Opposition Brief — Nadeau v. Budlong

FILED

No. 92-1797 i JUN 9 1993

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

o--

JAMES H. NADEAU,

Petitioner,

C. MICHAEL BUDLONG AND

STATE OF CONNECTICUT,

Respondents.

ee.

On Petition For A Writ Of Certiorari

To The Supreme Court Of the State Of Connecticut

.

BRIEF OF THE RESPONDENT, C. MICHAEL

BUDLONG, IN OPPOSITION

.

ANDREW E. BeEcKER, Esq.

BUDLONG, BECKER & MURRETT

89 Oak Street

Hartford, CT 06106

Tel. (203) 727-9900

Juris No. 405677

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 5 L.Ed.

OO te es a ene

Antel v. Poli, 100 Conn. 64, 123 A.2d 272 (1923)

Connecticut Light & Power v. Kluczinsky, 171

Conn. 516, 370 A.2d 13506 (1976) ............:.

Gallagher v. Pontiac School District, 807 F.2d 75

aS | ee ere ee errr eee

Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100

a | eee re eee

Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82

L.Ed.2d 393 (1984)

Joyce v. Mavromatis, 783 F.2d 56 (6th Cir. 1986)....

Pisel v. Stamford Hospital, 180 Conn. 314, 430

re rere he

United States v. Russell, 411 U.S. 423, 93 S. Ct.

lism BRS R Be. ge | Re eee

Young v. United States ex. rel. Vuitton et Fils S.A.,

481 U.S. 787, 107 S. Ct. 2124, 95 L.Ed.2d 740

(1987)

CONSTITUTIONAL PROVISIONS

Constitution of the United States, Fourteenth

Pr re errr oy

TREATISES

Black’s Law Dictionary (5th Ed.)................

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STATEMENT OF THE CASE

Respondent brought an action against Petitioner in

the Connecticut Superior Court for libel. After a three day

trial, the jury found for the Respondent and awarded him

$10,000 as damages.

On the first day of trial, the Petitioner appeared with

a nonlawyer assistant and requested that she be permit-

ted to assist him. The court, after Stating that the Peti-

tioner did not hear well, allowed Petitioner the privilege

of an assistant at counsel table contingent upon her

adherence to strict guidelines: she was to take notes and,

if necessary, repeat what was said. There was no motion

before the court; there was no evidence presented nor

testimony elicited in support of Petitioner’s claim that he

had difficulty hearing. The court was merely responding

to a request made by Petitioner which it granted with

specified restrictions.

During the first day of trial, the court admonished

the assistant not to advise Petitioner to “put that in

question form,” (Appendix, 4a), with the further caveat

that she would be removed from counsel table if the court

perceived it occurring again. Despite this admonition, the

assistant continued to advise Petitioner. On the afternoon

of the second day of trial, the court ordered her to remove

herself stating she was not a lawyer and she could not

advise a litigant in this court. The court denied Peti-

tioner’s request for an alternate as the court found he had

abused the privilege of being allowed one.

During the remaining afternoon and next morning

when the trial was completed, both the trial judge and

Respondent’s counsel continued to inquire of Petitioner

as to whether he could hear. (Appendix, 8a.) At no time

did the Petitioner indicate he could not hear the proceed-

ings.

The Petitioner appealed to the Connecticut Appellate

Court claiming, inter alia, that he was denied a fair trial

because of the removal of his assistant.

The Appellate court properly found that the trial

court, using its broad discretion in the conduct of pro-

ceedings before it, did not abuse this discretion and

upheld the trial court decision. The Petitioner then peti-

tioned the Supreme Court of the State of Connecticut for

certiorari which was denied on February 24, 1993.

«

ARGUMENT

1. Petitioner’s Statement of the Case Contains

Misstatements of Fact.

There was never a finding by the trial court that

Petitioner was hard of hearing. The trial judge merely

acknowledged that the Petitioner did not hear well.

(Appendix, la - 2a) There was no finding that Petitioner

required a hearing assistant. The trial judge inquired as to

the purpose of the assistant and Petitioner confirmed that

it was to assist in hearing and taking notes of the pro-

ceedings. (Appendix, 2a.)

The trial judge, in conformity with the courts long-

standing practice of granting leeway to pro se litigants,

allowed an assistant to sit with the Petitioner during the

trial subject to her compliance with strict guidelines. Peti-

tioner could talk to her in a whisper if he couldn’t read

part of her notes or if he wanted to ask a question about

what was said, but no one, other than the pro se litigant,

who is not a lawyer or a witness could talk in the court-

room. (Appendix, 3a.)

The Petitioner claim in his brief that he was without

his assistant for the second half of the trial. In fact, the

assistant was not removed until the afternoon of the

second day of the three-day trial, where evidence con-

cluded after two hours of testimony on the third day.

Subsequent to the removal of his assistant, the record

does not reflect that the Petitioner complained to the

court about not hearing the proceedings. On inquiry from

the court and counsel as to his ability to hear the proceed-

ings, the Petitioner consistently answered in the affirma-

tive. (Appendix, 8a.)

2. The Connecticut Court, Acting Within Its

Authority and Exercising Its Discretion Prohib-

ited The Unauthorized Practice Of Law In Its

Presence Without Offending Due Process Or

Depriving Petitioner Of His Constitutionally

Protected Rights.

The essence of due process is fundamental fairness.

“Due process is the element that, when absent, produces

a reaction given to that which is shocking to the universal

sense of justice.” United States v. Russell, 411 U.S. 423, 432,

93 S. Ct. 1637, 36 L.Ed.2d 366 (1973).

It is unlikely on this record that the Court could

reach the constitutional issues. Other than a general refer-

ence to several sections of the United States Constitution,

the Petitioner makes no specific reference as to how the

Connecticut courts have violated his rights.

Additionally, the Petitioner fails to clearly set forth

any substantial federal question he claims was erro-

neously decided by the Connecticut Court, nor does he

cite any applicable decisions of this Court with which any

such federal question conflicts.

The Petitioner has failed to establish himself as a

member of a protected class. Even if he had, in order to

establish a deprivation of an interest protected by the due

process clause, he must show that he was excluded from

protections afforded that class. Gallagher v. Pontiac School

District, 807 F.2d 75 (6th Cir., 1986) This the Petitioner has

failed to do.

His due process claim must fail under Hudson v.

Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)

because there is no allegation or showing that the state’s

judicial process does not provide fair procedures which

would remedy the wrong alleged, if proved.

In order to make out an equal protection claim for

denial of access to courts, the Petitioner must allege dis-

crimination based on poverty, race or some other reason-

able classification. See, e.g. Griffin v. Illinois, 351 U.S. 12,

76 S.Ct. 585, 100 L.Ed. 891 (1956) Petitioner’s equal pro-

tection argument must fail because the Petitioner has not

established that he belongs to the group he alleged the

wrong to be directed against. Joyce v. Mavromatis, 783 F.2d

56 (6th Cir. 1986)

While at first blush the issue the Petitioner presents

appears of national importance, on closer examination, it

is evident that the Petitioner clouds the real issue:

Whether a state court should be able to exercise its discre-

tion to prevent the unlicensed practice of law under the

guise of hearing assistance.

Furthermore, the facts of this case are peculiarly its

own, not likely to recur, and too narrow to warrant

review by this Court on certiorari. Most courts would not

give a pro se litigant the degree of latitude the Connecti-

cut trial court did. The Petitioner was unrepresented

because he tried to retain counsel by advertising (HON-

EST LAWYER WANTED TO SUE C. MICHAEL BUD-

LONG AND IS FOR UNETHICAL LAW PRACTICE) and

was unsuccessful. Petition for Writ of Certiorari, 3A

The Petition fails to acknowledge that the conditions

of the privilege granted him by the court during the trial

contained an obligation with which he did not comply.

The assistant was not to engage in the unauthorized

practice of law. Implicit in the grant of this privilege was

the understanding that violation of the conditions would

be an abuse of this privilege and result in its revocation.

The Appellate Court properly found that the trial court

has wide discretion over matters which occur during the

trial. This broad discretion will not be interfered with

unless it has been clearly abused to the manifest injury of

the litigant. Pisel v. Stamford Hospital, 180 Conn. 314, 322,

430 A.2d 1 (1980). Petition For Writ of Certiorari, 7A

The courts’ authority can be and has been said to

mean the “[r]ight to exercise powers; to implement and

enforce laws; to exact obedience; to command; to

judge ...” Black’s Law Dictionary (5th Ed.) The courts,

by their very creation, are vested with the power to

impose silence, respect, and decorum, in their presence,

and submission to their lawful mandates. Anderson v.

Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821);

Young v. United States ex. rel. Vuitton et Fils S.A., 481 U.S.

787, 107 S. Ct. 2124, 95 L.Ed.2d 740 (1987).

Finally, a reversal of the Connecticut Supreme Court

decision would simply lead to more appellate review by

putting into question longstanding state court principles

regarding the broad discretion of the court in the conduct

of its trials. Connecticut Light & Power v. Kluczinsky, 171

Conn. 516, 521, 370 A.2d 1306 (1976); Antel v. Poli, 100

Conn. 64, 69, 123 A.2d 272 (1923)

¢

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari to review the decision of the Supreme Court of

the State of Connecticut in this matter should be denied.

Respectfully submitted,

Respondent

C. Michael Budlong, Esq.

ANDREW E. Becker, Esa.

BUDLONG, BECKER & MurRETT

89 Oak Street

Hartford, CT 06106

Tel. (203) 727-9900

Juris No. 405677

ai

APPENDIX TABLE OF CONTENTS

Page

Budlong v. Nadeau, Docket No. CV 88-354918 S,

8-13-91 Transcript, pp. 3-6, 161-162................ la

Budlong v. Nadeau, Docket No. CV 88-354918 S,

S-1D>-Fi TEOUCTEDE, PD. 125, TS7-150 .. cece cecess 6a

Budlong v. Nadeau, Docket No. CV 88-354918 S,

SiG Fe Temeree, OO. GG, FEE... oe ete sccceens 8a

Constitution of the United States, Fourteenth

or Sun ace ren sere ena ae nee weds 9a

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APPENDIX

Budlong v. Nadeau, Docket No. CV 88-354918 S, 8-13-91

Transcript, pp. 3 — 6

[T 3] THE COURT: Defense?

MR. NADEAU: James Nadeau.

THE COURT: N-A-D-E-A-U?

MR. NADEAU: Right.

THE COURT: All right.

MR. NADEAU: And Jean Crowe.

THE COURT: Spelled?

MS. CROWE: C-R-O-W-E.

THE COURT: C-R-O-W?

MS. CROWE: E.

THE COURT: Thank you.

MR. NADEAU: And Your Honor, she - | don’t

know how long this trial will last, and she’s working.

And I have another lady that has helped me write notes

down. So would it be possible for her to be here too, and

another day I’ll either have one or the other for another

trial.

THE COURT: If I understand correctly, sir, you

do not hear very well, is that correct?

MR. NADEAU: You’re right, Your Honor. Cor-

rect.

2a

[T 4) THE COURT: And the purpose of the per-

son sitting with you at counsel table is to assist you in

hearing and taking notes of the proceedings for you?

MR. NADEAU: Yes, Your Honor.

THE COURT: All right. You want to be heard?

Any objection to that?

MS. MURRETT: I have no objection to that,

Your Honor.

THE COURT: All right.

MS. MURRETT: As long as this person that’s

with Mr. Nadeau is not going to be questioning any

witnesses or making any comments orally.

THE COURT: Did you hear that?

MR. NADEAU: No, I didn’t hear that.

THE COURT: All right. There’s no objection.

MR. NADEAU: Yes.

THE COURT: Attorney Murrett expressed some

concern, she said no objection as long as the person with

you, in this case Ms. Crowe, is not going to be question-

ing the witnesses or making any comments. And obvi-

ously I assume that you don’t intend to have Ms. Crowe

do that.

[T 5) MR. NADEAU: Suppose I have trouble

relating something? Because my understanding of read-

ing is not perfect. Could I have her read it for me?

THE COURT: No.

3a

MR. NADEAU: If I -

THE COURT: You may have a -

MR. NADEAU: If I had subpoenaed her as a

witness —

THE COURT: Excuse me, sir.

MR. NADEAU: Okay.

THE COURT: Only one of us can talk at a time.

I’m not going to be able to hear you while I’m talking to

you, and you’re not going to be able to hear me, even

with your bad hearing, if you’re talking to me while I’m

trying to talk to you.

MR. NADEAU: Right.

THE COURT: So I'll try to listen to you, but |

can’t listen and talk at the same time. Now we have a

fancy word that we call colloquy. You can talk to her ina

whisper, so the jury can’t hear, if you can’t read part of

her notes or if you want to ask her a question about what

was said. You and she or her substitute, if she’s not here,

may communicate with each other, but noone who is not

a lawyer, or in your case pro se, being your [T 6] own

lawyer — which you have a constitutional right to do -

can talk in a courtroom unless they’re a witness. Now

you started to say something about subpoenaing her as a

witness. Would you say a little more about that?

MR. NADEAU: I have, Your Honor. Because

she has read some of my transcript, and she has done

things where - I mean, she has called the court for

information and she was insulted by the court clerk

4a

because she was threatened to be arrested because she

typed papers for me, by the court clerk.

THE COURT: What’s that got to do with this

case?

MR. NADEAU: Well, it could be important.

THE COURT: How?

MR. NADEAU: Well, it’s just that as a pro se, |

haven’t been able to get the right information to properly

defend myself. All I want to do is prove the facts.

Budlong v. Nadeau, Docket No. CV 88-354918 S, 8-13-91

Transcript, pp. 161-162

[T 161] THE COURT: Go ahead. No, ma’am.

Excuse me. Ms. Crowe, I just overheard you talk to Mr.

Nadeau, and say, put that in question form.

MS. CROWE: Yes, sir, because I thought that’s

what you said to him.

THE COURT: That’s advice. You’re there to

help him hear, not to be a lawyer. I will not permit that

again. I will remove you from counsel table if I perceive it

occurring again. Do you understand?

MS. CROWE: I understand, yes, sir.

THE COURT: Very well. Go ahead, Mr. Nadeau.

MR. NADEAU: I believe, Your Honor, you’ve

warned me long enough - oftentime that she - rather

than you do it, she thought it would be best.

5a

[T 162] THE COURT: She has a very limited job.

I’m sure she meant well, but we’re going to follow the

rules. Please put your question.

6a

Budlong v. Nadeau, Docket No. CV 88-354918 S, 8-15-91

Transcript, p. 125

{[T 125] THE COURT: ...Ma’am? Ms. Crowe?

MS. CROWE: Yes, sir.

THE COURT: It’s inappropriate for you to say,

keep going, keep going.

MS. CROWE: I was worried about the three and

a half minutes that you mentioned. I’m sorry.

THE COURT: Ma’am, you’re there to help him

hear, not to help him cross-examine.

Budlong v. Nadeau, Docket No. CV 88-354918 S, 8-15-91

Transcript, pp. 137-138

[T 137] THE COURT: Ms. Crowe, you will now

remove yourself from counsel table and take a seat in the

spectators’ section. You have abused, beyond all imagina-

tion, the great leeway that I have accorded you and Mr.

Nadeau.

MR. NADEAU: Your Honor, all she did -

reminded me was say question, question.

MS. CROWE: I said, he said question, he said

question.

MR. NADEAU: And instead of you saying it,

sir — Your Honor, she -

THE COURT: I heard what she said.

7a

MR. NADEAU: Please, I -

THE COURT: I’ve ruled. Take your seat in the

spectator section, Ms. Crowe. Proceed, Mr. Nadeau.

MS. CROWE: Can someone take my place, Your

Honor?

THE COURT: Take a seat in the spectator sec-

tion Mr. (sic) Crowe. You are not an attorney. I will not

have you advising a litigant in this Court. Take your seat

in the spectator section. Mr. Nadeau, put a question.

[T 138] MR. NADEAU: I have asked for an

alternate to write things for me.

THE COURT: Denied. Put a question.

8a

Budlong v. Nadeau, Docket No. CV 88-354918 S, 8-16-91

Transcript, pp. 60, 141

[T 60] Cross examination of James Nadeau by Ms. Mur-

rett

Q: Mr. Nadeau, can you hear me all right?

A: Yeah.

[T 141] N: I don’t even know what she is asking

for your honor. I don’t know what she -

Ct: Sir, what is it you’re saying, do you want to

have someone up there to help you hear?

N: I don’t know those terms that she is talking

about.

Ct: I can’t make her change her vocabulary, can you

hear what she is saying?

N: But I don’t know what the terms are.

Ct: Did you hear what she said?

N: Yes

9a

CONSTITUTION OF THE UNITED STATES

AMENDMENT XIV.

§ 1. Citizenship rights not to be abridged by states

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.