Opposition Brief — Simmons v. Connecticut

faspteme Court, U.S,

(2) FILED

No. 90-1807 JUL 12 1991

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

¢

AUGUSTUS J. SIMMONS,

Petitioner,

V.

STATE OF CONNECTICUT AND CONNECTICUT

DEPARTMENT OF TRANSPORTATION,

Respondents.

¢

Petition For A Writ Of Certiorari To The

Connecticut Supreme Court

*

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION

¢

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

KENNETH N. TEDFORD

Assistant Attorney General

State of Connecticut

55 Elm Street

Hartford, CT 06106

(203) 566-2257

(Counsel of Record)

ARNOLD K. SHIMELMAN

Assistant Attorney General

State of Connecticut

251 Maxim Road

Hartford, CT 06114

(203) 566-2298

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

¢

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Should petitioner’s cause be reviewed by this Court?

il

TABLE OF CONTENTS

Page

ab) 5 8 By |) ) rr re i

peek ee wo 8 |) errr. iii

SiAreeeans OF THE CASE. . ow... ccneescccesneten 2

REASONS FOR DENIAL OF THE PETITION....... 7

PIPE 6a cine dceuscuns VON eek eune ese eeeEe 8

SEITE vases vcunincdéesenew eae einen 16

iil

TABLE OF AUTHORITIES

CASES:

Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972) ..9, 11

Barnhart v. Brinegar, 362 F.Supp. 464 W.D.Mo

EE RE SS yr oe 14

City of Columbia v. Costle, 710 F.2d 1009 (1983) ...... 15

Consumer Power C. v. Costle, 468 F.Supp. 375 C.

Ee re ee 14

Duguay v. Hopkins, 191 Conn. 222, 464 A.2d 45

Ga oan es bs bode shan sada nddensnas » i

Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666

SEE Re ee 14

Horak v. State, 171 Conn. 257, 368 A.2d 155 (1976) ....12

Horton v. Meskill, 172 Conn. 615, 376 A.2d 359

Ne eee etn edeees sees 8, 9

Kinney v. State, 213 Conn. 54, 566 A.2d 426 (1989)..... 8

Murphy v. Ives, 151 Conn. 259, 196 A.2d 596 (1963) . .9, 11

New Haven v. East Haven, 35 Conn. Supp. 157, 402

ee ie ean sh icc kn ngkabbbesrerecss 15

Parden v. Terminal R. Co., 377 U.S. 184 84 S.Ct. 1207

EEE Oe a ee ere 15

Rubin v. Department of Housing and Urban Develop-

ae oer wae. Soo O.Fa. (1972)................ 14

Sentner v. Board of Trustees, 184 Conn. 339, 439

EO ee ee 10

Simmons v. Burns, 9 Conn. App. 802, 516 A.2d 664

| TSG RS GUNA ch nee nn casesees 4

iv

TABLE OF AUTHORITIES - Continued

Page

Simmons v. Burns, 201 Conn. 815, 518 A.2d 72

RG ed) Data irae Oar a ei aes Bie ate oa 4

Simmons v. Wetherall, 180 Conn. 587, 430 A.2d 1296

ee ek ee te et a ie eat Nee 3, 4, 5

Simmons v. Wetherall, 3 Conn. App. 672, 491 A.2d

UN ho a ee a a eee ae 4

|

Struckman v. Burns, 205 Conn. 542, 534 A.2d 888 |

RL De iced bbe aber cake he bret ae ee ies 10

Textron, Inc. v. Wood, 167 Conn. 334, 355 A.2d 307

SS CAL cin uty l ate etackeuis Gea ee eaka wis oe 9, 11

Upson v. State, 190 Conn. 622, 461 A.2d 987 (1983) .... 12

STATUTES: |

STATE: |

ee tee, a, Gr, TN oe i ie vk oe en ean eeee 10, 11

FEDERAL:

I oe et ee naa 13

ee os ie cane Ge cee ekea kena 13, 14, 15

ee eS ln i ov wun abe daeckeeanécaawieke 14

I ae aes GLE a A era 14

_

No. 90-1807

anne

In The

Supreme Court of the United States

October Term, 1991

¢

AUGUSTUS J. SIMMONS,

Petitioner,

STATE OF CONNECTICUT AND CONNECTICUT

DEPARTMENT OF TRANSPORTATION,

Respondents.

o

Petition For A Writ Of Certiorari To The

Connecticut Supreme Court

¢

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION

e

The respondents, State of Connecticut and the Con-

necticut Department of Transportation, pray that a writ of

certiorari, as requested by the petitioner, not be issued to

review the judgment of the Connecticut Supreme Court

rendered on February 28, 1991.

s

STATEMENT OF THE CASE

The sole issue before the Connecticut Appellate

Court, P. App. at App. 11,1 and the Connecticut Supreme

Court, P. App. at App. 12, was the granting by the Con- |

necticut Superior Court of the respondents’ motion to

dismiss an amended complaint on the grounds of sover-

eign immunity in state court proceedings, P. App. at App.

8-10.

The history of litigation over three decades between

the petitioner and the respondent, State of Connecticut,

its officers and employees, is so unusual that a brief

summary should aid this Court in its deliberation of the

pending Petition.

This is the most recent in a long series of litigation

between the parties and others going back to the year

1963 and the third time the parties have appeared before

the Supreme Court of the United States.? All of these trial

and appellate court actions concerned title to the same

three parcels of land situated in the Town of East Granby,

Connecticut at the end of Runway 6/24 at Bradley Inter- |

national Airport. |

On January 4, 1978, a final judgment by stipulation of

five re-opened and consolidated Superior Court cases

' The Appendix to the petition is designated “P. App. at

ee as

2 Augustus J. Simmons v. United States, et al., No. 83-1833,

cert. denied, October 1, 1984. App. A-1. Augustus ]. Simmons v. ].

William Burns, Commissioner, et al. No. 88-693, cert. denicd,

November 28, 1988. App. A-2.

eee

seemed to finally end the prior years of litigation. P. App.

at App. 13-17.

The petitioner represented by counsel and appearing

pro se, agreed to convey the subject land to the State for

$385,600. The petitioner subsequently refused to accept

the agreed upon compensation, and the State secured a

Supplemental Judgment dated June 2, 1978, which re-

affirmed the January 4, 1978 judgment and vested title to

the three parcels in the State and ordered the State to

deposit, with the Clerk of the Superior Court, $385,600 on

the petitioner’s behalf. P. App. at App. 18-31. In 1980, the

Supreme Court of Connecticut recognized the validity of

this stipulated final judgment in Simmons v. Wetherall, 180

Conn. 587, 430 A.2d 1296 (1980). P. App. at App. 5.

In compliance with the Supplemental Judgment, the

State deposited $385,600 with the clerk. The clerk con-

tinues to hold these funds on deposit with the Connecti-

cut National Bank for the benefit of the petitioner,

encumbrancers and lienors, consistent with the Supple-

mental Judgment. As of February 1991, the balance, with

accrued interest was approximately $518,600.%

In February 1984 the petitioner filed a “Claim for

Declaratory Judgment” in the Superior Court. The peti-

tioner sought a declaratory judgment on eleven different

issues regarding the same three parcels of land. He also

3 These funds were recently drawn down upon by Court

Order upon a Motion for Payment by a listed encumbrancer.

The petitioner participated in and did not object to the same,

and this process was consistent with the Judgment and Supple-

mental Judgment (Simmons v. Wetherall, No. 163875, June 11,

1990). App. A-3.

sought to void the judgment settling the prior litigation, |

which had been upheld by the Connecticut Supreme |

Court in 1980. The trial court denied the declaratory relief

sought, and this decision was upheld by the Connecticut

Appellate Court. (Simmons v. Wetherall, 3 Conn. App. 672,

491 A.2d 1908 (1985)).

Undaunted, the petitioner returned to the Superior

Court in January of 1986 with another civil action seeking

to relitigate the issues previously determined and

affirmed in Simmons v. Wetherall, 180 Conn. 587, 430 A.2d

1296 (1980). The State’s motion to dismiss was granted by

the Court. This decision was also affirmed by the Appel-

late Court (Simmons v. Burns, 9 Conn. App. 802 (1986)),

and a petition for certification to appeal was denied by

the Connecticut Supreme Court on November 25, 1986

(Simmons v. Burns, 201 Conn. 815 (1986)).

The petitioner, refusing to acknowledge the finality

of the prior judicial decisions, initiated yet another Supe-

rior Court action in August 1987. That action was, in

essence, an attack on the June 2, 1978 Supplemental Judg-

ment. The trial Court granted the State’s Motion to Dis- )

miss on the grounds of sovereign immunity.

Although this State action was dismissed, the federal

defendant, the Federal Aviation Administration, peti-

tioned for removal prior to the filing of the court’s deci-

sion and, therefore, the State was before the U.S. District

Court. The State filed a motion to dismiss as to the State

defendants. This motion was granted by the Court (Dor-

sey, J.) on November 10, 1987 (Ruling on Motion to Dis-

miss, Docket No. H-87-732, App. A-6). The petitioner

i ereeeereeninmeimiinanmnatiniee

moved to set aside this decision, and the Court (Cab-

ranes, J.) denied this motion and dismissed the case with

prejudice (Ruling on Pending Motions and Order March

15, 1988, Docket No. H-87-732. App. A-8).

It is of particular note that Judge Cabranes also

enjoined the petitioner from filing in the U.S. District

Court “ . . . any lawsuit in which he asserts the same

claims as‘were litigated, or as might have been litigated,

in the Connecticut Superior Court cases referred to as

Simmons v. Wetherall . . . 180 Conn. 587 (1980), and all the

cases consolidated therewith.” App. A-22.

The petitioner appealed to the United States Court of

Appeals for the Second Circuit, which Court affirmed the

U.S. District Court decision, including the injunction

against further federal litigation. Simmons v. Burns, et al.,

Order, Docket No. 88-6093, September 14, 1988. App.

A-27.

This Supreme Court of the United States denied the

petitioner’s petition for a writ of certiorari, Simmons v.

Burns, et al., No. 88-693, cert. denied, November 28, 1988.

App. A-2.

The petitioner has also sought direct relief in the

federal court system on numerous occasions. In 1981 he

initiated an action alleging that the taking of his land

violated his constitutional rights, and in 1983 he initiated

an action sounding in trespass and ejectment. These two

cases were consolidated and the United States District

Court (Cabranes, J.) dismissed the suits holding the

issues to be barred by the doctrine of res judicata and also

an impermissible collateral attack on a valid state court

judgment. App. A-30. Judge Cabranes’ order was

affirmed by the U.S. Court of Appeals for the Second

Circuit on December 20, 1983. App. A-34, and this

Supreme Court denied a petition for certiorari on October

1, 1984. Simmons v. United States, et al., No. 83-1833, cert.

denied, October 1, 1984. App. A-1.

Notwithstanding the above dispositions by both the

state and federal courts, the petitioner initiated yet

another federal court action in January of 1985. In an

attempt to avoid the res judicata effect of the 1978 State

court judgment, he alleged new violations of federal stat-

utes by the State and other defendants. The central issue

of this federal court litigation was the question of owner-

ship of the three parcels of land, the subject of this

Petition. On April 8, 1985, the District Court dismissed

the petitioner’s claims on the grounds of res judicata. The

U.S. Court of Appeals, for the Second Circuit, affirmed

this judgment on November 22, 1985 (App. A-37). In

addition to affirming the trial court, the Court of

Appeals’ decision states as follows:

We also consider this a frivolous appeal. Appel-

lant has litigated the same matters numerous

times before in both state and federal courts

over a period of many years. Because appellant

is a pro se litigant, we are not imposing sanc-

tions at this time. However, appellant is hereby

placed on notice that he risks imposition of

sanctions in the future should he seek once

again to relitigate these same matters (App.

A-38).

The litigation that is the subject of this Petition for a

Writ of Certiorari is an alleged quiet title action under

Connecticut law in state court. The Connecticut Supreme

Court denied a petition for certification (P. App., at App.

12) to appeal from the Appellate Court decision (P. App.,

at App. 11), which decision affirmed the trial court’s

dismissal of the action (P. App., at App. 8-10).

The issues raised in this litigation are, in essence, the

same that petitioner has repeatedly raised in the many

prior actions instituted by the petitioner and which have

been conclusively resolved against him. The petitioner

now asks this Supreme Court to consider them yet again.

Clearly, under Rule 10 of the Rules of the Supreme Court

of the United States, the considerations governing review

on the writ of certiorari establish beyond doubt that

petitioner’s cause does not warrant review.

4

REASONS FOR DENIAL OF THE PETITION

The respondents respectfully represent that there are

no special or important reasons to support the Petition.

The Connecticut Supreme Court denial of certification

has not decided a federal question in a way that conflicts

with the decision of another state court of last resort or of

a United States court of appeals, nor does the decision of

the Connecticut Supreme Court decide a federal question

in a way that conflicts with applicable decisions of this

Supreme Court.

ARGUMENT

THE COURTS BELOW DID NOT ERR IN GRANTING

AND AFFIRMING THE RESPONDENTS’ MOTION TO

DISMISS THE AMENDED COMPLAINT ON THE

GROUNDS OF SOVEREIGN IMMUNITY.

A. Motion To Dismiss

The sole issue before the appellate courts was to

determine if the trial court properly dismissed the

amended complaint on the grounds of sovereign immu-

nity, raised by the respondent’s motion to dismiss. “The

doctrine of sovereign immunity involves the jurisdiction

of the court over the subject matter of the action.” Horton

v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977)).

In Kinney v. State, 213 Conn. 54, 58, 566 A.2d 426

(1989), the Connecticut Supreme Court most recently

stated as follows:

“Once an issue of subject matter jurisdiction

is raised, the court must dispose of this legal

question as a threshold matter. (citing cases).

‘Whenever a court discovers that it has no juris-

diction, it is bound to dismiss the case... ’

(citing cases).”

This case did not proceed beyond the granting of the

State’s motion to dismiss the amended complaint. The

trial court decision on the “threshold matter” of subject

matter jurisdiction and sovereign immunity was disposi-

tive of the case, and there was no further judicial action

taken on the allegations or merits of the amended com-

plaint.

The petitioner raises issues that exceed the jurisdic-

tional issues raised by the State’s motion to dismiss and

seeks to introduce, before this United States Supreme

eal

.

Court, evidentiary matters or legal issues that go to the

merits of the allegations in the amended complaint. Such

evidentiary matters are properly within the jurisdiction

of the trial court, absent the disposition of this matter by

the trial court on jurisdictional issues in granting the

respondents’ motion to dismiss.

B. The Amended Complaint Is Barred By The Doctrine

Of Sovereign Immunity.

It is an established principle of law, recognized and

upheld by the Connecticut Supreme Court, that the State

cannot be sued without its consent. Horton v. Meskill, 172

Conn. 615, 623, 376 A.2d 359 (1977); Textron, Inc. v. Wood,

167 Conn. 334, 339, 355 A.2d 307 (1974).

In Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45

(1983), the Supreme Court reiterated the law as follows:

It is well established law that the state is

immune from suit unless it consents to be sued

by appropriate legislation waiving sovereign

immunity in certain prescribed cases. Baker v.

Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972);

Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d

596 (1963).

Two narrow exceptions to the doctrine of sovereign

immunity are also set out in a footnote on page 227 of

Duguay v. Hopkins, supra.4 The courts below determined

4 The State is subject to suit without consent in an action

for declaratory judgment where the defendant state officer is

allegedly proceeding under an unconstitutional statute or in

excess of his statutory authority; Horton v. Meskill, 172 Conn.

(Continued on following page)

10

that the amended complaint does not fall within the

purview or scope of these exceptions because the peti-

tioner is seeking coercive relief, damages, costs and the

setting aside of prior Superior Court judgments, as

affirmed by the Connecticut Supreme Court. The courts

below found that there is no proper nor sufficient allega-

tion or claim that the respondents have proceeded under

an unconstitutional statute or have acted in an uncon-

stitutional manner. In addition, the relief sought by the

petitioner would clearly be an undue interference with

governmental functions, as the same would have a direct

adverse impact on Bradley International Airport, the

Connecticut Department of Transportation and the State

of Connecticut.

The petitioner does claim that the instant case was

filed as a quiet title action under C.G.S. Sec. 47-31, which

is entitled “Action to settle title or claim interest in real or

personal property.” P. App. at App. 58-60.

Assuming, solely for this argument, that the

amended complaint is brought under Sec. 47-31 C.GS.,

this statute does not confer the trial court with jurisdic-

tion over the subject matter. In Struckman v. Burns, 205

Conn. 542, 558, 534 A.2d 888 (1987), the Connecticut

Supreme Court held:

(Continued from previous page)

615, 624, 376 A.2d 359 (1977); and in a suit for injunctive relief

when the action does not defeat the purpose of the doctrine of

sovereign immunity by undue interference with governmental

functions. Sentner v. Board of Trustees, 184 Conn. 339, 439 A.2d

1033 (1981).

11

It is a matter for the legislature, not this court, to

determine when our state’s sovereign immunity

should be waived. “The question whether the

principles of governmental immunity from suit

and liability are waived is a matter for legisla-

tive, not judicial, determination. Rogan v. Board

of Trustees, 178 Conn. 579, 582, 424 A.2d 274

(1979); Bergner v. State, 144 Conn. 282, 286-87,

130 A.2d 293 (1957).” Duguay v. Hopkins, 191

Conn. 222, 228, 464 A.2d 45 (1983). Sovereign

immunity may be waived only through a statute. Id.

Any statutory waiver of immunity must be nar-

rowly construed. Id. “The State’s sovereign right

not to be sued may be waived by the legislature,

provided clear intention to that effect is disclosed ‘by

the use of express terms or by force of a necessary

implication.’ Baker v. Ives, [162 Conn. 295, 298,

294 A.2d 290 (1972)]; Murphy v. Ives, [151 Conn.

259, 262-63, 196 A.2d 596 (1963)].” Id. (Emphasis

added).

Clearly, Sec. 47-31 C.G.S. does not waive sovereign

immunity, as the statute does not expressly nor by force

of necessary implication provide the required clear inten-

tion.

C. Constitutional Issues

It is recognized that under proper circumstances and

with the proper framing of a complaint, the doctrine of

sovereign immunity is not available as a defense for just

compensation arising under Article First, Section 11 of

the State Constitution. See Textron, Inc. v. Wood, 167 Conn.

334, 342, 355 A.2d 307 (1974).

The Connecticut Supreme Court has clarified the

essentials of a complaint if constitutional issues are to be

raised.

12

The complaint, to survive the defense of sover-

eign immunity, must allege sufficient facts to

support a finding of a taking of [property] in a

constitutional sense . . . ” Horak v. State, 171

Conn. 257, 261, 368 A.2d 155 (1976). Where “the

complaint is insufficient to establish an uncon-

stitutional taking . . . the doctrine of sovereign

immunity is a sufficient bar to the jurisdiction of

the court” Id., 262.

Upson v. State, 190 Conn. 622, 625, 461 A.2d 991 (1983).

In Upson, 626, the Supreme Court declared that the

mere allegation of wrongful taking, coupled with an allega-

tion of constitutional violation, are not sufficient to pre-

clude the court from an inquiry concerning a claimed

jurisdictional defect such as sovereign immunity. At page

626 of Upson, supra, the Court stated as follows:

Regardless of the phraseology in the nature of a

conclusion employed by the pleader, if the fact

of the record indicates that the court is without

jurisdiction, the complaint must be dismissed.

Horak v. State, supra, 260. A reading of the trial

court’s decision demonstrates conclusively that

the court analyzed the facts alleged in the com-

plaint and concluded that those facts did not

amount to an unconstitutional taking, and that,

therefore, the court lacked jurisdiction. We con-

cur in the conclusion of the trial court that the

record on its face discloses that the plaintiff was

fully compensated, that there was no uncon-

stitutional taking, and that the defendant's

motion to dismiss was correctly granted.

The courts below found the facts alleged in the

amended complaint do not amount to a proper allegation

of unconstitutional activity by the State defendants. The

appellate courts below determined that the amended

complaint in this matter, as in Upson, supra, fails to meet

13

the tests established by the Connecticut Supreme Court,

and thus, the trial court was correct in its analysis of the

facts alleged and in granting the State’s motion to dis-

miss.

D. Violation Of Federal Law

The petitioner argues that the existence of a federal

statutory scheme for relocation assistance and real prop-

erty acquisition (Uniform Relocation Assistance and Real

Property Acquisition Policies Act, 42 USC Sec. 4601, et

seq. “Uniform Act”) is all that is required to defeat the

respondents’ immunity from suit in the Connecticut

courts. The respondents argue that such an assertion is

without a foundation or basis in law.

The issue of the Uniform Act (42 USC Sec. 4601 et

seq.) was not an issue before the trial court, and it is not

cited in the amended complaint as a basis for any federal

claim or as a waiver of sovereign immunity.

Notwithstanding the argument offered by the peti-

tioner, the federal law itself provides an answer by

express provision as follows:

Sec. 4602 Effect upon property acquisition

(a) The provisions of Section 4651 of this title

create no rights or liabilities and shall not affect the

validity of any property acquisitions by purchase or

condemnation.

(b) Nothing in this chapter shall be construed

as creating in any condemnation proceedings

brought under the power of eminent domain,

any element of value or of damage not in exis-

tence immediately prior to January 2, 1971. (42

USC Sec. 4602) (Emphasis added).

14

42 USC Sec. 4651 provides for the adoption, for fed-

eral programs, of a uniform policy on real property acqui-

sition practices, and 42 USC Sec. 4655 requires that the

states also be guided by the same policy.

The courts have interpreted 42 USC Sec. 4602 as

follows:

The relocation and acquisition statutes were

intended to set forth guidelines rather than to

create rights of the kind giving rise to a legal

cause of action. Consumer Power Co. v. Costle, 468

F. Sup. 375 (D. Mich, 1979) aff’d, 615 F2d 1147

(6th Cir. 1980).

No rights are created in favor of property

owners enforceable in district court, and this

statutory scheme merely sets policy guidelines

to be followed in acquisition of real property.

Rubin v. Department of Housing and Urban Devel-

opment, 347 F. Supp. 555 (D. Pa. 1972).

The congressional intent behind 42 USC Sec.

4602(a) is to preclude judicial review of federal

and State agency actions under real property

acquisitions set forth in 42 USC Sec. 4651. Barn-

hart v. Brinegar, 362 F. Supp. 464 (W.D. Mo.

1973).

By its express terms, the Uniform Act does not waive

the State’s sovereign immunity from suit.

The petitioner misleads this Court in his reliance

upon Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666

(1976). Fitzpatrick was a Title VII, Civil Rights Act federal

court action, which Congress authorized to be brought

against a state defendant under Section 5 of the Four-

teenth Amendment. The issue was whether there was an

express waiver of a state’s sovereign immunity under the

Eleventh Amendment. Fitzpatrick was not an action

15

brought under the Uniform Relocation Assistance and

Real Property Acquisition Policies Act (42 USC Sec. 4601

et seq.), nor did it involve the defendant’s sovereign

immunity in state court actions.

Similarily, Parden v. Terminal R. Co., 377 U.S. 184, 84S. Ct.

1207 (1964), is not applicable to the matter before this Court,

as in Parden, there was a congressional intent to abrogate the

immunity conferred by the Eleventh Amendment. The Uni-

form Relocation Assistance and Real Property Acquisition

Policies Act does not contain a provision that expressly

creates a cause of action against the State. In fact, the con-

trary is set forth in 42 USC Sec. 4602.

The petitioner has misread the case of New Haven v.

East Haven, 35 Conn. Supp. 157, 402 A.2d 345 (1977), and

tortures its holding in its favor. The New Haven case is

founded on Connecticut law and has no relevance to the

federal law cited by the plaintiff. East Haven had

attempted to acquire, by condemnation, a portion of

Tweed-New Haven Airport, owned by the City of New

Haven, but located in East Haven. New Haven sought to

enjoin this action and was successful. There was no issue

of sovereign immunity nor waiver of immunity.

The case of City of Columbia v. Costle, 710 F.2d 1009

(1983), cited by the petitioner does not even discuss the

issue of a state’s sovereign immunity. The case did

involve the Uniform Act, but the issue was a contract

dispute over grant agreement language between the

municipality and the federal Environmental Protection

Agency.

16

CONCLUSION

Based upon the foregoing, it is clear that the peti-

tioner has not established any basis upon which this

Court, in its discretion, should grant review. Accordingly,

it is respectfully urged that the petition be denied.

Respectfully submitted,

Respondents

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

KENNETH N. TEDFORD

Assistant Attorney General

State of Connecticut

55 Elm Street

Hartford, CT 06106

(203) 566-2257

(Counsel of Record)

ARNOLD K. SHIMELMAN

Assistant Attorney General

State of Connecticut

251 Maxim Road

Hartford, CT 06114

(203) 566-2298

APPENDIX

A-i

INDEX TO APPENDIX

Page

Simmons v. United States, et al

Supreme Court of the United States Docket No.

83-1833 Cert. Denied October 1, 1984............. A-1

Simmons v. Burns, et al

Supreme Court of the United States Docket No.

88-693 Cert. Denied November 28, 1988........... A-2

Simmons v. Wetherall

Superior Court Docket No. 163875 Order - Motion

Ber PE I OE, DOD s a's nos de vina essences A-5

Simmons v. Burns, et al

U.S. District Court Docket No. H-87-732 Ruling on

Motion to Dismiss (Dorsey, J.) November 10,

AEE a he an eee rare Ce ore A-6

Simmons v. Burns, et al

U.S. District Court Docket No. H-87-832 Ruling on

Pending Motions and Order (Cabranes, J.)

EY MN 40s 6 604s 0s sh dake CARS CA S668 50% A-8

Simmons v. Burns, et al

U.S. Court of Appeals, Second Circuit Docket No.

88-6093 Order - September 14, 1988 ............ A-27

Simmons v. United States, et al

U.S. District Court Docket No. H-81-778 (JAC)

Docket No. H-83-225 (TEC) Order August 16,

SE ee ov carr aae ieek baeee enous A-30

A-ii

INDEX TO APPENDIX - Continued

Simmons v. Powers, etc.

U.S. Court of Appeals, Second Circuit Docket No.

83-6257 Decision Decetnber 20, 1983 ............ A-34

Simmons v. United States, et al

U.S. Court of Appeals, Second Circuit Docket No.

85-6087 Decision November 22, 1985............ A-37

Uniform Relocation Assistance and Real Property

Acquisition Policies Act 42 USC 4602........... A-39

A-1

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

October 1, 1984

Mr. Gerard J. Dowling

P.O. Box 120

Hartford, CT 06101

Re: Augustus J. Si. mons,

v. United States, et al.

No. 83-1833

Dear Mr. Dowling:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

Alexander L. Stevas, Clerk

A-2

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

November 28, 1988

Mr. Carl J. Schuman

Office of Atty. General

30 Trinity Street

Hartford, CT 06106

Re: Augustus J. Simmons,

v. J. William Burns, Commissioner, Connect-

icut Department of Transportation, et al.

No. 88-693

Dear Mr. Schuman:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

Joseph F. Spaniol, Jr., Clerk

/s/ Joseph F. Spaniol, Jr.

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No. 20 21 21-8

STATE OF CONNECTICUT

VS. AUGUSTUS J. SIM-

MONS

NO. 19 92 30-9

AUGUSTUS J. SIMMONS

VS.

SAMUEL KANNELL, ET

AL

NO. 14 09 65

STATE OF CONNECTICUT

VS.

ANASTASIA SIMMONS

AUGUSTUS J. SIMMONS

and

CHARLES SIMMONS

NO. 16 29 23

AUGUSTUS J. SIMMONS

VS.

FRANK C. PARIZEK, ET

AL

NO. 16 38 75

AUGUST J. SIMMONS

VS.

HORACE B. WETHERELL,

ET AL

SUPERIOR COURT

JUDICIAL DISTRICT

OF HARTFORD/NEW

BRITAIN AT

HARTFORD

MAY 29, 1990

A-4

MOTION FOR PAYMENT

JEROME DIAMOND; hereby moves the court to for [sic]

an order of payment of a mortgage from Augustus J.

Simmons to Jerome Diamond including all costs of fore-

closure.

In support of said Motion he represents:

1. Said mortgage was supposed to have been paid

in full by virtue of the decision of Judge John Brennan

and a release to have been filed on the land records;

2. Funds are being held in the name of Augustus J.

Simmons by the court for payment of liens on the prop-

erty;

3. The State of Connecticut has taken the position

before the court that Augustus J. Simmons can file a

Motion for Payment with the court;

4. In the absence of payment by the court, Augustus

J. Simmons will suffer a foreclosure of his land.

Wherefore, the court should grant the Motion and

order payment of the entire mortgage debt to Jerome

Diamond and all costs for foreclosure in Case No. CV 87

0327480 S.

ARGUMENT REQUESTED

TESTIMONY NOT REQUIRED

JEROME DIAMOND

By /s/ Richard B. Laschever

His Attorney

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ORDER

The foregoing Motion having been heard by the

Court, it is ORDERED: GRANTED. The sum of

$116,552.28 shall be paid to JEROME DIAMOND, c/o

ATTY. RICHARD LASCHEVER from said fund.

JUNE 11, 1990

BY THE COURT

/s/ illegible

A-6

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

a Civil No. H-87-732

J. WILLIAM BURNS, et al. : (PCD)

RULING ON MOTION TO DISMISS

Plaintiff commenced this action in state court on

August 10, 1987. The action was removed to this court on

the petition of the defendant Administrator of the Federal

Aviation Administration. Defendants Julian Tashjian, Sec-

retary of the State of Connecticut, and William Burns,

Commissioner of the Connecticut Department of Trans-

portation, move to dismiss the action as to them.

Plaintiff's complaint against the state defendants

essentially seeks to quiet title to certain parcels of land

and to eject the State of Connecticut from possession of

that land. The complaint is only the latest in a long line of

state and federal actions which plaintiff has filed relating

to the same subject. However, these issues were validly

and finally adjudicated in Simmons v. Wetherall, No.

163875 (Superior Court January 4, 1978, as modified June

2, 1978). The judgment entered in that case was affirmed

on appeal by the Connecticut Supreme Court. Simmons v.

Wetherall, 180 Conn. 587 (1980). Plaintiff is bound by that

judgment through the doctrine of res judicata. Moreover,

his complaint is impermissible either as an attempt to

. appeal to this court from the state court judgment, Rooker

v. Fidelity Trust Co., 261 U.S. 114 (1923), or to collaterally

attack that judgment.

A-7

For the foregoing reasons, the motion of the state

defendants to dismiss the complaint is granted.

SO ORDERED.

Dated at Hartford, Connecticut, this 10th day of

November, 1987.

/s/ Peter C. Dorsey

Peter C. Dorsey

United States District Judge

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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS :

v.

WILLIAM BURNS, et al.

CIVIL NO. H-87-732J AC)

RULING ON PENDING MOTIONS

AND ORDER

(Filed March 15, 1988)

This represents the latest, and this court hopes, the

final chapter in the epic tale of one pro se plaintiff’s

passion for engaging in vexatious litigation. Plaintiff

Augustus Simmons has struggled for over twenty-four

years to control several parcels of land situated in the

Town of East Granby, parcels which long ago became part

of Bradley Interational [sic] Airport. The instant action

seeks, inter alia, declaratory and injunctive relief and

damages against various state and federal defendants, all

of which claims rest upon plaintiff’s reassertion of his

lawful ownership of these parcels. Insofar as is relevant

to the pending motions, plaintiff also asserts various

complaints against two attorneys who represented him at

an earlier stage in this struggle. Presently pending is an

assortment of motions filed by plaintiff of varying

degrees of intelligbility [sic] and importance. Because the

determinations on the merits of Plaintiff’s Motion to Set

Aside Dismissal of State Defendants (filed Dec. 1, 1987)

(“Motion to Set Aside Dismissal”), the Federal Defen-

dant’s Motion to Dismiss (filed Nov. 30, 1987) and Defen-

dant Rogin and Hirtle’s Motion for Summary Judgment

(filed Jan. 6, 1988) are dispositive of the claims against

—_— =

A-9

these defendants, these are the only motions which the

court will discuss at any length.

For the reasons set forth below, the complaints

against the state and federal defendants, are DISMISSED

WITH PREJUDICE; summary judgment is GRANTED for

defendants Rogin and Hirtle.

I

BACKGROUND

It is difficult to summarize the tortuous path of this

litigation. We rehearse this history here because the repet-

itiveness of it is in large part the ground for our decision.

Fully fifteen years ago, our Court of Appeals described

the beginnings of the story as follows:

The battle began [in 1964] when the state

aeronautics commission moved under Conn.

Gen. Stat. § 15-79, which then governed taking

of land for airports, to condemn the Simmons

property [adjoining Bradley International Air-

port]. Pursuant to the statute, a petition for the

determination of compensation was brought by

the state in Hartford Superior Court; a judgment

was rendered finding the taking reasonable and

appointing a referee to assess damages.

Anastasia Simmons [plaintiff's mother]

appealed to the Connecticut Supreme Court,

which reversed, finding error in the trial court’s

exclusion of evidence offered to show that prop-

erty similarly situated had not been taken. State

v. Simmons, 153 Conn. 351, 216 A.2d 632 (1966).

Since this evidence was held to be relevant on

the issue of whether the state had acted arbi-

trarily in singling out the Simmons land, the

case was remanded for a new trial.

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While the first suit was pending, Mrs. Sim-

mons died, and Augustus entered the fray.

Before the second trial began, he raised as an

affirmative defense to the taking the fact that

the state authorities had not received the requi-

site statutory approval from the Town of East

Granby before proceeding with the condemna-

tion. The trial court agreed; the Supreme Court

affirmed. State v. Simmons, 155 Conn. 502, 234

A.2d 835 (1967). Round two for the Simmons

family.

Undaunted, the state tried again, this time

attempting to use Conn. Gen. Stat. § 48-12, the

general condemnation statute, which provided

for procedures different from section 15-79 in

cases where compensation could not be agreed

upon by the parties. The Simmons family pre-

vailed again, in Simmons v. State, 160 Conn. 492,

280 A.2d 351 (1971), when the Supreme Court

held that the state was required to use the sec-

tion .5-79 procedure.

At about the same time the abortive con-

demnation attempts were taking place, a related

dispute arose between the state and Simmons

over some land upon which runway lights had

been placed. Simmons claimed that the land was

his; the state said it was the state’s. An eject-

ment action followed. In Simmons v. Parizek, 158

Conn. 304, 259 A.2d 642 (1969), the Supreme

Court held that since the complaint did not

allege that the state officials had acted uncon-

stitutionaily or in a manner unauthorized by

some statute, the suit was barred by the doctrine

of sovereign immunity. Appellant took the hint,

and on October 14, 1969 resurrected the eject-

ment action, this time alleging that the taking of

the land and the erection of runway lights was

done both unconstitutionally and without statu-

tory authorization. That suit, Docket No. 162923,

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Hartford Superior Court, [was] still pending [as

of January, 1973].

Shortly before the Connecticut Superior

Court decision in Simmons v. Parizek, supra, a

Special Act was passed by the Connecticut Gen-

eral Assembly, allowing Augustus Simmons to

sue the state for damages over “loss of use of

land,” arising out of the bumbling condemna-

tion proceedings. On January 5, 1970, Simmons

brought such a suit, Docket No. 163875, Hart-

ford Superior Court; [as of January, 1973,] the

action [was] still pending.

Thus, if there ever was a litigant who knew

that his claims would be fairly heard in the state

courts, Augustus Simmons was he. Neverthe-

less, perhaps for a change of setting, he insti-

tuted [a] section 1983 action on December 22,

1971 [in the United States District Court for the

District of Connecticut, Simmons v. Wetherall,

Civil No. 14806] alleging that his property was

taken without due compensation, and seeking

damages.

Simmons v. Wetherall, 472 F.2d 509, 510-11 (2d Cir.), cert.

denied, 412 U.S. 940 (1973); see also Simmons v. McKone, 158

Conn. 71 (1969) (lawsuit concerning plaintiff’s succession

to the land).

Judge Blumenfeld dismissed the section 1983 action

after finding that, at most, Simmons had alleged a tor-

tious interference with his property by state officials.

Upon review of Judge Blumenfeld’s decision, our Court

of Appeals determined that Simmons’ claim also involved

a boundary dispute; accordingly, it affirmed in part and

remanded in part so that the district court could stay the

action pending resolution of one of two state court pro-

ceedings. See Simmons v. Wetherall, 472 F.2d at 511-12.

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In December, 1977, the plaintiff retained the firm of

Rogin, Nassau, Caplan, Lassman & Hirtle to represent

him in his then-pending cases. Attorneys Edward Rogin

and Robert Hirtle, two defendants in the instant action,

were partners in that firm. Negotiations ensued, and

Docket No. 163875 was consolidated with Docket No.

162923 and three other related actions that Simmons had

pending in the Connecticut Superior Court. On December

13, 1977, state referee Louis Shapiro, with the consent of

the parties, entered a final judgment by stipulation in the

consolidated actions, a judgment which promised to end

years of litigation. Pursuant to the judgment by stipula-

tion, the plaintiff, still represented by Rogin, Nassau,

Caplan, Lassman & Hirtle, agreed, inter alia, to sell the

disputed parcels of land to the state for $518,000.

The resolution of the matter was short-lived. Only

days after the settlement, Simmons voiced his refusal to

accept the terms of the judgment, terms which he had

previously stated were satisfactory. Specifically, Simmons

wanted to retain one piece of “Parcel A,” the whole of

which he had agreed to sell on December 13, 1977. Again,

the plaintiff’s attorneys negotiated. On January 4, 1978,

the state agreed to allow the plaintiff to retain the

requested portion of Parcel A. In return, the plaintiff

agreed to sell the remaining disputed land for $385,600.

He further agreed that the ‘[j)udgment entered in this

matter be a full and final settlement between the parties

of any and all claims and disputes concerning said par-

cels of land and any and all other claims contained in the

above consolidated cases.” Memorandum in Support of

Motion to Dismiss (filed Oct. 7, 1987) (“State Defendant’s

Memorandum”), Exhibit A at 3. Pursuant to the new

A-13

agreement and judgment, a closing was scheduled for

January 24, 1978, at which time the exchange of title was

to be consummated. See Affidavit of Robert Hirtle attached

to Motion for Summary Judgment by Defendants Edward

Rogin and Robert Hirtle (filed Jan. 6, 1988) at 2-3.

Before the closing, however, Simmons apparently

encumbered the property by leasing a portion of it, not-

withstanding that he knew title was to vest in the state

pursuant to the stipulated judgment. Simmons took this

action without the prior knowledge of his attorneys, and

eventually, he refused to cooperate with his attorneys. On

April 20, 1978, the firm sent the plaintiff a notice of its

withdrawl [sic] as his counsel. See id. at 3.

On June 1, 1978, the plaintiff, acting pro se, filed a

motion to reopen the judgment entered January 4, 1978.

In rejecting the plaintiff's request, the state referee wrote:

The plaintiff argued that Attorney Robert L.

Hirtle, Jr., of the firm Rogin, Nassau, Caplan,

Lassman and Hirtle, failed to disclose to him

that he once served as an assistant attorney

general for the State. His claim is that this cre-

ated a conflict of interests and thereby he was

not fully and adequately represented at the

prior proceedings. It is true that Hirtle served as

an assistant attorney general between 1965 and

1971. Thereafter he joined the Rogin law firm.

Hirtle stated that before the Rogin firm entered

the seitlement talks he discussed with the plain-

tiff his former affiliation. The plaintiff was

informed by his other counsel that Hirtle’s inter-

vention would be beneficial to the plaintiff. As it

turned out, Attorneys Salzman and Silverman

who represented the plaintiff in the trial before

me of case #162923, Simmons v. Parizek, et al.

A-14

which went to judgment, were unable to negoti-

ate a post judgment settlement with the state.

The Rogin firm entered an appearance at a later

date and the participation of attorneys Edward

Rogin and Hirtle in discussions with the attor-

ney general’s office brought results. At a date

prior to January 4, 1978, being on December 13,

1977, these five cases were settled by agreement

with plaintiff and all attorneys. At this point, the

plaintiff lauded his counsel and stated for the

record his satisfaction with the settlement in the

amount of five hundred and eighteen thousand

dollars. A judgment was entered for the amount

with full and clear consent of the plaintiff. A

few days later, the plaintiff suddenly notified

the court that he was unhappy with the settle-

ment. As a result, with consent of counsel, the

judgment was vacated ....

Plaintiff and his counsel, following further

discussion with the Attorney General’s office,

came before the undersigned at a hearing on

January 4, 1978. As a result of further discus-

sions between the parties, an agreement was

reached whereby the plaintiff was to retain the

portion of land io which he desired to retain

title. . . . Following this action judgment was

entered on January 4, 1978....

I have carefully reviewed the plaintiff’s

claims under his motion. I find that in entering

the judgment of January 4, 1978, the plaintiff

was fully, adequately and skillfully represented

by counsel at these prior proceedings. I find no

conflict of interests as may be related to Attor-

ney Hirtle. He rendered the highest degree of

service and devotion to his client’s (Plaintiff's)

interest. As a result, the settlement reached was,

in my judgment, the optimum. The plaintiff

stated for the record, on January 4, 1978, how

pleased he was with the result.

A-15

I must conclude that I find no merit in

plaintiff’s motion. He has played fast and loose

with the court, his counsel and the state. His

conduct is devious indeed.

State Defendants’ Memorandum, Exhibit E.

Accordingly, the state secured a supplemental judg-

ment dated June 2, 1978, see id., Exhibit B, under which all

encumbrances on the property were to be removed, and

title to the disputed parcels of land automatically was

vested in the state. The state referee further ordered the

state to deposit with the Clerk of the Superior Court

$385,600 on behalf of plaintiff. Plaintiff appealed the stip-

ulated judgment, and the Supreme Court upheld it and

the findings of the trial referee. See Simmons v. Wetherall,

180 Conn. 587 (1980) (per curiam). As of June 29, 1987,

pursuant to this judgment, there was on deposit in

United States treasury bills the sum of $497,314.24. This

sum represents principal and interest and apparently is

available to plaintiff upon appropriate motion to the

Clerk of the Superior Court. See State Defendants’ Mem-

orandum, Exhibits C and D.

Ignoring Principles of res judicata and collateral

estoppel, plaintiff then commenced a new series of state

and federal court actions in which he raised claims which

were, without exception, reiterations of the claims ulti-

mately decided by the state Supreme Court in Simmons v.

Wetherall.

For example, in 1981, the plaintiff initiated an action

in this court in which he alleged that the taking of his

land had violated his constitutional rights. See Simmons v.

United States Government, Civil No. H-81-778 (JAC). In

A-16

1983, he initiated another action which sounded in tres-

pass and ejectment. See Simmons v. United States of Amer-

ica, Civil No. H-83-225 (TEC). These two cases were

consolidated in this court and dismissed as barred by res

judicata in an order also noting that, by bringing these

cases in federal court, plaintiff was impermissibly mount-

ing collateral attacks on a valid state court judgment. See

Order (dated Aug. 16, 1983) (Cabranes, J.). Our court of

appeals affirmed that decision on appeal. See Simmons v.

Powers, Simmons v. United States, Docket No. 83-6257 (2d

Cir. Dec. 20, 1983) (unpublished order); see State Defen-

dants’ Memorandum, Exhibits F and G. Thereafter, the

United States Supreme Court denied plaintiff’s petition

for a writ of certioriari [sic]. See State Defendants’ Mem-

orandum, Exhibit H.

Notwithstanding the rejection of his claims by every

state and federal trial and apellate [sic] court having any

arguable basis for assuming jurisdiction, this zealous liti-

gant initiated yet another federal lawsuit in January, 1985.

The plaintiff’s strategy to avoid the res judicata effect of

the 1978 state supplemental judgment was to allege new

violations of federal statutes and to bring in an assort-

ment of new defendants to join the old. Again, the court

dismissed the complaint on res judicata grounds. See

Simmons v. Dole, Civil No. H-85-45 (D.Conn. Apr. 8, 1985)

(Blumenfeld, J.). Again, plaintiff appealed and the Court

of Appeals affirmed, stating:

We agree with the April 8, 1985, order of the

district court dismissing appellant’s claims on

the ground of res judicata. We also consider this

a frivolous appeal. Appellant has litigated the

same matters numerous times before in both

state and federal courts over a period of many

A-17

years. Because appellant is a pro se litigant, we

are not imposing sanctions at this time. How-

ever, appellant is hereby placed on notice that

he risks imposition of sanctions in the future

should be seek once again to relitigate these

same matters.

Simmons v. United States, Docket No. 85-6087 (2d Cir. Nov.

22, 1985) (unpublished order).

Undeterred, plaintiff mounted another attack in Con-

necticut Superior Court just a few months later. In the

new suit, filed in January 1986, he attempted to recover

damages from the state. The state’s motion to dismiss was

granted. The Connecticut Appellate Court affirmed the

dismissal, see Simmons v. Burns, 9 Conn.App. 802 (1986)

(per curiam), and the Connecticut Supreme Court denied

certification to appeal, see Simmons v. Burns, 201 Conn.

815 (1986).

I]

THE INSTANT ACTION

Plaintiff commenced the instant action in Connecticut

Superior Court on August 10, 1987. The action was

removed on the petition of one of the d iendants, the

Administrator of the Federal Aviation Administration.

The only even arguable new element in this suit is a claim

that plaintiff has suffered from legal malpractice at the

hands of his former attorneys, Edward Rogin and Robert

Hirtle. Cf. Opinion of State Referee, quoted above in this

Ruling at 5-6.

Prior to transferring the case to the docket of this

court, Judge Dorsey granted a motion to dismiss the

iii sill

A-18

action as to state defendants Julia Tashjian, Secretary of

the State of Connecticut, and J. William Burns, the Com-

missioner of the Connecticut Department of Transporta-

tion on res judicata grounds. See Simmons v. Burns, Civil

No. H-87-732, Ruling on Motion to Dismiss (D.Conn.

Nov. 19, 1987). Plaintiff has filed what can be construed

as an objection to the granting of the state defendants’

motion to dismiss, which is one of the pending motions to

which this ruling is addressed.

Thereafter, defendants Rogin and Hirtle filed a

motion for summary judgment and the federal defendant

filed a motion to dismiss. These pending motions present

the court with the opportunity to write the final chapter

of this lengthy and tiresome story.

A. The Motions to Dismiss

The doctrine of res judicata bars relitigation of the

same cause of action between the same parties or their

successor in interest. See Mohegan Tribe v. Connecticut, 528

F.Supp. 1359, 1370 n. 2 (D.Conn. 1982). It is an absolute

bar not only as to every matter which was offered ‘to

sustain a claim, but also as to any other matter which

might have been offered for that purpose. See State v.

Aillon, 189 Conn. 416, 423, cert. denied, 464 U.S. 837 (1983).

“{A] federal court must give to a state court judgment the

same preclusive effect as would be given that judgment

under the law of the State in which the judgment [sic]

was rendered.” Migra v. Warren City School District Board

of Education, 465 U.S. 75, 81 (1984). Moreover, a litigant

“may not engage in extensive proceedings throughout the

state court system, and then, after every point has been

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decided against him by the state courts and the Supreme

Court has denied certiorari, make a fresh start in federal

court.” Friarton Estates Corp. v. City of New York, 681 F.2d

150, 159 (2d Cir. 1982). Thus, issues which were actually

litigated, or which could have be: « litigated, in a state

court proceeding are entitled in a federal suit to the same

preclusive effect accorded them by the state. Migra, 465

U.S. at 83; Allen v. McCurry, 449 U.S. 90, 94 (1980); accord

Kaufman v. Somers Board of Education, 368 F.Supp. 28, 33

(D.Conn. 1973).

In Connecticut, a valid judgment entered by agree-

ment or consent operates to end the controversy to the

same extent as would a valid judgment rendered after

adjudication on the merits. See Connecticut Pharmaceutical

Association v. Milano, 191 Conn. 555, 558 (1983); Gagne v.

Norton, 189 Conn. 29, 34 (1982). The Connecticut Supreme

Court in Simmons v. Wetherall, 180 Conn. 587 (1980),

upheld the actions of the state referee whereby title of the

disputed land vested in the State of Connecticut. In the

instant action, plaintiff asserts claims which rest upon his

purported legal ownership of the same land.

Accordingly, Plaintiff's Motion to Set Aside Dismissal

of State Defendants (filed Dec. 1, 1987) is DENIED, and

the case against them is dismissed with prejudice.

Because the claims against the federal defendant rest

upon the claim that the State of Connecticut is in wrong-

ful possession of plaintiff’s land, they are likewise barred.

The Federal Defendant’s Motion to Dismiss (filed Nov.

30, 1987) is therefore GRANTED, and the case against

him is dismissed with prejudice.

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B. Defendants Rogin’s and Hirtle’s Motion for Summary

Judgment

Liberally construed, the complaint against Attorneys

Rogin and Hirtle can be viewed as alleging fraud, breach

of contract or legal malpractice. The adequacy and loyalty

of their representation of plaintiff was explicitly

addressed and decided against plaintiff by the state ref-

eree; the referee’s denial of piaintiff’s motion to reopen

the judgment based claims of inadequate representation

were upheld by the Connecticut Supreme Court in Sim-

mons v. Wetherall, 180 Conn. at 589. Because the record

does not demonstrate clearly that Rogin and Hirtle have

been parties to litigation on the merits of any of these

claims, there is some doubt whether they would be enti-

tled in Connecticut courts to assert the prior state court

judgment as a defense. See State v. Ellis, 197 Conn. 436,

462-69 (1985); Doe v. Maher, 40 Conn.Supp. 394, 405, 515

A.2d 134 (New Haven, 1986). It could be argued, consis-

tently with the rationales of these decisions, that defen-

dants should be so entitled because this plaintiff certainly

has had a full and fair opportunity to litigate the claims.

See DiMauro v. Pavia, 492 F.Supp. 1051, 1059 n. 7

(D.Conn.), aff'd mem., 614 F.2d 1286 (2d Cir. 1979).

In any event, the record reveals another clear ground

for granting summary judgment for Rogin and Hirtle. It

is undisputed that these two attorneys ceased represent-

ing plaintiff almost nine years ago. Moreover, since plain-

tiff explicitly questioned the adequacy of their

representation before the state referee in 1978, he cannot

credibly argue that, until recently, he was unaware of the

harm which he is alleged to have suffered at their hands.

A-21

Any suit based upon their representation is certainiy

barred by whatever statute of limitations might arguably

be applicable. See Conn. Gen. Stat. § 52-576 (six-year

limitation for actions based on simple or impled [sic]

contract) and § 52-577 (three-year limitation for actions in

tort, held applicable to legal malpractice in Shuster v.

Buckley, 5 Conn.App. 473, 477 (1985)).

C. Prospective Relief

Finally, the court would be remiss if it did not put an

end to plaintiff’s vendetta and relieve its victims from the

burden of vexatious relitigation of these issues. See In re

Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984), cert.

denied, 106 S.Ct. 807 (1986); see also Procup v. Strickland,

792 F.2d 1069, 1073 (11th Cir. 1986). The District Court has

the authority to issue “all writs necessary or appropriate

in and of their respective jurisdictions and agreeable to

the usages and principles of law.” 28 U.S.C. § 1651(a). It

may be appropriate in some circumstances to enter an

injunction to prevent the continuation of harassments

which come from frivolous and repetitious lawsuits. See,

e.g., Matter of Hartford Textile Corp., 681 F.2d 895, 897 (2d

Cir. 1982), cert. denied, 459 U.S. 1206 (1983). Courts are not

to be used as a vehicle for harassment by a litigant who

asserts the same baseless claim repeatedly in slightly

altered guises. See Kane v. City of New York, 468 F.Supp.

586, 590 (S.D.N.Y.), aff'd mem., 614 F.2d 1288 (2d Cir.

1979). Although an order enjoining a particular plaintiff

from commencing future actions is an unusual step, the

courts have not hesitated to enter such orders where a

litigant continues to abuse the legal process, and defen-

dants, by filing meritless claims. See, e.g., In re Martin-

itil

A-22

Trigona, 763 F.2d 140 (2d Cir. 1985), cert. denied, 106 S.Ct.

807 (1986).

Apart from such extraordinary and pathological

examples as Anthony R. Martin-Trigona, it would be

difficult to find a litigant more pertinacious that [sic]

Augustus J. Simmons. This plaintiff has brought approx-

imately one dozen suits arising out of the state’s initially

inept attempt to condemn his land over twenty years ago.

At this point in his “legal career,” he could not credibly

argue that he believes, in good faith, that his claims have

merit. See Fed. R. Civ. P. 11. He has harassed a variety of

defendants and has squandered the resources of both

state and federal courts, all due to his persistent refusal to

accept as final the 1978 supplemental judgment of the

Hartford Superior Court, and the 1980 decision of the

Connecticut Supreme Court upholding that judgment.

Our Court of Appeals has warned him unequivocally that

he would risk the imposition of sanctions if he persisted

in filing the same claim. It is difficult to believe, however,

that any sanction, short of an injunction, would either be

effective or appropriate to protect potential defendants

and preserve judicial resources for other litigants who

await their own day in court.

Accordingly, the court hereby ENJOINS plaintiff,

Augustus J. Simmons, from filing in the United States

District Court for the District of Connecticut or any other

federal court any lawsuit in which he asserts the same

claims as were litigated, or as might have been litigated,

in the Connecticut Superior Court cases referred to as

Simmons v. Weatherall, Docket No. 163875 (Superior Court

at Hartford, Jan. 4, 1978, as modified June 2, 1978), aff'd,

A-23

180 Conn. 587 (1980), and all the cases consolidated there-

with.

1. This injunction includes any filing in which the

harm is alleged to have arisen from or relate to the

plaintiff’s ownership, at one time, of the parcels of land

in the Town of East Granby as described in the original

and supplemental judgments in Simmons v. Wetherall,

Docket No. 163875, supra, and all cases consolidated

therewith.

2. Plaintiff is also enjoined from filing any state or

federal claims in any federal court against any of the

defendants named in the complaint in this lawsuit of

such lawsuit related to his alleged ownership of the par-

cels of land described in the original and supplemental

judgments in Simmons v. Wetherall, Docket No. 163875,

supra, and all cases consolidated therewith.

3. This injunction applies only to lawsuits of the

sort described above filed in the federal courts, including

the United States District Court for the District of Con-

necticut. Nothing in this order shall be construed as

restricting plaintiff’s ability to file a suit in any state

court. Nor shall it be construed as restricting plaintiff’s

ability to file suit in any federal court, so long as the

lawsuit does not relate to plaintiff’s alleged ownership of

the parcels of land described in the original and supple-

mental judgments in Simmons v. Wetherall, Docket No.

163875, supra, and all the cases consolidated therewith.

4. - Nothing in this order shall be construed to deny

plaintiff access to the United States Court of Appeals for

the Second Circuit, or to the Supreme Court of the United

States, in any matter.

A-24

5. Nothing in this order shall be construed to pro-

hibit Augustus J. Simmons from filing complaints under

28 U.S.C. § 372(c), provided, however, that nothing in this

order, and nothing in this subsection in particular, shall

be construed as intimating any view on the constitu-

tionality of 28 U.S.C. § 372. See, e.g., Rule § 0.24, Com-

plaints with Respect to Conduct of Judges, Rules of the

United States Court of Appeals for the Second Circuit

(Nov. 1983) (identical disclaimer by the Judicial Council

of the United States Court of Appeals for the Second

Circuit).

6. All future complaints submitted by plaintiff to

this court shall first be reviewed for compliance with this

order. Any complaint that does not comply with this

order shall not be docketed and will be returned to plain-

tiff.

In entering this injunction, the court reserves the

right to order such additional relief as may become

appropriate or necessary to accomplish its objective of

protecting individuals and the system of justice from

further abuse by this litigant.

Ill

CONCLUSION

For the reasons stated above:

(1) Plaintiff’s Motion to Set Aside Dis-

missal of State Defendants is DENIED, and the

case against the state defendants in DISMISSED

with prejudice.

(2) The Federal Defendant’s Motion to Dis-

miss is GRANTED, and the case against it is

DISMISSED with prejudice.

A-25

(3) The Motion for Summary Judgment of

‘Defendants Rogin and Hirtle is GRANTED.

There being no just cause for delay, judgment

shall enter forthwith for defendants Rogin and

Hirtle. See Fed. R. Civ. P. 54(b).

(4) The other pending motions, identified

in the note at the margin and having been

resolved by decisions on the above motions, are

denied as moot.!

(5) Plaintiff is enjoined, as specified above,

from filing any lawsuit in federal court in which

he asserts the same claims as were litigated, or

might have been litigated, in the Connecticut

Superior Court cases referred to as Simmons v.

Wetherall, Docket No. 163875 (Superior Court at

Hartford, Jan. 4, 1978, as modified June 2, 1978),

aff'd, 180 Conn. 587 (1980), and all the cases

consolidated therewith.

It is so ordered.

Dated at New Haven, Connecticut, this 15th day of

March, 1988.

Jose A. Cabranes

United States District Judge

A-26

NOTE

1 The following motions filed by plaintiff are hereby

denied as moot: Motion for Payment of Rent (filed Sept. 29,

1987); Motion for Order of Referral and Enforcement of 49

U.S.C. § 2216 (filed Nov. 12, 1987); Petition for Hearing on

Determination of Due Process (Civil Process) Under 14th

Amendment Upon all Necessary Parties (filed Nov. 19, 1987);

Motion for Payment of Real Property Taxes by Federal Aviation

Administration under 49 CFR § 25.106(c) (filed Nov. 25, 1987);

Motion to Set Aside State Court Judgment Rendered Without

the “Necessary Parties” (filed Dec. 30, 1987); Motion to Set

Aside State Court Judgment Rendered Without Just Compensa-

tion (filed Dec. 30, 1987); Motion to Set Aside State Court

Judgment Rendered Without Jurisdiction and in Violation of

Uniform Relocation Assistance and Real Property Acquisition

Policies Act of 1970 (filed Dec. 30, 1987); Motion to Set Aside

State Court Judgment Rendered Without Due Process (filed

Dec. 30, 1987).

A-27

CONN

H-87-732

CRABRANES

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 14th day of

September one thousand nine hundred and eighty-eight.

Present:

HONORABLE J. EDWARD LUMBARD,

HONORABLE J. DANIEL MAHONEY,

Circuit Judges

HONORABLE CON. G. CHOLAKIS,

District Judge.”

AUGUSTUS J. SIMMONS, ORDER

88-6093

re (Filed

ms SEP 14 1988)

J]. WILLIAM BURNS, et al., ISSUED AS

Defendants-Appellees. MANDATE:

October 5,

1988

Plaintiff-Appellant,

* Hon. Con. G. Cholakis, District Judge, United States District

Court for the Northern District of New York, sitting by desig-

nation.

A-28

Appeal from the United States District Court for the

District of Connecticut.

This cause came to be heard on the transcript of

record from the United States District Court for the Dis-

trict of Connecticut, and was argued by appellant pro se

and by counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed that the order of said

district court be and it hereby is AFFIRMED, and appel-

lant is assessed double court costs.

1. We affirm for the reasons stated in the ruling of

the district court. We also consider this a frivolous

appeal. This is appellant’s third appearance before this

court in the past five years, and on each occasion res

judicata barred or bars his reassertion of the same claims

which were either fully litigated or should have been

litigated in prior state and federal proceedings. In his last

appearance before this court, Simmons v. United States of

America, et al., Docket No. 85-6087 (2d Cir. Nov. 22, 1985)

(unpublished order), appellant Simmons was placed on

notice that he risked imposition of sanctions should he

seek to appeal the same matters again.

2. It is accordingly appropriate to assess double

court costs against appellant pursuant to Fed. R. App. P.

38.

3. We specifically call to appellant’s attention that

we affirm the order of the district court in all respects,

including its injunction against further federal litigation

Diet sn

A-29

concerning these claims, and that any violation of that

injunction may be punished as a contempt of court.

/s/ }) Edward Lumbard

J. Edward Lumbard,

/s/ J) Daniel Mahoney

J. Daniel Mahoney,

Circuit Judges

/s/ Con. G Cholakis

Con. G. Cholakis,

District Judge

N.B. This summary order will not

be published in the Federal Re-

porter and should not be cited or

otherwise relied upon in unrelated

cases before this or any other

court.

A-30

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS, ) Civil Action

aT ) No. H-81-778

Plaintiff

) JUNE 21, 1983

V. )

UNITED STATES GOVERNMENT, ON TTONe

THE FEDERAL AVIATION

ADMINISTRATION; J. LYNN

- HELMS, ADMINISTRATOR, FAA

STATE OF CONNECTICUT;

STATE DEPARTMENT OF

TRANSPORTATION; J. WILLIAM

BURNS, COMMISSIONER, STATE

DEPARTMENT OF

TRANSPORTATION,

Defendants

Nee eee ee ee ee”

MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) the

State Defendants hereby move the Court to dismiss these

actions for lack of subject matter jurisdiction and failure

to state a claim on which relief can be granted.

The State respectfully requests seven days in which

to file its memorandum in support of this action.

STATE DEFENDANTS

Joseph I. Lieberman

Attorney General

By /s/ Gerard J Dowling

Gerard J. Dowling

Assistant Attorney

General

A-31

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

Plaintiff

Civil Action

No. H-83-225 TEC

= JUNE 21, 1983

UNITED STATES OF AMERICA;

ELIZABETH DOLE, SECRETARY

UNITED STATES DEPARTMENT

OF TRANSPORTATION; FEDERAL

)

)

)

)

)

CONSOLIDATED

~ ACTIONS

)

AVIATION ADMINISTRATION; J.

)

)

)

)

)

)

)

LYNN HELMS, ADMINISTRATOR;

STATE OF CONNECTICUT; J.

WILLIAMS BURNS,

COMMISSIONER, CONNECTICUT

DEPARTMENT OF

TRANSPORTATION,

Defendants

MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) the

State Defendants hereby move the Couirt to dismiss these

actions for lack of subject matter jurisdiction and failure

to state a claim on which relief can be granted.

The State respectfully requests seven days in which

to file its memorandum in support of this action.

STATE DEFENDANTS

Joseph I. Lieberman

Attorney General

By /s/ Gerard J. Dowling

Gerard J. Dowling

Assistant Attorney

General

A-32

CERTIFICATION

On this 21st day of June 1983, a copy of the foregoing

was mailed to Donna L. Fatsi, and Augustus J. Simmons.

/s/ Gerard J. Dowling

Gerald J. Dowling

Assistant Attorney General

90 Brainard Road

Hartford, CT 06114

Tel. (203) 566-7070

ORDER

Based upon the full record of this case, including the

State Defendants’ Memorandum in Support of Its [sic]

Motion to Dismiss the Complaints (filed June 28, 1983),

the exhibits appended thereto, and the arguments of

counsel in open court on August 15, 1983, the court

concludes that these cases effectively constitute appeals

from state court judgments and litigation of them before

this forum is barred by the doctrine of Rooker v. Fidelity

Trust Co., 261 U.S. 114 (1923), that collateral attack in this

court on the judgment of the Connecticut Superior Court

is barred by 28 U.S.C. § 1738, and that, in any event, the

prior adjudication of these claims in Simmons v. Wetherall,

180 Conn. 587 (1980) bars their reassertion, because of the

doctrine of res judicata. For all of the foregoing reasons,

the state defendants’ motion to dismiss the complaints in

A-33

Civ. Nos. H-81-778 and H-83-225 is GRANTED. It is so

ordered.

/s/ Jose A Cabranes

Jose A. Cabranes,

U.S. District Judge

August 16, 1983, Hartford, Conn.

A-34

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 20th day of

December, one thousand nine hundred and eighty-three.

Present:

HONORABLE N.B. Since this statement

WILFRED FEINBERG does not constitute a formal

Chief Judge opinion of this court and is

HONORABLE not uniformly available to all

parties, it shall not be

HENRY J. PRISNDLY reported, cited or otherwise

HONORABLE used in unrelated cases

JAMES L. OAKES before this or any other

Circuit Judges. court.

X

AUGUSTUS J. SIMMONS, 83-6257

Plaintiff-Appellant,

(Filed

-v.- DEC 20 1983)

ARTHUR B. POWERS, etc.,

Defendant-Appellee.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

-V.-

UNITED STATES OF AMERICA,

et al.,

Defendant-Appellee.

X

A-35

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 Dis-

trict of Connecticut, and was argued by appellant pro se

and by counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed as follows:

1. This appeal arises out of a dispute over title to

and use of land adjacent to Bradley International Airport.

It concerns two actions, filed by appellant in the United

States District Court for the District of Connecticut, and

directed against various state and federal defendants. The

complaint in the first case, Civ. No. H-81-778, was filed in

October 1981, and subsequently amended. On February 7,

1983, Judge Cabranes granted the federal defendants’

motion to dismiss. Simmons appealed, and this court, by

order dated June 9, 1983, dismissed the appeal for lack of

jurisdiction because the dismissal of the claim against the

federal defendants did not constitute a final judgment of

the district court. We stated that, to pursue the appeal,

Simmons would have to seek the entry of a final judg-

ment as to the federal defendants, or await the deter-

mination of the claims against the state defendants.

2. On March 22, 1983, appellant filed the complaint

in the second case, Civ. No. H-83-225. On May 23, 1983,

Judge Cabranes granted a motion by the State of Con-

necticut to consolidate both cases. On August 16, 1983,

Judge Cabranes dismissed the complaints in the consoli-

dated actions. Simmons now appeals from that dismissal.

We agree with Judge Cabranes that the doctrine of res

A-36

judicata bars the reassertion of these claims, already liti-

gated in state courts. Simmons v. Wetherall, 430 A.2d

1295 (Conn. 1980).

3. The judgment of the district court is affirmed.

/s/ Wilfred Feinberg

Wilfred Feinberg, Chief Judge

/s/ Henry J Friendly

Henry J. Friendly,

/s/ James L Oakes

James L. Oakes,

Circuit Judges.

A-37

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 22nd day of

November, one thousand nine hundred and eighty-five.

Present:

HONORABLE WILFRED FEINBERG,

Chief Judge

HONORABLE WALTER R. MANSFIELD,

HONORABLE JAMES L. OAKES,

Circuit Judges.

x

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant, 85-6087

-against- (Filed

UNITED STATES OF AMERICA, NOV 22 1985)

et al.,

Defendants-Appellees.

X

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 Dis-

trict of Connecticut, and was argued by appellant pro se

and by counsel for appellees. .

A-38

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed that the judgment of said

District Court be and it hereby is AFFIRMED.

We agree with the April 8, 1985, order of the district

court dismissing appellant’s claims on the ground of res

judicata. We also consider this a frivolous appeal. Appel-

lant has litigated the same matters numerous times before

in both state and federal courts over a period of many

years. Because appellant is a pro se litigant, we are not

imposing sanctions at this time. However, appellant is

hereby placed on notice that he risks imposition of sanc-

tions in the future should he seek once again to relitigate

these same matters.

/s/ Wilfred Feinberg

Wilfred Feinberg, Chief Judge

/s/ Walter R Mansfield

Walter R. Mansfield,

/s/ James L Oakes

James L. Oakes,

Circuit Judges

Since this statement does. not con-

stitute a formal opinion of this

court and is not uniformly avail-

able to all parties, it shall not be

reported, cited or otherwise used

in unrelated cases before this or

any other court.

a)

hatch ithe SERIAL INGE «9 Nia eRe han

—

A-39

§ 4602. Effect upon property acquisition

(a) The provisions of section 4651 of this title create

no rights or liabilities and shall not affect the validity of

any property acquisitions by purchase of condemnation.

(b) Nothing in this chapter shall be construed as

creating in any condemnation proceedings brought under

the power of eminent domain, any element of value or of

damage not in existence immediately prior to January 2,

1971.

(Pub.L. 91-646, Title I, § 102, Jan. 2, 1971, 84 Stat. 1895.)