Reply Brief — Burton v. Mottolese

No. 03-1408

Supreme Court of the United States

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ITANCY BURTON,

Petitioner,

Vo

HONORABLE A. WILLIAM MOTTOLESE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

REPLY TO BRIEF IN OPPOSITION

CONRAD OST SEIFERT, ESQ.

Counsel of Record

SEIFERT & HOGAN

Halls Road P.O. Box 576

Old Lyme, Connecticut 06371

(860) 434-2097

Attorneys for Petitioner

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES............0000.00000- i

ENTRODUCTION 0.i0.56.60i0000sceedescscccccsece: l

REPLY TO RESPONDENT'S ASSERTION OF

“PETITIONER'S MISSTATEMENTS”...... 2

REPLY TO RESPONDENT'S “REASONS

FOR DENYING WRIT” ...........c000000000. 3

I. THE PETITION DOES NOT

CHALLENGE THE TRIAL COURT'S

INHERENT AUTHORITY TO

: INITIATE A DISCIPLINARY

; PROCEEDING .......2.ccccccc:cccceeess. 4

: II. THE PETITIONER DID NOT

: RECEIVE CONSTITUTIONALLY

SUFFICIENT WOTICE ... 20. .5.<005.2:. 5

: III. THE PR CEEDINGS WERE

‘ FUNDA» iENTALLY UNFAIR.......... 8

: IV. TO THE EXTENT THAT THE

: CONNECTICUT SUPREME COURT

: RELIED UPON PRIOR AND

a SUBSEQUENT DISCIPLINE, ITS

a DECISION VIOLATED

2 PETITIONER'S DUE PROCESS

: IB ois lisdalbsaciseoncdentouscvees 9

t ONCE TONNE 5 koe iicctncciecncns 10

ii

TABLE OF AUTHORITIES

Cases: PAGE

Anjone v. Town of Redding, Superior Court,

Judicial District of Danbury (1986)......... 1

Burton v. Day, Berry & Howard, 304 CV 515

CROWS)... «.0s:s:00:0nissleae see een ee 10

Burton v. Statewide Grievance Committee,

60 Conn. App. 698, 760 A.2d 1027 (2000).. 2

Burton v. Statewide Grievance Committee,

1998 Conn. Super. LEXIS 2729 (1998) ..... 2

Burton v. Winans, Grievance Complaint

91 G25 .4..ccccissince ee eee |

Emslie v. State Bar of California, 520 P.2d 991

CED PR) 5 oncciccouvcaiens ane eee eee 4

Fish Unlimited v. Northeast Utilities,

1999 Conn. Super. LEXIS 1180 (1999) ..... 1

Galindo v. State, 535 S.W.2d 923 (1976)......... 4

Grievance Committee v. Goldfarb,

9 Conn. App. 464, 519 A.2d 624 (1987) .... 5

In re Northeast Utilities, Docket No. |

5O-§23-LA-S (OE) os sndicncces casas eee l

In re Peck, 88 Conn. 447, 91 A. 274 (1914) ..... 4

ER 9O Beri, GO- BGs 6 on cisscsdssiaceueaehares 10

in ve Beri, Go-1 DFO ..<5<ccccevissncncecemanaaesees 10

In re Ruffalo, 390 U.S. 554, 88 S.Ct. 1222,

20 1. BG.28 117 CPI bviccsccewsesasevincvires 6,7,8

iii

In re Thalheim, 853 F.2d 383 (Sth Cir. 1988)....

Keeney v. Fairfield Resources, 41 Conn. App.,

Fae Pe Pike 188 (1996)... oe ccc cececees

Monsky v. Moraghan, 947 F.Supp. 53 (1996)....

State v. Mourning, 247 Conn. 634,

Ee

State v. Ontra, 178 Conn. 480, 423 A.2d 134

eg a nun cuky cs dads bnededeasvive

Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d

I tesa tech kes secssKiniesekvceracess

PAGE

INTRODUCTION

The Petitioner is a public-interest attorney known in

Connecticut for representing unpopular causes suc-

cessfully.’ She has never been the subject of a grievance

complaint by a client. The Petitioner “maintains a good

reputation as an attorney in the community.”

The Petitioner has mounted challenges to questionable

judicial conduct, including that of the Respondent, Hon.

A William Mottolese.’ In this petition, she challenges

' See, e.g., State v. Mourning, 247 Conn. 634, 723 A.2d 316

(1999) (“.. . it is necessary that the defendant’s incarceration be ter-

minated immediately . . .”)(Petitioner representing defendant); Fish

Unlimited v. Northeast Utilities,1999 Conn. Super. LEXIS 1180

(1999)(temporary restraining order granted, blocking the restart of the

Millstone Unit 2 nuclear reactor in Waterford, Connecticut, on envi-

ronmental grounds)(Petitioner representing plaintiff); Jn re Northeast

Utilities, Docket No. 50-423-LA-3 (exposure by Intervenor during

proceedings of the U.S. Atomic Safety and Licensing Board of the

loss of two highly radioactive spent fuel rods from the Millstone Unit

1 spent fuel pool, leading to a penalty of $288,000 assessed against

Northeast Utilities by the U.S. Nuclear Regulatory Commission on

June 25, 2002)(Petitioner representing Intervenor); Anjone v. Town of

Redding, Superior Court (1986) (vacating town health department

orders to an elderly schoolteacher to disconnect her septic system to

make way for a corporate development) (Petitioner representing

schoolteacher); Keeney v. Fairfield Resources, 41 Conn. App. 120,

674 A.2d 1349 (1996)(affirming the right of citizen associations to

intervene in environmental enforcement actions under state law)(Peti-

tioner representing neighborhood association).

2 Petition for Writ of Certiorari, App. at 65a.

3

See, e.g., Nancy Burton v. Christopher G. Winans, 91-0-925

(Petitioner filed a grievance complaint in 1989 alleging that Hon. A.

William Mottolese, the Respondent herein, engaged in an impermis-

sible ex parte communication with opposing counsel in an environ-

mental lawsuit. An independent grievance investigation concluded the

ex parte communication occurred. In the proceedings below, however,

the Respondent “stoutly denied” such ex parte session.); Monsky v.

Judge Mottolese’s order, issued in an environmental law-

suit, disbarring her from the practice of law in Connecticut.

The Respondent’s Brief in Opposition gives weight to

the notion that these proceedings were initiated and

prosecuted as a pretext to shut down the petitioner’s

public interest work and to retaliate against her judicial

whistleblowing. Venturing outside the record of these

proceedings, the Respondent states in the second para-

graph of his Brief in Opposition:

Ms. Burton has a long history of attacking the

integrity and impartiality of the Connecticut judi-

ciary ... [Emphasis added. ]

The quoted passage does not appear anywhere in the

decision by the Connecticut Supreme Court.

REPLY TO RESPONDENT’S ASSERTION

OF “PETITIONER’S MISSTATEMENTS”

The Respondent asserts that some facts in her State-

ment of the Case are not supported by the record. (Brief

in Opposition at 7) Petitioner concedes that when she

stated in her Statement of the Case that the Connecticut

Moraghan, 947 F.Supp. 53 (1996), affirmed on other grounds, 1997

U.S. App. LEXIS 36158 (suit brought by Petitioner to enjoin state

judge, Hon. Howard J. Moraghan, from taking his dog to court, where

the judge permitted the unleashed golden retriever to bother women

inside the courthouse and where appeals to judicial administrative

personnel had proved futile); Nancy Burton v. Statewide Grievance

Committee, 1998 Conn. Super. LEXIS 2729 (1998) (reprimand issued

to Petitioner for petitioning the Connecticut Supreme Court pursuant

to Connecticut General Statutes § 51-51) to investigate the conduct of

three state court judges in a civil action regarding the makeup of a jury

pool which included a party’s spouse, the court clerk’s sister-in-law,

the mother of the opposing party’s campaign finance secretary, and the

nurse assisting the mother of an opposing attorney, among other issues.

Reversed and remanded, 60 Conn. App. 698, 760 A.2d 1027 (2000).

' Supreme Court affirmed disbarment by a “judge with a

longstanding grudge,” this was a part of her argument

and was not a factual findisg by the Connecticut

Supreme Court. All statements asserted by the Petitioner

are supported by the record in testimony by the Peti-

tioner, plaintiff Joseph Sullivan, the affidavit of plaintiff

Irving Nelson, as well as other evidence.*

REPLY TO RESPONDENT’S “REASONS

FOR DENYING THE WRIT”

The Respondent urges this Court to deny the petition

for writ of certiorari because the Connecticut Supreme

Court decision “does not decide an important federal

question in a way that conflicts with a decision of this

Court, the United States Court of Appeals, or another

state court of last resort.” This statement is incorrect.

The Connecticut Supreme Court decision divests the

petitioner of her Constitutionally protected liberty and

property interests as an attorney—and her good name—

without cause and without due process. Therefore, the

writ presents compelling cause for review by this Court.

See, e.g., Zauderer v. Office of Disciplinary Counsel, 471

U.S. 626, 670, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985)

(“ “Where a person’s good name, reputation, honor, or

intégrity is at stake because of what the government is

doing to him,’ due process guarantees must be scrupu-

lously observed. . .. When an attorney’s constitutional

rights have been violated, we have not hesitated in the

past to reverse disciplinary sanctions that were even less

severe than a public reprimand.”) (Brennan, J., dissenting)

4 To the extent that the Respondent objects to the inclusion of

facts in her Statement of the Case which appear in the record but

which were not relied upon in the Connecticut Supreme Court opin-

ion, the Petitioner did not intend to suggest otherwise and regrets any

confusion which may have resulted.

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ee a OR SE

4

I. THE PETITION DOES NOT CHALLENGE

THE TRIAL COURT’S INHERENT

AUTHORITY TO JINITIATE A

DISCIPLINARY PROCEEDING

The Respondent miscasts the petition as one chal-

lenging the trial court’s inherent power to initiate attor-

ney disciplinary proceedings. (Brief in Opposition at 12)

To the contrary, the petition expressly acknowledges

the trial court’s inherent power to initiate such proceed-

ings; however, it argues that such proceedings must com-

ply with due process and that due process in this case

requires compliance with procedural protections embod-

ied in the state rules of practice. (Petition at 18-21). See,

e.g., In re Thalheim, 853 F.2d 383, 388 (Sth Cir. 1988);

Galindo v. State, 535 S.W.2d 923, 926 (1976); Emslie v.

State Bar of California, 520 P.2d 991, 999 (1974).

The Respondent further mischaracterizes the petition

as identifying Connecticut Practice Book § 2-47 as “the

sole method under Connecticut law for disbarring attor-

neys.” (Brief in Opposition at 12-13)(Emphasis added.)

Section 2-47 is not a “method” for disbarring attorneys:

it is a rule of procedure setting forth minimal due pro-

cess requirements which must be accorded an attorney

subject to disbarment, regardless of whether the pro-

ceedings are initiated pursuant to the court’s inherent

power.°

Without even citing § 2-47, which was first enacted in

1978, the Connecticut Supreme Court relied upon the

case of In re Peck, 88 Conn. 447, 91 A. 274 (1914), to

support the notion that a trial court may dispense with

5 The Respondent does not dispute petitioner’s assertion that

all attorney disbarments in Connecticut since the Connecticut

Supreme Court reversed the summary disbarment in State v. Ontra,

178 Conn. 480, 423 A.2d 134 (1979), have occurred pursuant to § 2-47

—with the Petitioner’s case representing the sole exception.

PS Te Te ne

court rules of procedure when disbarring an attorney.

However, In re Peck does not stand for such a broad

proposition; instead, it stands for the narrow proposition

that a trial court may on its own initiative and without

complaint “set on foot inquiries as to professional con-

duct and fitness”—a point readily conceded by petitioner.

The Connecticut Supreme Court further relied on the

case of Grievance Committee v. Goldfarb, 9 Conn. App.

464, 519 A.2d 624, cert. denied, 203 Conn. 802, 522

A.2d 292 (1987). However, Goldfarb did not involve

attorney discipline pursuant to the court’s inherent power.

Goldfarb involved disciplinary proceedings initiated by

the Statewide Grievance Committee pursuant to its rules.

While the respondent casts this issue as one involving

“pure state law” (Brief in Opposition at 17), such char-

acterization is incorrect. The Petitioner does not ask this

Court to interpret state law. The Petitioner seeks review

of the decision of the Connecticut Supreme Court

depriving the Petitioner of her federal due process rights

to which she is entitled under state law.

II. THE PETITIONER DID NOT RECEIVE

CONSTITUTIONALLY SUFFICIENT NOTICE

The Respondent did not inform the Petitioner that he

was considering disbarring her until July 17, 2001, eight

months after convening the sua sponte inquiry, and six

months following the conclusion of the hearing. The

notice of charges was set forth in the Respondent’s

Memorandum of Decision concluding that the Petitioner

was guilty of violating various rules of professional con-

duct.° Thus, the Petitioner was not served with a written

® Memorandum of Decision, July 17, 2001, at 33. (“A hearing

will be held on August 14, 2001 in Courtroom 3C to determine the

proper sanction or sanctions to be imposed upon Attorney Nancy Bur-

ton for the violations of the Rules of Professional Conduct herein-

6

notice of the Respondent’s charges against her until after

the conclusion of the hearing and after she had been pro-

nounced guilty.

In this case, the “absence of fair notice as to the reach

of the [disciplinary] procedure and the precise nature of

the charges”—as well as the potential consequences of

the inquiry—deprived the Petitioner of procedural due

process. Jn re Ruffalo, 390 U.S. 554, 552, 88 S.Ct. 1222,

20 L.Ed.2d 117 (1968).

Because disbarment proceedings are quasi-criminal in

nature, “[t]he charge must be known before the pro-

ceedings commence.” Id. at 551. As in Ruffalo, the Peti-

tioner “had no notice her conduct regarding [the

plaintiffs] would be considered a disbarment offense

until after the conclusion of testimony.” Id. at 550.

oe 6

Such procedural violation of due process would

never pass muster in any normal civil or criminal liti-

gation,’” Id., quoting dissenting Circuit Court Judge

Edwards. Id. at 550-51.

Thus, Respondent argues incorrectly that the Peti-

tioner was not entitled to notice of the charges against

her until January 4, 2001—the date the Respondent

scheduled for Petitioner’s testimony.’ Jn re Ruffalo

above found by the Court. The range of sanctions available to the

court include but are not limited to those set forth in P.B. § 2-37, 2-44,

G.S. § 51-84, suspension, disbarment and counsel fees.”

7 The Respondent asserts that “Ms. Burton claims that Judge

Mottolese ‘refused to disclose to her the nature and scope of the pro-

ceedings’ until December 21, 2000” and that such assertion is “mis-

leading and patently incorrect.” Brief in Opposition at 9. First, the

Respondent misquotes the Petitioner. The Petitioner asserted that the

Respondent “initially” refused to disclose the nature and scope of the

proceedings, referring to the Respondent’s comments on December 12,

2000. Second, it is undisputed that the respondent did not inform the

Petitioner that he was considering disbarring her until his Memoran-

dum of Law dated July 17, 2001 was issued. See footnote 5 supra.

Bites Zhe. Leap Sak

sSiste wesalpes

7

requires notice prior to the hearing, which commenced

on December 12, 2000.

Moreover, Ruffalo requires notice of all the charges

being considering by a disciplinary authority. As of Jan-

uary 4, 2001, the Respondent had notified the Petitioner

in open court that the Respondent was considering three

issues: plaintiffs’ authorization, filing pleadings and

“divided loyalty.” In its July 21, 2001 decision, the

Respondent expanded its charges to include many other

issues. App. 40a-58a.

As the Respondent catalogues in his Brief in Opposi-

tion, at 3-7, the nature and scope of the proceedings con-

tinuously evolved.

The Respondent initiated disciplinary proceedings

against Petitioner sua sponte after the opposing party

filed a motion seeking “financial and other sanctions” on

October 23, 2000 alleging that the Petitioner was not

authorized to represent the plaintiffs in the litigation.

Initially, the Respondent issued an order notifying the

parties that it would consider “all motions for sanctions”

at a hearing on October 31, 2000.

That hearing was rescheduled to November 27, 2000.

The Respondent stated it would “if necessary, adjudicate

the status of each plaintiff to ascertain if they [sic] are

properly plaintiffs on December 12, 2000.”

On November 27, 2000, the Respondent stated in open

court that it would address two issues: whether Peti-

tioner “continued to participate in the litigation by filing

pleadings and taking action without the consent of her

clients” and Petitioner’s assertion of gender bias.

On December 12, 2000, the Respondent stated in open

court that he had called the hearing to “get on the record

8

what the facts are, or were with regard to [the plaintiffs’ ]

status as plaintiffs in the case.”

It was not until December 21, 2000—following the

testimony of seven plaintiffs on December 12, 2000—

that the Respondent stated that it was conducting a hear-

ing on its own motion—xnot the motion of opposing party

attorney—on Petitioner’s “alleged unauthorized repre-

sentation of numerous plaintiffs . . . [and] alleged unau-

thorized continuation of activity in this lawsuit on behalf

of those plaintiffs ... and what sanctions should ensue

from those, if—should the Court find... that you have

engaged in this type of conduct.”

This ever-evolving process violates the principles of

due process articulated by this Court in Jn re Ruffalo.

Had the petitioner been served with proper notice of all

the charges against her ab initio, as required by due pro-

cess, the results would most likely be very different.

III. THE PROCEEDINGS WERE

FUNDAMENTALLY UNFAIR

Before commencing its “adjudicatory” hearing on Jan-

uary 4, 2001 to determine whether the Petitioner was

authorized to represent the 22 plaintiffs, the Respondent

had already concluded that she was not. The Respondent

reached his conclusion on December 12, 2000, after lis-

tening to seven plaintiffs, that she was not.®

On December 12, 2000, the Respondent stated that all

should be removed as plaintiffs from the case, and he

. The Respondent made numerous comments during the pro-

cedings in an apparent attempt to influence the plaintiffs’ testimony

in a manner prejudicial to the Petitioner, such as his comment to

plaintiff Cynthia Ambrosey:

“Your name appears. . . attached to the summons and com-

plaint, you probably have never—I don’t know, have you seen

it before?” (December 12, 2000, page 79)

9

instructed them how to file pro se appearances and with-

drawals. All present thereupon followed his instruction

and unilaterally withdrew from the litigation.

The trial court’s determination on December 12, 2000

that the Petitioner was not authorized to institute liti-

gation on the plaintiffs’ behalf preceded the testimony of

three plaintiffs on December 21 and 22, 2000 to the con-

trary’ as well as the Petitioner’s own testimony to the

contrary commencing on January 4, 2004. In addition,

the record includes the letter of plaintiff Irving A. Nel-

son dated August 14, 2001 stating that he and his wife

had fully authorized the Petitioner to represent them in

the litigation and that she had their full trust.

In prejudging the issues, the Respondent deprived the

Petitioner of the fair hearing required to satisfy basic

due process. The Connecticut Supreme Court conclusion

to the contrary was clearly contrary to the record.

IV. TO THE EXTENT THAT THE CONNECTICUT

SUPREME COURT RELIED UPON PRIOR

AND SUBSEQUENT DISCIPLINE, ITS

DECISION VIOLATED PETITIONER’S DUE

PROCESS RIGHTS

The Connecticut Supreme Court decision recites prior

and subsequent discipline as supporting the Petitioner's

disbarment as a “reasonable” sanction. App. at 65a. The

court’s reliance on such discipline deprived the Peti-

tioner of due process.

The Petitioner was disbarred in part based on prior

discipline which was subject to further appeal.!° On

Joseph Sullivan, Lenore Sullivan and Catherine Finch.

10

Indeed, as the Petitioner has noted to the Connecticut

Supreme Court in a post-decision motion, in one of the instances cited

for “prior discipline,” the case of Bartel v. Renard, the Statewide

10

August 14, 2001, the Petitioner sought to reopen the pro-

ceedings to develop the record on prior discipline. The

respondent rejected the request, as follows:

THE COURT: Well, the fact that it’s pending on

appeal doesn’t matter. ... Ms. Burton, you’ll have

adequate opportunity to explain each of them to the

respective tribunals before which they are pending,

not this Court.

Transcript at pages 79, 82.

The Connecticut Supreme Court compounded the error

when it permitted the Respondent to submit the contempt

order of U.S. District Judge Alan H. Nevas, issued eight

months after the trial court decision which is the subject

of the present writ, as a further basis for Petitioner’s dis-

barment."!

CONCLUSION

For the reasons stated, the petitioner requests that the

petition be granted.

Grievance Committee initiated a complaint against the Petitioner

based on a newspaper account of the case and dismissed the complaint

after a hearing based on lack of evidence of attorney misconduct.

| - Judge Nevas’ contempt order, in which he imposed a

$171,546 punitive sanction upon the Petitioner for instituting two law-

suits under the Connecticut Environmental Protection Act over which

he lacked federal jurisdiction and for attending public hearings of and

addressing letters to Haddam, Connecticut, public agencies and offi-

cials, was the subject of a petition for writ of certiorari to the U.S.

Supreme Court, /n re Egri, 03-865, dismissed on February 23, 2004,

and is discussed in a petition for writ of certiorari now pending

before the U.S. Supreme Court, Jn re Egri, 03-1558, as filed on May

17, 2004. The Petitioner has further challenged Judge Nevas’ con-

tempt order in a pending declaratory judgment action entitled Nancy

Burton v. Day, Berry & Howard et al., 304 CV 515 (RCN)(U.S. Dis-

trict Court, District of Connecticut).

Respectfully submitted,

CONRAD OST SEIFERT, ESQ.

Counsel of Record

SEIFERT & HOGAN

Halls Road P.O. Box 576

Old Lyme, Connecticut 06371

860-434-2097

Attorney for Petitioner