
was cited to the Justices and they were asked to re-
cuse themselves. They refused. Plaintiff/Appel-
lant then filed Dacey v. Cotter, et al in the U.S.
District Court asking for injunctive relief from
this new deprivation of his constitutional right to
a fair trial before an impartial tribunal and from
the Justices' failure to honor state statute Section
51-39 prohibiting their participation in an action
in which they had a personal or pecuniary interest.
The District Court ruled that it lacked jurisdiction
to intervene in a state court action. (See Appen-
- 16-
dix F-1)
Both Dacey v. Naruk and Dacey v. Cotter, et al
were then appealed to the United States Court of
Appeals for the Second Circuit, which elected to
join the cases. Argument was set for February 29,
1980, and two and one-half minutes was allowed
for each case. Upom re-
ceipt of notice of such hearing, Plaintiff made
prompt application to Associate Justice Thurgood
Marshall for a Writ of Mandamus requiring the
Appeals Court to allow a more reasonable time for
argument, which application was denied on March
24, 1980, nearly one month after the date of the
heari ng in connection with which relief was
sought.
On March 3, 1980, the U.S. Court of Appeals
affirmed the decisions of the District Court in
Dacey v. Naruk and Dacey v. Cotter, et al. (See
Appendix G-1)
U.S. Court of Appeals Judge William H.
Timbers, formerly for many years a member of
the Connecticut Bar Association, failed to dis-
close to the plaintiff the fact of such membership
thus denying Dacey the opportunity to file an
Affidavit of Prejudice pursuant to 28 U.S.C.
§ 144. Dacey filed timely motions for reconsidera-
tion and petitions for rehearing en banc in both
cases. On May 13, 1980, the motions and petitions
were denied.
Jurisdiction over the instant actions was
conferred upon the District Court by Article I, Sec-
tion 2 of the Constitution of the United States and by
Title 28, Section 1343 of the United States Code.
-l17-
By agreement with the Plaintiff/Appellant, the
Justices of the Connecticut Supreme Court have de-
ferred their hearing of the appeal until this Court
has had an opportunity to consider the facts and
make a determination of whether or not their
refusal to recuse themselves constitutes a de-
privation of Dacey's constitutional right to due
process -- that is, to a fair trial before an
impartial tribunal.
ott.
ARGUMENT
l. WAS THE SUCCESSFUL PLAINTIFF IN AN EARL-
IER TRIAL OF A LIBEL ACTION AGAINST THE CON-
NECTICUT BAR ASSOCIATION DENIED DUE PROCESS
IN THE RETRIAL OF THAT ACTION WHEN A STATE
TRIAL COURT JUDGE, WHO WOULD HAVE BEEN
REQUIRED TO CONTRIBUTE TO THE DAMAGES
AND COSTS AWARDED THE PLAINTIFF, DECLINED
TO OBSERVE CONNECTICUT'S STATUTORY PRO-
HIBITION AGAINST ANY JUDGE SITTING ON AN
ACTION IN WHICH HE "MAY BE REQUIRED TO
CONTRIBUTE TO THE DAMAGES, COSTS OR EX-
PENSES" THEREOF WHEN, IN FACT, A NUMBER
OF NON-DISQUALIFIED JUDGES WERE AVAILABLE
AND THE STATE'S CHIEF ADMINISTRATIVE JUDGE
HAD GIVEN THE PLAINTIFF AN ASSURANCE THAT
A NON- DISQUALIFIED JUDGE WOULD BE APPOINT-
ED TO PRESIDE ON THE CASE?
Section 51-39 of the Connecticut General
Statutes could not be more specific:
".,. [When any judge may be liable to
contribate to the damages, costs or ex-
penses of any proceedings...he shall be
disqualified to act."
Since Plaintiff Dacey had earlier won a $60,000
judgment (plus $8,500 counsel fees) against the Con-
necticut Bar Association, of which the Defendant
in Dacey v. Naruk was a member and to which judg-
ment he would have been required to contribute, it
is beyond argument that such Defendant fell within
the purview of Section 51-39 and was thus disquali-
fied from sitting on the case. He was "liable to
contribute" and thus had no alternative but to
recuse himself. He refused to do so,
» 19.
The Defendant cannot claim that he had a ''duty
to sit'' for there were a number of judges of the
Connecticut Superior Court who were not disquali-
fied, by reason of membership in the Connecticut
Bar Association, from hearing the case.
On March 17, 1977, the Hon. John P. Cotter,
the Chief Administrative Judge of Connecticut,
in response to Dacey's earlier written request for
the assignment of a non-Bar Association member
to preside at the rehearing, wrote (see Appendix
A-1,B-l) that:
"There are a number of judges who are not
members of the Connecticut Bar Association
who would be in a position to try this case.
Iam therefore sending a copy of your letter
to the Honorable Irving Levine, Acting Ad-
ministrative Judge of the Superior Court of
Connecticut in Fairfield County at Bridgeport
to resolve this matter, "'
In attesting to the fact that there were judges
who were not members of the Bar Agsociation
and who would therefore be in a position totry
the case, Justice Cotter was clearly implying that
Judges who were members of the Association were
not in a position to try the case.
Defendant Naruk had taken an oath to support
and defend the Constitution and laws of the United
States and of the State of Connecticut. In Harris
v. McRae, _U.S.___, 48 LW 4941 (1980), this
Court has ruled that the deliberations of a state
legislature and the resulting laws are to be con-
sidered as reflecting the will of the people of the
state and are not to be overturned capriciously:
-20-
"It is well settled that if a case may be
decided on either statutory or constitutional
grounds, this Court, for sound jurispruden-
tial reasons, will inquire first into the sta-
tutory question,"'
In Dacey v. Naruk, there is no question of the
applicability of the state statute -- it specifically
applied to judges and it was clearly the intention
of the state legislature to protect the due process
rights of the state's citizens by deterring any
judge from sitting on a case in which he had a
personal or pecuniary interest.
Plaintiff submits that this Court should find that
Defendant Naruk has violated the very state law he
took an oath to defend.
As for the federal statutory question, 42 U.S.C,
8 1983 et seq. forbids any state officer, including
judges, from denying any citizen due process of law.
From a constitutional standpoint, the 5th and
14th Amendments' requirement of due process of
law has been interpreted by this Court in Mayberry
v. Penna. 91S.Ct. 499 to mean that every litigant
is entitled to an impartial tribunal as an essential
element of due process of law. In Tumey v. State
of Ohio, 273 U.S. 510 (1927), this Court held paca
it is a violation of due process for a judge to decj
a case in which he has a direct personal or pecu-
niary interest, and this decision has never been
overturned or challenged.
In Gibson v. Berryhill, 411 U.S. 564 (1973) this
Court ruled that "judges with pecuniary interests
in legal proceedings should not adjudicate the dis-
Zl.
putes.'' In Commonwealth Coat Corporation v. Con-
tinental Casulaty Co., 89 S.Ct. 337 (1968), it was
held that any tribunal permitted by law to try cases
and controversies must not only be unbiased but must
avoid even the appearance of bias arising from the
relationship between the tribunal and a party to the
action.
Three years ago, the Fifth Circuit spelled out
the requirements of "due process" with respect
to judicial impartiality in these terms:
"The integrity of the judicial process re-
quires that a judge wholly unconnected with
[the parties to the litigation ] should sit 6n
the case. Due process requires no less,"
In Re Martin, C.A.5th, 5 Crim. 315l,
June 30, 1977.
An earlier Connecticut Supreme Court ruled:
"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,
Thus, on statutory grounds, on constitutional
grounds and on the record of case law, Defendant
Naruk should have recused himself.
One particularly reprehensible aspect of the
conduct of the Defendants in both Dacey v. Naruk
and Dacey v. Cotter et al involves their participa-
tion in a transparent scheme to evade the letter
and the spirit of Section 51-39 of the state's Gen-
eral Statutes through negotiation with the Board
of Governors of the Connecticut Bar Association
for the passage of a "'special resolution" purport-
-iZe
ing to grant to any judge or justice sitting on any
phase of Dacey v. Conn. Bar Association a remis-
sion of his association dues equal to any amount
he might be called upon to contribute to the
damages in the action. The very passage of the
resolution constituted an acknowledgment that each
of the judges had a pecuniary interest in the
action.
But Connecticut has no integrated bar, and the
Connecticut Bar Association is not an arm of the
state government. It is a private trade union to
which some 3,000 Connecticut attorneys choose
not to belong. It has no authority to alter the appli-
cation of Connecticut law to its members or to con-
fer upon them any special immunity. History con-
firms Justice Hugo Black's statement that the
struggle for a written Constitution was ''to make
certain that men in power would be governed by
law, not the arbitrary fiat of the man or men in
power.'' From Raoul Berger's article ''The Imper-
ial Court'' New York Times, October 9, 1977.
Only the legislature can change the law. The
Association and these Defendants acting "under
color of law, '' are openly defying what is, so far
as Connecticut is concerned, the law of the land
which they are sworn to uphold. The actions of
the Board of Governors of the Association and
the Defendant judges constitute a blatant violation
of 42 U.S.C, § 1985 in that they represent a con-
spiracy to deprive Dacey of his civil rights and of
the fruits of a fair and just consideration of his
case by a jury of his peers and to substitute for
the findings of such a jury the biased rulings of
members of the jpaliciary who are themselves
parties to the action and who have, in fact,
o23e
already been adjudged liable by the first jury and
ordered to pay the Plaintiff substantial damages.
Whatever may have been its intent, poor
draftsmanship has caused the "special resolution"
to fail in its purpose. It provides remission only
of an amount which the judge or justice may be
called upon to contribute to the damages in the
Dacey action, but makes no mention of costs or
fees for the thirteen years' services of the pres-
tigious law firm which has handled the Associa-
tion's defense. Furthermore, a "remission" of
dues equal to the amount they have been called upon
to contribute is a form of refund of monies they
were in fact required to pay out, whereas the
statute states 'When any judge may be liable to
contribute, etc. '' The "special resolution" does
not remove the liability but merely reimburses
the Defendants for sums paid out.
The retrial of Dacey v. Connecticut Bar Assoc-
iation was steeped in legal impropriety. The
action of the trial judge (Naruk) in rejecting as
prors all those candidates who betrayed any aware-
ness of day-to-day happenings in the world
around them was calculated to result in a jury
whose collective intellectual awareness was such
that it provided the Plaintiff with something less
than a jury of his peers.
During the period of preparation for the retrial,
Plaintiff's counsel had acquired a "new law part- -
ner.'' During the retrial, counsel declined to re-
spond to the Plaintiff's urgings that he pursue
the issues more vigorously. Only when the trial
was over did the Plaintiff discover that the ''new
partner" had come directly from a partnership
in the law firm which was defending the Bar Assoc-
-24-
iation. Shortly after the trial, the ''new partner-
ship'' was dissolved.
For the State of Connecticut to require Dacey
to rely upon the rulings of a trial judge inseparable
from one of the parties to the action is to deny
him due process of law and equal protection under
the laws. The Plaintiff's claim against the Defen-
dant Association constitutes a property right within
the meaning of the Fourteenth Amendment. It is
a violation of that Amendment to deprive him of
that right without a fair trial before an impartial
tribunal.
Plaintiff contends that these denials of due
process are too blatant to be swept under the carpet.
This Court's ignoring of them will be seen by the
public as an endorsement of such conduct and an
evidence that we are governed by men in power
and not by laws.
2. IS THE SUCCESSFUL PLAINTIFF IN AN
EARLIER TRIAL OF A LIBEL ACTION AGAINST
THE CONNECTICUT BAR ASSOCIATION BEING
DENIED DUE PROCESS IN THE RETRIAL OF
THAT ACTION WHEN THE FIVE JUSTICES OF
THE CONNECTICUT SUPREME COURT, EACH
OF WHOM WOULD BE REQUIRED TO CONTRI-
BUTE TO SUCH PLAINTIFF'S JUDGMENT AND
DAMAGES, HAVE DECLINED TO OBSERVE CON-
NECTICUT'S STATUTORY PROHIBITION AGAINST
ANY JUDGE SITTING ON AN ACTION IN WHICH
HE "MAY BE LIABLE TO CWTRIBUTE TO THE
DAMAGES, COSTS AND EXPENSES" THEREOF,
WHEN, IN FACT, THEY HAD THE OPTION OF
RECUSING THEMSELVES AND ALLOWING THE
GOVERNOR TO APPOINT FIVE TEMPORARY
SUPREME COURT JUDGES TO SIT IN THEIR
-25-
STEAD OR EXERCISING THEIR OWN STATUTORY
POWERS TO APPOINT NON- DISQUALIFIED
JUDGES TO SIT IN THEIR PLACE?
The proscriptions inherent in Section 51-39 of
the Connecticut General Statutes are as applicable
to the Justices of the Connecticut Supreme Court
as to the judge in the trial court. Each justice falls
within the purview of th statute and is thus disqual-
ified to sit on the Plaintiff's appeal from the
judgment of the illegitimate trial court. An illegiti-
mate relationship cannot produce a legitimate child.
The Justices of the Connecticut Supreme Court
have collectively denied the motion of the Plaintiff
that they recuse themselves. But nomore than
Nixon may that court claim that "when the Court
does it, it is legal.'' (Raoul Berger) The Consti-
tution exalts conformity with it above the demands
of justice; judges are not sworn to do justice but
"to support this Constitution. '' Over the lintel of
the Supreme Court in Washington is inscribed
"Equal Justice Under Law.'' Chief Judge Benjamin
Cardoza wrote that judges do not have ''the right
to ignore the mandate of a statute, and render
judgment in spite of it.'' We must not equate the
assertion of power with its legitimacy.
It is ironic that it is the same John P. Cotter
who, as Chief Administrative Judge of the State of
Connecticut, acknowledged that members of the
Connecticut Bar Association were not in a position
to sit on the trial of Dacey v. Connecticut Bar
Association, who is now the Chief Justice of the
Connecticut Supreme Court and thus the architect
of its blatant disregard for state law and the Con-
stitution of the United States.
«260
The five Justices have claimed that they have a
"duty to sit.'' But that is not so, for as Chief Justice
Cotter acknowledged, there are many judges of the
Superior Court who are not members of the Defen-
dant Association and who cai ld therefore be appoint-
ed to sit on the appeal. The four men and one lady
who constitute the court are not indispensable.
In Mosk v. Superior Court of Los Angeles, L.A,
31140 (197°), and a companion case, Commission on
Judiciary Rerformance v. Court of Appeals for the
Second District, L.A, 11134, six of the seven mem»
bers of the California Supreme Court disqualified
themselves on the grounds of personal interest and
the Governor appointed six lower-court judges to
sit in their stead on a temporary basis. The six
substitute judges then voted unanimously that the
one remaining Supreme Court Justice who had
refused to disqualify himself, was in fact disquali-
fied and he was required to recuse himself, where-
upon the Governor appointed a seventh substitute
to sit in his place. Thus, every member of the
Califo rnia Supreme Court disqualified himself
even though in California there was no equivalent
of Connecticut Statute 51-39. Like the recalcitrant
Justice Mosk in California, the five members of
the Connecticut bench have clung stubbornly to
their avowed course of sitting, though disqualified.
Another Connecticut statute, 8 51-207, bears
upon this situation, providing, inter alia, that
"Each of the parties in any case shall have
the right to be heard by a full court....If any
judge is...disqualified and the .. .disqualifi-
cation is not waived...the chief justice or, in
his absence, the senior judge present. ..may
efile
summon the sixth member of the said court
or one or more judges of the superior court
to constitute a full court, who shall attend
and act as judges of the supreme court for
the time being. "'
From the foregoing, it is obvious that it lies
within the power of Chief Justice Cotter to appoint
whatever number of non- Association member judges
are requiied to provide an unbiased tribunal. And,
indeed, he has done so upon numerous occasions in
the past. When a Connecticut citizen, Nadine
Monroe, filed an appeal to the Connecticut Supreme
Court challenging the constitutionality of a
Connecticut statute (Connecticut Law Journal Vol.
XL, No. 39, March 27, 1979), two justices dis-
qualified themselves and Chief Justice Cotter
appointed two Superior Court judges to sit in
their place for the purpose of adjudicating the
plaintiff's appeal. In Connecticut Light and
Power v. Public Utilities et al (Connecticut Law
Journal Vol Xi, No. 14, October 3, 1978), the
case was heard by one regular Supreme Court
Justice, two judges of the Superior Court and
two retired judges of the Superior Court. In
State v. Tedesco (Connecticut Law Journal, Vol.
XXXixX, No. 50, June 13, 1978), the Supreme
Court panel consisted of three Superior Court
judges and only two regular Supreme Court
Justices.
But when one of the parties is the Connecticut
Bar Association and their individual pocketbooks
are at risk, the Justice Defendants sanctimoniously
cite that hoary old chestnut, Evans v. Gore, 253
U.S. 245, 247-248 (1920) that ''When all are dis-
qualified, none is disqualified, '' which may be
2S.
roughly equated with ''When all are thieves,
none is a thief. |
In seeking to excuse its deprivation of Dacey's
constitutional right to a fair trial before an un-
biased tribunal, the Connecticut Supreme Court
has claimed that in any case, the liability of
the individual members is de minimis. But the
statute does not specify ''a substantial interest, "'
or even "'a significant interest'' -- it simply says
that when any judge may be liable to contribute
any amount to the damages, costs and expenses
of an action, he shall be disqualified. This Court
has ruled in Snaidach v. Family Finance, 89S.
Ct. 1980, that the sum of $3.00 is not de minimis.
In the section on "'Constitutional Law" in
Lord Halsbury's Law of England (1955) Vol. 2, p.
67, we read:
"It is an elementary principle that no man
shall be a judge in his own cause. Therefore,
where persons who have a direct interest in
the subject matter of an imuiry before an
inferior 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 certiorari
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. "'
This Court should find that the Justices of the
Supreme Court of Connecticut have acted in contra-
2%
vention of the U.S. and Connecticut Constitutions’
guarantees of due process and have violated the laws
of Connecticut and the United States. ( 42 U.S.C.
§ 1983, 1985, and 18 U.S.C. 8 241, 242 and Conn.
General Statutes 51-39.
3. DID THE DISTRICT COURT ERR IN DENYING
ITS OWN JURISDICTION IN A 42 U.S,C, SECTION
1983 ACTION PROPERLY REQUESTING INJUNC-
TIVE RELIEF FROM AN UNCONSTITUTIONAL
ACT ON THE PART OF A STATE TRIAL COURT,
WHICH ACT WAS CAUSING GREAT AND IMMED-
IATE IRREPARABLE HARM TO THE PLAINTIFF?
Plaintiff Dacey was faced, inthe retrial of his
tort action in which he had previously been awarded
$60, 000 plus legal fees, with a trial judge, Henry
J. Naruk, who was a member of the Defendant
Connecticut Bar Association. Dacey was age 59
when the action was filed. He is now 72. Rather
than wait through another years-long cycle in the
state court appeals system, he elected to complain
in the U.S, District Court, relying on the mandates
in Monroe v. Pape, 365 U.S. 167 that the federal
remedy was supplemental to, and not mutually exclu-
sive of the state remedy, and tet in Mitchum v. Foster
407 U.S. 242, in Section 1983 cases, the U.S. Dis-
trict Courts are not automatically barred from
ordering injunctive relief from denials of due
process in state civil court actions. Said the
Mitchum court:
"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 protect the people
from unconstitutional action undercolor of
« 30.
state law, 'whether that action be
executive, legislative or judicial’ Ex Parte
Virginia, 100 U.S, at 346. Congress plaihly
authorized the Federal courts to issue injunc-
tions in 1983 actions by expressly 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 proceeding can in some circumstances
be essential to prevent great immediate and
irreparable loss of a person's constitutional
rights. Ex Parte Young, 209 U.S, 123; cf
Traux v. Raich, 239 U.S, 22; Dombrowski v.
Pfister, 380 U.S, 479 (emphasis added), "'
In support of its veneration of the principle of
non-intervention, the Second Circuit cited
Younger v. Harris, 401 U.S. 37, 46 (1971) -- witha
significant omission. What the Younger court
actually said was:
"The Court also made clear that in view
of the fundamental policy against federal
interference with state criminal p.osecution
even irreparable injury is insufficient, un-
less it is "both great and immediate.'...
No citizen or member of the community is
immune fran prosecution, in good faith, for
his alleged criminal. acts....It does not
appear from the record that (petitioner has)
been threatened with any injury other than
tha t incidental to every criminal proceeding
brought lawfully and in good faith....In
Baggett v. Bullitt, 377 U.S. 360 (1964), we
enjoined state officials from discharging
employees who failed to take certain loyalty
oaths....Apart from the fact that any plain-
-3l-
tiff discharged for ¥xercising his constitu-
tional right to refuse to take the oath would
have no adequate remedy at law, the relief
sought was of course the kind that raises no
special problem -- an injunction against
allegedly unconstitutional state action that
is not part of a criminal prosecution....
Here the injury Harris faces is solely that
incidental to every criminal proceeding,
(emphasis added), "'
It is clear that in Younger, this Court was con-
sidering the propriety of a federal injunction in the
context of a state criminal proceeding. Harris had
sought an injunction on the grounds that the state
statute under which he was being prosecuted was un-
constitutional. This Court was saying that a state
has the right to make and enforce laws, and to
prosecute those who violate them.
None of this has the slightest application to the
two cases here at issue since they do not involve
criminal prosecutions, but are civil matters which
have become civil rights matters. To the contrary,
Dacey has the right to expect that the state law con-
cerning judicial disqualification will be enforced.
In affirming, the Second Circuit also cited
Juidice v. Vail, 430 U.S, 327 (1977). That action,
too, revolved around criminal contempt proceed-
ings, and in Juidice, this Court's opinion was
based upon the issue of whether a federal court
should attempt injunctive intervention in an action
brought by a state in the course of enforcing its
criminal laws.
In Huffman v. Pursue, 420 U.S, 592 (1975),
« aae
also cited by the Second Circuit in support of its non-
intervention position, ''the action sought to be en-
joined was for the abatement of a civil nuisance and
therefore closely akin to a criminal proceeding."
(Juidice v. Vail, supra)
In a concurring opinion on Juidice, Mr. Justice
Stevens noted that
"The major premise, underlying the Court's
holding in Younger v. Harris is that a court
of equity should not act when the moving party
has an adequate remedy at law. Consistently
with Younger, a court of equity may have a
duty to act if the alternative legal remedy is
inadequate. Indeed, the major premise under-
lying the Court's holding in Mitchum v. Foster,
407 U.S, 225, is a recognition of the unfortunate
fact that state proceedings are sometimes in-
adequate to vindicate federal rights. "'
This Plaintiff- Appellant has no ''adequate reme-
dy at law, '' and the District Court does have a "duty
to act'' since no "adequate alternate legal remedy"
is available.
"Congress imposed the duty upon all levels
of the federal juridicary to give due respect
to a suitor's choice of a federalforum for
the hearing and decision of his federal con-
stitutional claims. Plainly, escape from
that duty is not permissible merely because
state courts also have the solemn responsi-
bility, equally with the federal courts...to
guard, enforce and protect every right grant-
ed or secured by the Constitution of the
United States....We yet like to believe that
-33-
wherever the Federal courts sit, human rights
under the kderal Constitution are always a
proper subject for adjudication, and that we
have not the right to decline to exercise that
jurisdiction simply because the rights asserted
may be adjudicated in some other form."
Zwickler v. Koota, 389 U.S, 241, 248 (1967).
This is true notwithstanding the possibility of
review by the Supreme Court of state court deci-
sions, for:
"Even when available by appeal rather than
only by discretionary writ of certiorari,
(that possibility) is m1 inadequate substitute
for the initial District Court determination...
to which the litigant is entitled in the federal
courts.'' England v. Louisiana State Board
of Medical Examiners, 375 U.S. 4ll, 416 (1964)
In denying its jurisdiction, the U.S. District
Court incomprehensibly cited Pierson v. Ray, 386
U.S. 547, although Dacey was not requesting money
damages from the Justice Defendants but only an
injunction requiring them to vacate their judgment
and to recuse themselves in order that the case
might be heard before judges not disqualified from
sitting by membership in the Defendant Association.
In addition to Mitchum v. Foster, supra, this
Court has upheld the legal principle that the bene-
fits of comity, abstension and federalism do not
prevent a federal district court from assuming
jurisdiction in 1983 cases which might result in
ordering injunctive relief from the acts of state
courts, in the following decisions:
- 34-
Amalgamated Clothing Workers v. Richman Bros.
1955, 75 S.Ct.452, 455, 348 U.S, 5ll, 516
Baker v. Carr,83S. Ct. 691, 364 U.S. 186 (1962)
Berger v. U.S. 255 U.S. 22 (1921)
Board of Commissioners of Lake County v.
Platt, 79 Fed. 567, 25C,A,A,. 87
Bradley v. Fisher, 13 Wall, 335, 347, (1872)
Commonwealth Coat Go. v. Continental
Casualty Co. 89S. Ct. 337 (1968)
Consumers Union v. Supreme Court of
Virginia, No. 79-718, U.S.
Cooper v. Aaron, 358 U.S.1, 78 S.Ct. 1401
County of Allegheny v. Frank Mashuda Co.,
1959, 79 S.Ct. 1060, 360 U.S. 185, 3 L.Ed.
2d 1163, noted 1963, Vander, L.Rev. 80l
Cousins v. Eigoda, 92 S.Ct. 2610, 1972
England v. Louisiana Board of Medical Exam-
iners, 1964, 84S.Ct. 461, 374 U.S, 4ll
Ex Parte Virginia, 100 U.S. 346
Ex Parte Young, 209 U.S. 123
Home Tel & Telv. City of Los Angeles, 1913,
33 S.Ct. 312, 227 U.S. 278
Hillsborough Township v. Cromwell, 1946
66S. Ct. 445, 326 U.S. 620.
-35-
In Re Ayers, 8 S.Ct. 164
In Re Murchison, 349 U.S. 133, 136 (1955)
Javits v. Stevens, 382 F. Supp. 131 (1973)
Lucas v. Forty-Fourth General Assembly of
the State of Colorado, 377 U.S.713, 34S. Ct.
(459 )
Lynch v. Household Finance, 92 S.Ct. LLL3, 1972
Meredith v. City of Winter Haven, 1943, 64
=. Gt. 7, 320 U.S. 228
McNeese v. Board of Education, 83 S. Ct.
1433, 373 U.S. 668, (1963)
Rizzo v. Goode, 96 S.Ct. 598, 1976
Rondebush v. Hartke, 92 S. Ct. 804,(1972
Shepard v. Maxwell, 384 U.S. 333, 83 S.Ct.
(1966)
State of Louisiana ex Re: Purkey v. Ciolino
393 F. Supp. 102 (1975)
Trainor v. Hernandez, 97S.Ct. L9LL,( 1977)
U.S. v. Livingston, D.C. S.C. 1959, 179 F.
Supp. 9; affirmed 1961, 80S.Ct. L6ll, 364
U.S. 281, 4L Ed. 2d 1719
Vendo Co. v. Electro Vend. Corp. 97S. Ct.
2881{1977)
-36-
This Court's atténtion is again respectfully
drawn to Gibson v. Berryhill , supra, wherein it
ruled that Section 1983 cases are the specific ex-
emption Congress had in mind in enacting the ban
on enjoinment of state court actions. Significantly,
in Gibson this Court found that the state tribunal
was disqualified from adjudicating the issues by
reason of bias -- a situation on all fours with the
instant cases,
As for the "fundamental policy against federal
interference in on-going state court proceedings"
cited by the Second Circuit, this Court's attention
is also drawn to Dombrowski v. Pfister, 83 S. Ct.
1116, 380 U.S. 479, 1965, wherein a District
Court in Louisiana heard a Title 42 Section 1983
case and dismissed it on jurisdictional grounds,
whereupon the Supreme Court reversed, saying
that the District Court had a right and duty to en-
join the state court's action.
The lower federal courts have relied upon
Mitchum and accepted jurisdiction in the following
cases, among others:
Sperry Rand Corp. v. Rothlein, C.A. 2d
1961, 228 F. 2d 245;
Anonymous J. v. Bar Ass'n. of Erie County
C.A.N.Y.1975, 515 F 2d 435, certiorari
denied 96 S,Ct. 71, 423 U.S. 840;
Matherly v. Lamb, D.C. Pa. 1976, 414 F. Supp.
364,
Classic Distributors, Inc. v. Zimmerman,
D.C, Pa. (1974,) 387 F. Supp. 829
=< Os
Federacion de Cooperatives de Credito de
Puerto Rico v. Burgos, D.C. Puerto Rico 1973,
366 F. Supp. 1321
Golden Dawn Shops, Inc. v. Department of
Housing and Urban Development, D.C. Pa. 1971
333 F. Supp. 874
Shaw v. Garrison, D.C. La. 1971, 328 F. Supp.
390, affirmed 467 F. 2d 1L3, certiorari denied
93 S. Ct. 467, 409 U.S, 1024, 34 L. Ed.2d 317
Duke v. State of Texas , D.C. Tex 1971, 327 F.
Supp. 1218, reversed on other grounds 477 F.2d
244, rehearing denied 478 F.2d 1402, certiorari
denied 94 S. Ct. 1565, 415 U.S. 978.
In Adams v. Sampson, F.Supp. __, (D. C.
N.H. 1979) six petitioners convicted of criminal con-
tempt in the state courts and sentenced to serve six
months prevailed in the U.S. District Court and were
freed. In Younger v. Colorado State Board of Bar
Examiners, 79-M-645, a U.S. District Judge struck
down a Colorado Supreme Court rule that clos ed
the state bar examination to applicants who had
flunked it three times. The U.S. District Court in
Massachusetts accepted jurisdiction in Haley v.
Troy, 338 F. Supp. 794, 1972, and issued am order
that a Massachusetts trial judge had denied due
process to the litigants. Again in Massachusetts,
U.S. District Judge W. Arthur Garrity accepted
jurisdiction in Howard v. Kunin, C.A. 73-3813-G,
December 3, 1973, unrepOrted, ordered a i:earing
on a Temporary Restraining Order against a state
trial court and dissolved the attachment on Howard's
house, enabling Howard to sell it and obtain needed
medical treatment. In the instant action, Plaintiff
-38-
Dacey's age and ill health provide a parallel "great
and immediate irreparable harm" and constitute a
basis for invoking the Magna Carta's maxim that
"Justice delayed is justice denied, "' (Article 40),
justifying injunctive relief in the pending state
court civil case Dacey v. Connecticut Bar Assoc-
iation.
As held in Harmon v. Superior Court of
California, 207 F. 2d 796, (1962), '"A claim under
the civil rights act expressly gives the District
Court jurisdiction, no matter how imperfectly
the claim is stated."
It should not be necessary to invoke a law to
obtain the disqualification of a judge whose impar-
tiality is questioned; a decent regard for judicial
ethics and legal tradition should be sufficient. In
the instant action, Dacey had defeated the Connec-
ticut Bar Association in an action with great emo-
tional overtones. Over the vigorous protest of
Dacey's counsel (who later served with distinc-
tion as a judge of the Connecticut Superior Court)
the Connecticut Supreme Court had earlier issued
a libelous ruling that Dacey had engaged in "'sor-
did activities, '' an opinion which a leading profes-
sional journal ascribed editorially to pure ignor-
ance upon the Court's part. There can be no ques-
tion of the Connecticut Justices lack of impartiality.
(See Appendix
The five Connecticut Supreme Court Justices
and the retrial judge are all members of the de-
feated Connecticut Bar Association and were
liable to Dacey in money damages. The state law
forbade their sitting in judgment, but they defied
state law. Because of the twelve-year delay and
«3%
the prospect of still more judicial frustration of
the statute, Dacey exercised his rights under two
laws passed by the Congress of the United States
in anticipation of just such difficulties with over-
bearing state judges -- 42 U.S.C. Sections 1983
and 1985, and 28 U.S.C. Section 2283. The ex-
emption clause in Section 2283 gave the District
Court jurisdiction in Dacey v. Naruk and that
Court should not have denied him relief. Such
denial is reversible error.
As justification for its refusal to accept juris-
diction, the District Court cited Rooker v. Fidel-
ity Trust Co., 263 U.S. 14 (1923) wherein it was
held that when a state court has proper jurisdic-
tion over a matter and constitutional claims are
raised therein, it is the provice and duty of the
state court to decide those claims.
The key words in the Rooker decision are
"proper jurisdiction.'' In Dacey v. Connecticut
Bar Association, the present members of the
Connecticut Supreme Court have no "proper jur-
isdiction, '' all being unarguably disqualified by
both scate statute, the Canons of Judicial Ethics,
and constitutional law. If a court consists of dis-
qualified judges, there is no court - it is
coram non judice. Gruman v. Raymond and Betts,
1 Conn. 40,(1814, If this Court is to give weight
to the argument advanced in Rooker, then it must
address itself to the question: ''Do the justices of
the Connecticut Supreme Court have proper juris-
diction in Dacey v. Connecticut Bar Association? "
What is jurisdiction?
(a) "Jurisdiction" is the right of a tribunal to ex-
-40-
ercise its power with respect to a particular
matter (emphasis added), '' Ballantine's Law
Dictionary, p. 690.
However valid may be the court's right to ex-
ercise power over a general class of matters which
might be presented for its attention, the individual
justices lack the power or authority to adjudicate a
particular matter, Dacey v. Connecticut Bar Assoc-
iation. Lacking the right to exercise power over
that particular matter, they lack jurisdiction
Over it.
(b) "The test of the jurisdiction of a court is
whether or not it has power toenter upon
the inquiry, not whether its conclusion in
the course of it was right or wrong (empha-
sis added).'' Board of Commissioners of
Lake County v. Platt, 79 Fed. 567, 25 C.C.A,
87
The Connecticut statute specifically disqualifies
the respondent justices from entering upon the par-
ticular inquiry in Dacey. Having no power to enter
upon the inquiry, they lack jurisdiction.
(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.) 45l.
The Connecticut statute states that the justies
have no right to act on the particular case before
them. Lacking that right, they lack jurisdiction
over the particular case before them.
(ad) '[ Jurisdiction] is the right to adjudicate
4).
|
concerning the subject matter in the given
case (emphasis added), '"' Reynolds v.
Stockton, 140, 254, 268 ll Supp. Ct. 773
In the''given case'' here involved, Dacey, the
individual justices are prohibited by statute from
sitting in judgment, and being prohibited, they lack
"the right to adjudicate, '' meaning that they lack
jurisdiction.
(e) ''Jurisdiction" is authority to decide the case
either way (emphasis added)." The Fair v.
Speciality Co., 228 U.S, 22, 25, 33 S.Ct. 410
In the matter here at issue, the justices are by
law denied the right to decide the case either way.
Thus, according to this Court's standards, they lack
jurisdiction .
(f) ''INo agreement between individuals can em-
power a court to do an act which it is, by
rules made under a a ‘statute, forbidden _to do
(emphasis added). " 1896 I. O.B. 35.
Here we are told that if a statute forbids
judges to perform an act, no "agreement" (e.g. the
"special resolution" purporting to provide a remis-
sion of dues) can empower them to perform the act
of sitting in judgment. On the appeal in Dacey, the
Defendants lack jurisdiction in the matter.
(g) "[ Jurisdiction] is the power to hear,
determine and adjudicate (emphasis
added). '' 76 SD 210 75 NW 2d 641, 644
The justices obviously do not have jurisdiction
in Dacey, for they are exvressly deprived by
42.
statute of the "power to hear'' a case in which they
are among the defendants liable to contribute to the
damages and costs. Being deprived of that right,
they lack jurisdiction.
In Gruman v. Raymond and Betts, supra, which
involved a successful suit for damages against a
judge who had issued an illegal warrant, an earlier
Connecticut Supreme Court held that:
"There must be a jurisdiction of the process
as well as of the person and cause. 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), "'
The District Court has stated in its judgment
that it has no authority to ''review'' a decision of
a state court. In Gruman, the state court ruled
that there is -o process sanctioned by law in which
a disqualified judge may serve on the bench. To
equate the position of the five Defendant Justices
here with "proper jurisdiction" is to rule that they
are qualified, a finding that conflicts with Gruman.
The District Court cited Rooker as holding
that even if what the state court did was wrong, its
judgment was still valid and beyond appeal. The
Court's argument appears to be that an illegitimate
conspiracy can produce a legitimate end.
In Pierson v. Ray, supra, Justice Douglas made
the significant point that:
"The intention to deprive a person of his
«o 43.
civil rights is wholly incompatible with
the judicial function. When a judge inten-
tionally and knowingly deprives a person of
his constitutional rights, he exercises
discretion or individual judgment; he acts
no longer as a judge, but as a 'minister' of
his own prejudice (emphasis added), "
The five defendant justices propose to rule
whether each of them and each of their associates
in the defendant Association, must reach down into
his pocket and come up with a sum of money which
a lower court jury had earlier ordered him to pay
to the Plaintiff. Can it be said that in refusing to
obey the Connecticut statute requiring them to dis-
qualify themselves, these Defendants are not a
"minister of their own prejudices?" Is this Court
prepared to tolerate the Defendants' unconscionable
violation of the Code of Judicial Ethics and the civil
rights secured to the Plaintiff under both state and
federal law?
When Dacey v. Naruk was filed, it was original-
ly assigned to District Judge H. Gilroy Daley, a
member of the Connecticut Bar Association. In
recusing himself, Judge Daley stated that he was
doing so "in the irterest of justice,'' a recognition
of his disqualification under the statute. If he was
disqualified, Judge Naruk was equally disqualified
from hearing Dacey.v. Conn. Bar Association.
As to the District Court's citation of Rooker
supra; aside from the fact that the case cited was
not a civil rights matter under Section 1983, as is
Dacey , the Plaintiff/Appellant questions the citing
of a 1920 decision while passing over the historic
1961 case of Monroe v. Pape, 365 U.S.167, 183, 81
-44-
S. Ct. 473, wherein the United States District
Court for the District of Northern Illinois ruled that
Monroe could move against Pape and the State of
Illinois on the grounds that his civil rights had
been violated by orders issued by state courts.
The Supreme Court found that Monroe could move
against the individual state employees who had
deprived him of his civil rights.
As to the District Court's citation of Anderson
v. Lecon Properties, Inc. 457 F.2d 929 (1972) and
Tang v. Appellate Division of N.Y. Supreme Court,
487 F.2d 138 (1973); the circumstances of these
actions have significant difference from those in
Dacey v. Cotter, et al. In Anderson, both parties
freely acknowledged that the Minnesota state court
had jurisdiction. In Dacey, the Plaintiff has indis-
Putably shown that the five individuals comprising
the Supreme Court of Connecticut are disqualified
by law and therefore are without jurisdiction.
Their claim of jurisdiction is thus a fraudulent
one. Anderson involvedno such claims of dis-
qualification.
Tang, on the other hand, was dismissed be-
cause the plaintiff, having been denied his rights in
a lower court, took an appeal to the appellate state
court. Rejected there, he chose not to carry his
case to the New York Court of appeals, the state's
highest court. Instead, he filed a 1983 action in
the Federal District Court. That court ruled that
since he had elected to litigate the constitutional
issue in the state appellate court, he was obliged
to accept the decision of that court. If he had
chosen to go directly to the District Court on
constitutional grounds after his rejection in the
lowest state court, the Second Circuit found, the
-45-
District Court would have had jurisdiction. In
Dacey, the Plaintiff did not appeal the constitu-
tional issue to any state court. Indeed, there
was no state court to whom it could be appealed.
Instead he went directly to the District Court --
exactly what he was, by law, supposed to do.
As to the District Court's contention that only
the U.S. Supreme Court has authority to inter-
vene in state court matters, the Supreme Court ob-
served in Mitchum v. Foster, supra, that ''The
very purpose of Section 1983 was to interpose the
the Federal Courts between the states and the
people, as guardians of the peoples! federal rights,
etc. '' Significantly, the Supreme Court used the
term "federal courts, '' a plural form, which clearly
indicated that the reference was to the district
courts and not to the Supreme Court itself. The
"federal injunctive relief'' to which the decision
refers would, of course, have to originate in the
district courts. f
/
Title 28, Section 1443 of the U.S. Code pro-
vides that when any state fails to provide equal pro+
tection under its law, the damaged party may cause the
action to be removed to the U.S. District Court. If,
as a result of the applicability of Section 51-39 of
the Connecticut General Statutes, any judge of the
Connecticut courts has ever recused himself in the
interest of providing justice to a litigant -- and the
Plaintiff/Appellant has already cited numerous in-
stances where the Justices of the Connecticut Su-
preme Court have recused themselves and given
way to substitutes drawn from the lower courts --
and the Defendants here do not similarly recuse
themselves, this Plaintiff will not have received
equal protection under the law, and under Title
28 Section 1443, his civil rights will have been
-46-
violated.
It is settled that it is the duty of the District
Court to uphold any state law which it does not con-
sider unconstitutional. No claim has ever been
made that Section 51-39 of the Connecticut General
Statutes is unconstitutional, being intended to pro-
tect Connecticut citizens’ right to due process. Ergo,
in the absence of a state court to whom the Defendants'
violation of the state law can be referred, it is the
duty of the federal district court to.uphold the Connec-
ticut law, first assuming jurisdiction.
The U.S. District Court should have protected
Dacey's property right under the 14th Amendment to
his enjoyment of the $60,000 judgment awarded by the
first jury, by enjoining the trial judge from enforcing
his order based upon the judgment of the illegally-
constituted state court in favor of the Defendant Bar
Association.
In holding that it had jurisdiction over a § 1983
action for money damages for the purpose of dismis-
sing it on the grounds of judicial immunity but that it
had no jurisdiction to consider the merits af a request
for injunctive relief, the District Court committed re-
versible error. In United States v. McLeod, 385 F 2d
734, 738 n (5th Cir. (1967) it was held that while judges
are immune from liability for damages in suits under
42 U.S.C. Section 1983, that does not mean that they
may not be enjoined from pursuing a course of unlawful
conduct. See also Javitz v. Stevens, 382 F.Supp. 13l
(1973); Mills v. Larson, 56 F. R.D. 63 (1972); State
of Louisiana Ex Rel Purkey v. Ciolino, 393 F. Supp.
102 (1975), and Saffioti v. Wilson, 392 F.Supp. 1335
(1975)
In State Ex Rel Brockman v. Proctor, 298 N.E.
-
2d Ohio 532 (Ohio 1973), it was held that "a fair
trial in a fair tribunal is the basic requirement of
due process. " [t should have been obvious to the
District Court that it had a duty to protect Dacey's
right to such a fair tribunal by enjoining the state
courts from depriving him of due process.
In another historic case, In Re Ayers, 8 S.Ct.
164, 123 U.S, 443, this Court laid down the doctrine
that federal action against a state officer was not
barred where his action was a wrong simply as an
individual act. In Dacey v. Cotter et al, the Defen-
dants' violation of a state law specifically directed at
controlling theconduct of judges is a wrong within
the meaning of Ayers, and each of the five Defen-
dants, called upon individually to refrain from such
violation, has indicated an intention to proceed with
it. This despite the fact that the acts which
Dacey seeks to have enjoined are strictly forbidden
by the state. Only federal injunctive relief can
prevent the doing of that which should not be done.
It is beyond question that the deprivation of Dacey's
rights is unconstitutional. If this Court recognizes
that it is unconstitutional and contrary to unchallenged
state law, how can it do otherwise than reverse the
District Court and order it to hear the case on its
merits?
In Meredith v. City of Winter Haven, 64 S.Ct.
7, 320 U.S, 228, (1943), the District Court dismissed
the action on the merits, but the Court of Appeals
ordered that the dismissal be on abstention grounds.
The U.S. Supreme Court reversed and ordered the
lower court to reinstate the complaint and decide
the case, Chief Justice Stone holding that:
"The difficulties of ascertaining what the
-48-
state courts may hereafter declare the
state law to be do not in themselves afford
a sufficient ground for a federal court to
decline to exercise its jurisdiction to decide
a case which is properly brought to it for a
decision. "
Failure to act (state inaction) to protect civil
rights is denial of due process and actionable
under Section 1983. Kauper, Civil Liberties and
The Constitution, U. Of Michigan Press, Chapter 4,
p. 129.
This Court ruled unanimously in Napue v. Illinois,
(1959) 69 S. Ct. 1173, 1178, 360 U.S. 264, 271 that:
"The duty of this Court to make its own
independent examination of the record
when federal cors titutional deprivations
are alleged is clear, resting, as it does,
on our solemn responsibility for maintain-
ing the Constitution inviolate."
The Roscoe Pound-American Trial Lawyers
Foundation, made up of 50 law professors, deans,
bar presidents, legislative leaders and journalists,
has claimed that this Court has allowed the erosion
of individual rights by giving too much deference to
state courts.
In 'The Courts: The Pendulum of Federalism, "'
(1979),. the Foundation asserted that the Court has
"inappropriately used deference to state courts as
a 'smoke screen' in dealing with issues of habeas
corpus, due process and civil rights. We are
alarmed at decisions that fail to define or enforce
individual rights.and liberties in the name of
deference to state and local institutions of govern-
-49-
ment. In recent years the Supreme Court has
not lived up to its obligation to assure that it and the
lower federal courts afford adequate redress for
claims of violation of federal rights. "'
Ptaintiff/Petitioner has presented a wealth
of case history from this Court and Circuit Courts
of Appeals confirming that by all the standards
of the past, (a) he has been denied due process by
the Defendants, and (b) in dismissing the action
in the case of Dacey v. Naruk and in denying juris-
diction in the case of Dacey v. Cotter, et al, the
District Courts have not only been inconsistent but
both have erred.
That there has been judicial impropriety in
Connecticut is clear. That it has involved the de-
privation of constitutional rights is equally clear.
Can this Court put its imprimatur on such legal
wrong-doing ?
* * *
Pursuant to 28 U.S.C. Section 46 (c) the
Plaintiff/Petitioner respectfully requests that in
view of the constitutional issues here involved,
this Petition for Certiorari be granted.
- 50-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
No.
NORMAN F. DACEY
Petitioner
v.
JOHN P. COTTER, JOSEPH W. BOGDANSKI,
ALVA P. LOISELLE, JOSEPH S. LONGO
and ELLEN A. PETERS
Respondents
and
NORMAN F. DACEY
Petitioner
Vv.
HENRY J. NARUK
Respondent
APPENDIX TO
PLAINTIFF/APPELLANT'S BRIEF
-5l-
APPENDIX Page
TABLE OF CONTENTS
Letter dated March 10, 1977, from
Norman F. Dacey to Hon. John P.
Cotter, Chief Court Administrator
of the State of Connecticut ......... eee ees A-1l
Letter dated March 17, 1977 from
Hon. John P. Cotter, Chief Coart
Administrator, State of Conn. to
Norman F.. Dacey .cccccsccccccccce eccoce Bel
Order of U.S. District Court Judge
Jon O. Newman dated Nov. 18, 1977
dismissing Plaintiff's action against
Judge Henry J. Naruk ........ Ceecccveece C-1l
Memorandum of U.S. District Judge
Thomas F, Murphy dated March 9,
1979, dismissing Plaintiff's action
against Judge Henry J. Naruk ........... D-1
Connecticut Supreme Court July 24,
1979 Denial of Plaintiff's Motion For
Recusal of Justices in Dacey v.
Conn. Bar Association Appeal ........... E-1
U.S. District Judge T. F. Gilroy
Daley's Sept. 6, 1979 order recusing
himself in Plaintiff's action against
John ©. Cotter, ot Ob .cccccccccccevcs errs i.
- 52-
U.S. District judge Helen B.
October 5, 1979 Dismissal of Pen a setts
Complaint seeking injunctive relief in
Dacey v. Cotter, et al....... TEeTTTETTT G-l
U.S. Court of Appeals for the Second
Circuit's March 3, 1980 Dismissal of
Plaintiff's appeals from District Court
in Dacey v. Naruk and Dacey v. Cotter,
yee eee ee eT eee coos Heol
Supreme Court's Denial of March 29,
1980 of Plaintiff's Motion for Writ of
Mandamus to the U.S. Court of Appeals
for the Second Grcuit.........cccecees soo 4
U.S. Court of Appeals for the Second
Circuit's May 13, 1980 denials of
Plaintiff's petitions for rehearing
and rehearing en banc, of that court's
dismissal of Plaintiff's appeals in
Dacey v. Naruk and Dacey v. Cotter,
Ot Ble ccccccee Cece cecesccorccscceccons sooo Jon
-53-
NorMAN F. Dacuy
SiG-A Lenitauk Viiraan
SoutTuvury, CONNECTICUT OG408
TEL. (40U) 264-4440
March 10, 1977
Honorable John P, Cotter
Chief Court Administrator
Drawer N
Station A
Hartford, Conn, 06106
Dear Judge Cotter:
I am the plaintiff in an action against the Connecticut Bar
Association which has long been in litigation. On April 6, 1976,
the Connecticut Supreme Court remanded it for retrial and it has been
on the “ready” list in Bridgeport since September,
The lengthy litigation has been complicated by the fact that
every member of the judiciary who has been called to act in connection
with it has been dwbarred by Connecticut General Statute 51-39 from
sitting in judgment on the case by reason of the fact that they were
themselves members of the defendant bar association and thus liable
to contribute to the damages and cests of the action,
On Tuesday, March 1, at the call of jury cases in Bridgeport
before Judge Irving Levine, counsel for the defendant bar assoc-
iation moved for a continuance of at least six months on the grounds
that the defendant could not obtain a fair trial in Bridgeport because
of the newspaper, radio and television publicity which has attended
the hearings. Judge Levine, noting the fact of his own disqualification
to act on the motion by reason of his membership in the defendant ass-
ociation, assigned the motion for a hearing before Judge Ellen B. Bums,
then sitting on the court side in Bridgeport. Judge Burns is not a mem-
ber of the bar association,
Judge Burms has just ruled that there is nct sufficient evidence
to support the motion for continuance, and has denied it. The matter
is therefore now ready for trial, being third on the list. Judge Levine
being the only one sitting on the jury side, the question of his dis-
qualification must now arise again.
In view of the unusual circumstances, the recurring problem of
disqualification, and the fact that the matter has now been in litigation
for an entire decade, may I respectfully ask Your Honor if it would not
be possible to assign Judge Burs, as the only member of the judiciary
not prohibited by statute from hearing the case, to sit on the matter?
Trial being imminent, I respectfully bespeak Your Honor's
early consideration of my request.
Very truly yours,
VE OA
Norman F, Dacey
i STATE OF CONNECTICUT
SUPREME COURT
CamMeeEns oF
sOnN PO COTTER March 17, 1977
JUSTICE HARTFORD
CHIEF COURT ADMINISTRATOR
Mr. Norman F. Dacey
516-A Heritage Village
Southbury, Connecticut 06488
Dear Mr. Dacey:
TI have just received your letter of March 10, 1977
concerning aretrial cf Dacey v. Connecticut Bar
Assn., 170 Conn. 521.
There are a number of judges who ae not members of the
Connecticut Bar Association who would be in a position
to try this case. I am, therefore, sending a copy of
your letter to the Honorable Irving Levine, Acting
Administrative Judge of the Superior Court in Fairfield
County at Bridgeport to resolve this matter.
I would also suggest that the attorneys who represent
you discuss this matter with Judge “Levine so that it may
be reached for a trial as quickly as possible.
Very truly yours,
t Administrator
JPC/fec
cc: Hon. Irving Levine
as
a
tue dt 950 RH '77
y sTnet
~ os me T
UNITED STATES DISTRICT COURT §4I0CEPORT. own
DISTRICT OF CONNECTICUT
Vv. : CIVIL NO, B-77-269
Following this Court's sua sponte dismissal of
plaintiff's complaint against defendant on grounds of absolute
judicial immunity, plaintiff has moved to alter or amend the
judgment and for leave to file an amended complaint. The
amended complaint contains two damage claims and three claims
that purport to seek equitable relief, The damage claims,
allegedly grounded on federal antitrust provisions, still
encounter the bar of judicial immunity since the only actions
of defendant alleged to create personal liability are actions
taken in a judicial capacity in the course of adjudicating a ;
lawsuit, While equitable claims do not encounter the bar of
judicial immunity, the claims alleged by plaintiff manifestly
do not state claims on which relief can be granted, One claim
eeks an order for jury trial in this case, a "claim"
bviously dependent on the existence of some valid claim for
ltimate relief somewhere in the complaint. Another clain
eeks assignment of plaintiff's state court action against the
ecticut Bar Association for retrial in the state courts.
is Court has no appellate jurisdiction over the state courts
aa soe 66 ai
én
and no jurisdiction to order such a retrial. Finally, plain-
tiff seeks an order that the judgment in his state court
action against the Connecticut Bar Association be "quashed"
and that the defendant state court \judge be enjoined from
enforcing that judgment. Such a claim is a transparent
attempt to have this Court exercise a non-existent appellate
function with regard to the state court proceedings.
So that plaintiff's record in this Court will be
complete, the plaintiff's Motion for Leave to Amend Pleading
(i,e., file an amended complaint) is granted, the Motion to
Alter or Amend Judgment is denied, and, solely to be sure
that plaintiff's procedural maneuvers have not inadvertently
defeated his federal appellate rights, the Clerk of this Court
is directed to enter an additional judgment dismissing the
action,
Dated at Hartford, Connecticut, this /@ day of
November, 1977, :
Q.
Jon 0. Newman
United States District Judge
ot
4
ecoesnun@aet & 8B
—
_ a me —
eo we + SC
14
FHS
Hen J} Mag 78
“WER MAYEN. CON
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
NORMAN P. DACEY, 3
Plaintiff, 3 CIVIL ACTION No. B-77-269
vs.
HENRY J. NARUK, : MEMORANDUM
Defendant. $
meocece eee ee eo x
MURPHY, D.J.
Defendant's motion to dismiss is granted,
Dacey v. Dorsey, 568 F.2d 275 (2nd Cir. 1978); Dacey
v. House, 573 F.2d 1289 (2nd Cir. 1977); Scarrella v.
Midwest Federal Savings and Loan, 536 F.2d 1207, 1209
(8th Cir.), cert. denied, 429 U.S. 885 (1976); Stump
v. Sparkman, 435 U.S. 349 (1978), reh. denied, 98 S.C.
2862; Imbler v. Pachtman, 424 U.S. 409 (1976); Pierson
v. Ray, 386 U.S. 547 (1967).
Thomas F. Murphy J
Senior United States District Jud
!
Dated: March 9, 1979.
RECEIVED
MAR 15 STs
ATTORNEY GENERAL'S OFFICE
UNIT I
NO. 8716 © SUPREME COURT
Norman I", Daccy STATE OF CONNECTICUT
vs. July 24, 1979
Connecticut Bar Association
ORDER
The plaintiff/appellant's Motion
for Recusal
having been presented to the court
it is hereby
ORDERED denied.
By the Court,
CHIEF CLERK OF
SUPREME COURT
w
MP
UNITED STATES DISTRICT COURT Fle n
DISTRICT OF CONNECTICUT --
ViERS
U.S. CISTRICT COuFI
BRICCEPSRT. CONN
NORMAN F. DACEY,
Plaintiff,
-Vs- :
2
JOHN P. COTTER, et als, Civil No. B-79-338 2
Defendants.
ORDER
Clarie's consent, this case hereby is transferre:i to the
docket of Judge Clarie.
It is so Ordered.
Dated at Bridgeport, Connecticut this 6th day of
September, 1979.
ad
Toe 3
a 5 AG.
7 T
T. F. GYLROY DALY
United States District Judge
a a ee ee > = =:
UNITED STATES DISTRICT CORT 2 on™ "76
DISTRICT OF CONNECTICUD.. - 2 <r ccyar
NEW KAVEN, CONN.
NORMAN F. DACEY
Vv. : CIVIL NO. 8-79-338
JOHN P. COTTER, ET AL
MEMORANDUM OF DECISION
This action, brought under 42 U.S.C. §1933, seeks
a mandatory injunction to prevent the hearing by the
defendant justices of the Supreme Court of Connecticut
of the plaintiff's appeal from an adverse judgment in
the re-trial of his libel suit against “she Connecticut
Bar Association.
Plaintiff claims that the membership of the Justices
in the Connecticut Bar Association, together with tneir
possible liability on any award of damages and costs,
requires shat court to recuse itself under the provisions
of ¢.G.S8. $51-39.~” He alleges that the court denied
nis motion that it do so, and that the court's fuilure
to recuse will deprive him of his constitutional rtzht
to a fair trial.
Pending before this court are plaintiff's motion
for a preliminary injunction and motion for disqualifi-
cation, the latter the question of whether the office
of the state's attorney general may properly represent
the judges of the state Supreme Court. These ‘notions
need not be addressed however, since tie court Sinus
that it has no jurisdiction to decide ‘his tavte:.
Defendants urge some interesting arguments “hat
the injunction should not issuc. They point to Dicey v.
House, Civil No. 3<76-146 (D0. Conn. Feb. 15, 1977)
(ruling on defendants' motion to dismiss) ind 2
House, Civil No. 3-76-1456 (D. Conn. May 27, .377)
G-l
oe eg ee
(denial of motion for amendment or alteration of
judgment under rules 59-60 of the Federal Rules of
Civil Procedure) and urge that Judge Zampano's dismissal
of the claim for damages based on the same arguments
as presented here and his denial without written opinion,
of the motion to amend to add a claim for injunctive
relief constitute a decision on the merits that injunctive
relief is not warranted. Citing Expert Electric, Inc. v.
Levine, 554 F.2d 1227, 1233 (2d Cir. 1977) they contend
that the defendants here are "in substance [persons]
whose interests were at stake in the prior litigation”
(which involved the then justices of the Connecticut
Supreme Court) and thus the doctrine of res judicata
bars the relief requested here.
Defendants also point to the statement of the Second
Circuit in Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir. 1978)
where the court declined to decide whether a party, at
whose instance recusal is sought and denied, ever has a
Claim under the civil rights statute. Instead, the
Second Circuit noted that, when plaintiff Dacey asked
the Connecticut Supreme Court to recuse itself from
hearing the Bar Association's appeal of Dacey v.
Co t r_Ass'n., 170 Conn. 520 (1976), there was
no other forum available for the State Court appeal.
Citing Evans v. Gore, 253 U.S. 245, 247-48 (192C), the
Second Circuit said in effect that recusal was unnecessary:
"When 211 are disqualified, none is disqualified.”
Defendants argue that this is still the law of this
Circuit.
This court finds, however, that it may not consider
these arguments because it lacks subject matter ‘uris-
diction over the matter in controversy. The vsenscon vor
G-2
|
My
this is the nature of the relief sought, a mandatory
injunction prohibiting the Connecticut Supreme Court from
hearing the matter, on the ground that a fair hearing
before them is impossible.
Coming, as this action does, after a decision by
the Connecticut Supreme Court that its hearing the case
would not be improper, it amounts, in effect, to 2 request
to this court to review that decision of tne connecticut
Supreme Court. In this, it is very like the instant
plaintiff's attempt in Dacey v. Naruk, Civil No. B-77-269
(D. Conn. Nov. 21, 1977) to have the District Court quash
the verdict of the Superior Court in the re-trial of
plaintiff's libel suit, on the ground that Judze Naruk's
refusal to recuse himself because of his membership in
the Connecticut Bar Association amounted to a denial of
plaintiff's civil rights. In his decision on plaintiff's
motion to alter or amend judgment in Naruk, Judre Newman
characterized the motion as "a transparent attempt to
have this Court exercise a non-existent appeilate function
with regard to the state court proceedings." Slip op.
at ed.
The United States Supreme Court held in Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), that, when a
state court has proper jurisdiction over a matter 2nd
constitutional claims are raised therein, it is the
province and duty of the state court to decide those
claims. ;
If the decision of the state court is wrong, that
does not void the validity of the judgment and "(uinder
the legislation of Congress, no court of She ‘ntted States
other than this Court [f.e. she Unitece Staves Supveone
G-3
Court] could entertain a proceeding to reverse or modify
the judgment for errors of that character." 263 U.S. at
416.
The principle that federal courts of inferior juris-
diction have no jurisdiction to review alleged errors
in state court judgments has been held to apply to
§1983 cases where the state court action ‘is attacked as
unconstitutional, even if the constitutionai issue was
not raised in the state court. Anderson v. Lecon
Properties, Inc., 457 F.2d 929 (8th Cir. 1972) cert. den.
409 U.S. 879 (1972) cited with approval in Tang y.
Appellate Division, 487 F.2d 138, 142 (2d Cir. 1973), cert.
den. 416 U.S. 906 (1974);
Therefore, this court does not have jurisdiction
to hear this action, which is in the nature of an inter-
locutory appeal; the proper forum is ultimately the
United StatesSupreme Court. It should be noted that in
this matter of jurisdiction, this case is distinjjuishable
from Dacey v. Dorsey, Civil No. B-76-190 (D. Conn.
Feb. 18, 1977), aff'd 568 F.24 275 (2d Cir. 1978),
Dacey v. Naruk, Civil No. B-77-269 (D. Conn. Jan. 31,
1978), and Dacey v. House, Civil No. B-76-146 (Feb. 16,
1977), aff'd 573 F.2d 1289 (2d Cir. 1977), all cases in
which this court had Jurisdiction. In Dacey v. Dorsey,
the District Court was not faced with effective over-
ruling of a state court action. Instead, the complaint
sought damages and injunctive relief for the allemed
failure of a United States Attorney to investigate or
otherwise act upon a complaint of unconstitutional action
by the Connecticut Supreme Court.
Tn both Dacey v. Naruk and Dacey v. lounec, ciin
G-4
District Court was initially presented with a $1983 claim
for damages against the Connecticut Supreme Court for
allegedly unconstitutional action. Of course, the state
court is immune from a suit for damages, but this court
has jurisdiction to so declare because seeking damages
for an action of a court is not the same as seeking to
require the court to rule differently or not to act on
its ruling. Only when the latter is sougnt, is the
District Court in the position of a potential appeals
court and thus only then is it lacking in jurisdiction.
When plaintiff sought to amend to add injunctive
relief in Naruk, Judge Newman denied the amendment for
the reasons stated herein -- an attempted exercise of
non-existent appellate jurisdiction. Civil No. B-77-269
(D. Conn. Nov. 21, 1977).
When injunctive relief was sought to br: udded in
House, Judge Zampano denied the motion without opinion.
Civil No. B-76-146 (D. Conn. May 17, 1977).
It should be clear from this discussion that the
Outcome in the instant case would net have been different
had plaintiff sought both damages and injunctive relief.
The damage claim would have given the court jurisdiction
Only on the damage issue; that Jurisdiction would not
have extended to allow this court to consider the request
for injunctive relief.
Accordingly, the action is dismissed for lack of
subject matter jurisdiction. ‘
SO ORDERED
o, ”
ie en a 5
os « ‘
Lh HO Asics
UNITED STATES DISTRICT WIGGF,
Dated at New Haven, Connecticut, this _$ ~ ny o°
October, 1979.
G-5
V/
Disqualification by relationship or interest.
Judge may act with consent of parties. 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 damages, costs or
expenses or any such proceeding, or wnen he
may receive a direct pecuniary benefit by the
determination thereof, he shall be disqualified
to act, except as herein provided. No judge
shall be disqualified to act in any proceeding
by reason of his being a member of any ccelesi-
astical corporation, unless it is a party to
the action, nor in any proceeding in which
any town, city or borough is a party or interested,
by reason of his being an inhabitant thereof
or liable to taxation therein or by reason
of his being related to any taxpayer or in-
habitant thereof. When any judge is dis-
qualified to act in any proceeding before
him, he may act if the parties thereto consent
in open court.
G-6
ee
Cuuted Siates Cuuct of Appeals
FoR Tre
JSECOND 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
3rd
one thousand nine hundred and eighty
Present: HONORABLE IRVING R. KAUFMAN,
Chief Judge.
HONORABLE WILLIAM H. TIMBERS,
Circuit Judge.
HONORABLE HENRY F. WERKER,
District Court Judge, sitting by
designation.
Cinesdk fudgeax
NORMAN F. DACEY,
HENRY J. NARUK,
Plaintiff-Appellant
Defendant-Appellee
79-7657
NORMAN F. DACEY, . 79-7857
Plaintiff-Appellant
Vv.
JOHN P. COTTER, -
JOSEPH W. BOGDANSKI, mit hf & a
ALVA P. LOISELLE, i { is Pkieg A
JOSEPH S. LONGO, f
ELLEN A. PETERS, Defendants-Appellees
wee. Lo
fey,
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 counsel for appellees and by
acpellant pro se.
day of March
is now hereby ordered, adjudged,
ON CONSIDERATION WHERECF, it is now by of said D at
and decreed that the
judgments
Court be and it hereby are affirmed.
Appellant has failed to allege facts sufficient to overcome
the “fundamental policy against federal interference” in ongoing
state court proceedings. Younger v. Harris, :
(1971); accord, Huffman v. Pursue, 420 U.S. 592 (1975); Judice
v. Vail, 430 C.s.
401 U.S. 37, 46
1977). This court has indicated previously
that appellant's constitutional allegations state "no claim
H-1
Docket Nos. 79-7657
79-7857
cognizable in the federal courts.” Dacey v. Dorsey, 568 F.2d
275 (2d Cir.), cert. denied, 436 U.S. (19 - Accordingly,
the district courts were without jurisdiction to award the
relief requested. See Rooker v. Fidelity Trust Co., 263 U.S.
412 (1923).
dr )
te rg Pte
: NG R. KA , Chief Judge.
/,;
2 os ie:
f Af. Sg ee
a - ERS, Circuit Judge
Hy Zz Nth
, District Judge.
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON. D.C. 20543
March 24% 1989
Norgaan F. Oacey
69 crovers Ave.
Yridgeports CF 966C5S
RE: WNorag@an F. Oacey
we Henry Je Naruks et al.
No. 79-1390
Dear Mr. Sacey:
The Court today entered the following order in
the above-entitled case:
The sotion for teave to file a petition for writ of
Sandasus-is denied.
Very truly yourss
Michsel Rodakse Jree Clerk
/
I-l
or? 222% &, wa. b,.. ? “af “, e ¢e oo?
sor°ey af « See OF Ge BOR
Oe ee ee c~- a —~ ~ we fesse +.
dd ee ed —<
Sr ee ee ee
At a Steted Taree of the United Situs Cozzi of S.pzeals, in so the E:cen3 Cis 2t,
held at the United Sates Coum Hous, ¢
day of “*Y . » Ona thonrast
SON, IRVISG R. AAUINAD
Crief Juds
EON. WILLIAM H. TIMBERS < . es
ee Pease Cte -
- SOK. HENRY 2, WERKIR :
as District Judce
WORAN F, CACTY
a \ ‘Plainti££-Apoellanz
Vv: 739-7037
HENRY o. NARVK ;
Defendant-Aorellesc
SOMA F. DACZY
Plaintiff-Sosellan=z
"7 ;
JOM 8. COPTER, POSSFE 4 ESSSDANSKT;, ALVA PB. 23-7355
LOITStLLe, JIStPHK S. and EL2Y A. PETERS
factividaaliy an@ ir their cayacity 2s Justices
92 she Suseere Court of Csansweticout *
: _.--Uefendants-Aspell-os
A petiticn 2e> 2 rehearing having been 2ilsd Lereia
by > :intiff-apcelient oro se. . :
Upon comsideration therec?, it is
Ordered that said petition te and hereby is :.,;
a..Ganiel Fesere, C2
emer eee a
| BEST GOPY AVAILABLE
webee
o*
ee ee ee ee ee
=i) See
Sam ee
J-2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.