SUPREME COURT

OF THE
STATE OF CONNECTICUT
___________
SC 20084

ANDREW CIMMINO
Plaintiff-Appellant

vs.

MARIA MARCOCCIA, ET AL
Defendant-Appellees
____________________

PLAINTIFF IN ERROR’S BRIEF

______________________

JOSEPHINE S. MILLER, Esq.

152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
Tel: (203) 512-2795
Fax: (203) 702-5188
Email: jmillerlaw@sbcglobal.net

To be argued by:
JOSEPHINE S. MILLER, Esq.

1
 TABLE OF CONTENTS

STATEMENT OF THE ISSUES ………………………………......................... ….3

TABLE OF AUTHORITIES ………………………………................................. ….4

STATEMENT OF FACTS ………………………………….....................................7

STANDARD OF REVIEW……………………………………………………………..8

ARGUMENT

A. THE APPELLATE COURT COMMITTED REVERSIBLE ERROR

WHEN IT CLARIFIED THE DECEMBER 9, 2014 ORDER ON
FEBRUARY 15, 2018 BECAUSE THE CLARIFICATION WAS IN
EFFECT AN EX POST FACTO LAW---------------------------------------9

B. BY INITIALLY SANCTIONING AND CONTINUING TO SANCTION

PLAINTIFF THE APPELLATE COURT HAS ENGAGED IN
SELECTIVE ENFORCEMENT OF ATTORNEY
DISCIPLINE RULES-----------------------------------------------------------13

C. BY INITIATILLY SANCTIONING AND CONTINUING TO

SANCTION PLAINTIFF, THE APPELLATE COURT HAS
ENGAGED IN RACIALLY DSPARATE AND RETALIATORY
TREATMENT OF PLAINTIFF------------------------------------------------21

CONCLUSION-------------------------------------------------------------------------------------23

2
 STATEMENT OF ISSUES

1. Whether the Appellate Court committed reversible error when it “clarified” and directed

that Plaintiff in error is precluded from providing legal services of any kind in connection with

any Connecticut Appellate Court matter.

2. Whether by initially sanctioning, and continuing to sanction Plaintiff in error the

Appellate Court has engaged in selective enforcement of attorney discipline rules.

3. Whether by initially sanctioning, and continuing to sanction Plaintiff in error, the

Appellate Court has engaged in racially disparate and retaliatory treatment of Plaintiff in error.

3
 TABLE OF AUTHORITIES CITED

CASES

Attorney Grievance Commission of Maryland v. Kristan Peters-Hamlin, Misc.

Docket AG No. 30, September Term, 2015.----------------------------------------23

Briggs v. McWeeny, 260 Conn. 296 (2002)------------------------------------------------------8

Bryan Burns v. RBS Securities Inc., D/B/A Royal Bank of Scotland/Greenwich

Capital, (AC 34958)--------------------------------------------------------------------------15

Burton v. Mottolese, 267 Conn 87 (2003)--------------------------------------------------------10

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental

Protection, 253 Conn. 661 (2000) -----------------------------------------------------17

Collins v. Youngblood, 497 U. S. 37 (1990)-----------------------------------------------------10

Cummings v. Missouri, 71 U.S. (4 Wall.), 18 L.Ed. 356 (1867) ---------------------------10

Ferreira, Casey Leigh Rutter and Nancy Beale, Administratrix for the Estate of Lindsey
Beale v. Adam Janis, Luis Martins, Jorge Martins, Eagle Electric Service and
Danbury Fair Hyundai LLC.,AC 38793, AC 38699, AC 38792 -------------------15

In re Sawyer, 360 U. S. 622 (1959).--------------------------------------------------------------24

Johnson, et al. v. Carrasquilla, et al., Civil Action 3:17CV1429 (MPS)------------------21

Konigsberg v. State Bar, 353 U. S. 252 (1957).----------------------------------------------- 24

Kreiger v. Gold Bond Bldg. Products, 863 F2d 1091 (2d Cir. 1988)----------------------13

LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587
(2d Cir. 1994)----------------------------------------------------------------------------------17

LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980).--------------------------------------------17

Machado v. Statewide Grievance Committee, 93 Conn. App. 832 (2006).-------------- 8

4
MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128 (2001)--------11

Miller v. Carrasquilla, 3:15CV01111 (MPS); 3:17CV1429 (MPS)-------------------------18

Miller v. Connecticut Appellate Court, 320 Conn 759 (2016)---------------------------------12

Miller v. Maurer, Et al., AC 40654.------------------------------------------------------------------23

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958).--------------------------------25

NAACP V. Button, 371 U. S. 415 (1963)----------------------------------------------------21, 22

Payne v. Fairfield Hills Hospital, 215 Conn 675 (1990).---------------------------------------10

Perez-Dickson V. Bridgeport Board of Education, Et. Al, SC 18401-----------------------10

Sacher v. United States, 343 U. S. 1 (1952)-----------------------------------------------------20

Schware v. Board of Bar Examiners, 353 U. S. 232 (1957)--------------------------------- 24

Skakel v. Commissioner of Correction, SC 19251 (2018) -----------------------------------25

Smigelski v. Dubois, 153 Conn App. 186 (2014)-----------------------------------------------10

State v. Courchesne, 262 Conn 357 (2003).-------------------------------------------------- -11

State of Connecticut v. Glendon Thornton, AC28170-------------------------------14, 15, 16

Statewide Grievance Committee v. Dixon, 62 Conn App. 507 (2001).---------------------9

Thomas v. West Haven, 249 Conn 385 (1999)-------------------------------------------------17

Weaver v. Graham, 450 U. S. 24 (1981)--------------------------------------------------------10

5
STATUTES

Connecticut General Statutes Sec. 51-88-------------------------------------------------------10

Connecticut General Statutes §1-2z--------------------------------------------------------------10

LAW REVIEW ARTICLES

Johnstone, Quintin, Connecticut Unauthorized Practice Laws and Some Options

for Their Reform, Connecticut Law Review, Volume 36, Number 2, (2004)------9

Moliterno, James E. "Politically Motivated Bar Discipline"(2005) Faculty Publications,

Paper 928 ----------------------------------------------------------------------------------19, 25

6
 STATEMENT OF FACTS

On December 9, 2014 the Appellate Court, after an en banc hearing on an order to

show cause, issued an order suspending Plaintiff in error for a period of six months, directing,

inter alia, that she ‘may not represent any client before this court until she files a motion for

reinstatement and that motion has been granted” and that she could not file any documents

in the Appellate Court. On January 8, 2015 Plaintiff in error filed a Writ of Error to this Court

alleging various points of Error. As part of the submissions in the January 8, 2015 Writ of

Error, Plaintiff in error contended that racially disparate treatment and retaliation had been a

factor in the events leading to her suspension. On April 5, 2016 this court issued an opinion

that found, inter alia, that “[a]lthough the order of referral [to the Chief Disciplinary Counsel]

could have been clearer, we do not understand it to be a request for an investigation into the

specific conduct giving rise to this writ of error but, rather, a request for a determination of

whether Miller’s conduct before the Appellate Court was part of a larger pattern of

irresponsibility in Miller’s handling of her professional obligations.” This court refused to

address Plaintiff in error’s claim of racial disparity and retaliatory treatment and dismissed the

writ of error on all points. Since on or about December 9, 2014 and thereafter, the Chief

Disciplinary Counsel has continued to engage in broad, expansive, and selective

investigations of Plaintiff in error.

On September 14, 2017 the Danbury Judicial Grievance Panel issued a finding of

Probable Cause that Plaintiff in error “engaged in misconduct and that [Plaintiff in error]

committed a crime” with respect to her representation of a client in the matter of Williams v.

Miller, Grievance Complaint No. 17-0405. Thereafter Plaintiff in error addressed letters of

inquiry to the (a) Chief Disciplinary Counsel, the (a) Statewide Grievance Committee Bar

7
Counsel, and the (c)local panel Bar Counsel, as to the specific penal code section alleged to

have been violated. After the third letter of inquiry, the local panel revised its probable cause

finding on November 27, 2017 to a finding that Plaintiff in error “engaged in misconduct.”

Thereafter the Chief Disciplinary Counsel issued a finding that Plaintiff in error had engaged

in the unauthorized practice of law. On October 4, 2017, unknown to Plaintiff in error, the

Chief Disciplinary Counsel made a referral to the Connecticut Appellate Court stating that

“Attorney Smalls Miller may be in violation of the appellate court order of December 9, 2014.

On February 15, 2018 the Connecticut Appellate Court issued orders in each the four

disposed of cases that had been the subject of the December 9, 2014 Order. The Orders

“clarified” that “the court order of December 9, 2014 precludes Attorney Smalls Miller from

providing legal services of any kind in connection with any Connecticut appellate court matter

until se files a motion for reinstatement and that motion has been granted.” Plaintiff in error

now files this petition alleging error.

Standard of Review

The standard of review that governs a writ of error in which an attorney disputes a trial

court's disciplinary order is well established. The court’s “role is limited to reviewing the record

to determine if the facts as found are supported by the evidence contained within the record

and whether the conclusions that follow are legally and logically correct." Machado v.

Statewide Grievance Committee, 93 Conn. App. 832, 837 (2006). In conducting its review,

the court must decide whether the trial court's conclusion is supported by clear and convincing

evidence. Briggs v. McWeeny, 260 Conn. at 322-23 (2002). The court must be mindful that

"[t]he weight to be given to the evidence and to the credibility of witnesses is solely within the

8
determination of the trier of fact." Statewide Grievance Committee v. Dixon, 62 Conn App.

507, 511 (2001).

ARGUMENT

A. THE APPELLATE COURT COMMITTED REVERSIBLE ERROR

WHEN IT CLARIFIED THE DECEMBER 9, 2014 ORDER ON
FEBRUARY 15, 2018 BECAUSE THE CLARIFICATION WAS IN
EFFECT AN EX POST FACTO LAW

More than three years after the fact, the Appellate court issued an order on February

15, 2018 stating that it “hereby clarifies that this court’s order of December 9, 2014 that

precludes Attorney Smalls Miller from providing legal services of any kind in connection with

any Connecticut Appellate Court matter until she files a motion for reinstatement and that

motion has been granted.” [A-9-A-12]

The dictionary1 definition of the word clarify is that it means to “make (a statement or

situation) less confused and more clearly comprehensible.” By definition then, the original

court order of December 9, 2014 was “confused” and not “clearly comprehensible”. One

author has said that “[i]n many important respects Connecticut unauthorized practice laws are

unduly ambiguous, uncertain, and much in need of clarification.” Quintin Johnstone,

Connecticut Unauthorized Practice Laws and Some Options for Their Reform, Connecticut

Law Review, Volume 36, Number 2, (2004).

The dictionary2 definition of “ex post facto law” is “a law passed after the occurrence of

a fact or commission of an act which retrospectively changes the legal consequences or

relations of such fact or deed.”

1
Oxford Dictionary.
2
Blacks Law Dictionary.
9
 The constitutional prohibition on ex post facto laws applies to penal statutes which

disadvantage the offender affected by them. Collins v. Youngblood, 497 U. S. 37, 41 (1990).

The ex post facto clause prohibits a state from passing a law “which imposes a punishment

for an act which was not punishable at the time it was committed; or imposes additional

punishment to that then prescribed....” Cummings v. Missouri, 71 U.S. (4 Wall.), 18 L.Ed. 356

(1867) quoted in Weaver v. Graham, 450 U. S. 24, 28 (1981); Payne v. Fairfield Hills Hospital,

215 Conn 675, 683 (1990).

Attorney discipline proceedings are admittedly quasi-criminal. See Smigelski v.

Dubois, 153 Conn App. 186, 205 (2014) ( "Because a license to practice law is a vested

property interest and disciplinary proceedings are adversary proceedings of a quasi-

criminal nature, an attorney subject to discipline is entitled to due process of law.); Burton v.

Mottolese, 267 Conn 87, 105 (2003).

At worst, the situation that Plaintiff in error has now been placed in retrospectively could

constitute a violation of Connecticut General Statutes § 51-88, which is a crime and its

violators are deemed in contempt of court. See also the September 14, 2017 initial conclusion

of the Danbury Judicial Grievance Panel that Plaintiff in error had engaged in a crime. [A-

151] Thus, serious consideration should be accorded to Plaintiff in error’s claim that the label

of ex post fact law is applicable in the instant case.

Plaintiff in error could not have known that the conduct that she engaged in would be

considered in violation of the Appellate Court order dated December 9, 2014.

The closest analytical standard for examining the meaning and interpretation of the

order of referral by the Appellate Court may be found in C.G.S. §1-2z. This statutory section

10
is a codification of the Plain Meaning rule. “The meaning of a statute shall, in the first instance,

be ascertained from the text of the statute itself and its relationship to other statutes. If, after

examining such text and considering such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the

meaning of the statute shall not be considered.”

“Although we have used many different formulations of the plain meaning rule, all of

them have in common the fundamental premise, stated generally, that, where

the statutory language is plain and unambiguous, the court must stop its interpretive process

with that language; there is in such a case no room for interpretation; and, therefore, in

such a case, the court must not go beyond that language.” State v. Courchesne, 262 Conn

357, 537 (2003). MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 154

(2001) ("if the language of a statute is plain and unambiguous, we need look no further than

the words themselves because we assume that the language expresses the legislature's

intent")

The specific language of the December 9, 2014 order was that “after June 9, 2015

Attorney Josephine Smalls Miller may not represent any client before this court” and “not to

accept for filing and to return any documents filed in violation of this order.” [A-13] By the

plain meaning of the terms of the order, Plaintiff in error did not represent any client “before

this court”, nor “file any documents” on behalf of any client.

The application of the “clarified” order to Plaintiff in error violates her rights to due

process and equal protection. These constitutional claims could not have been previously

made because no new order to show cause was issued in this instance as compared with the

11
issuance of the order on December 9, 2014. Thus, Plaintiff in error asks this court to accord

extraordinary review. See State v. Golding, 213 Conn. 233, (1989).

Even this court, in ruling on the writ of error that was previously filed, had held that

“[a]lthough the order of referral could have been clearer, we do not understand it to be a

request for an investigation into the specific conduct giving rise to this writ of error but, rather,

a request for a determination of whether Miller's conduct before the Appellate Court was part

of a larger pattern of irresponsibility in Miller's handling of her professional obligations.” Miller

v. Connecticut Appellate Court, 320 Conn 759, 780 (2016) (Emphasis added).

Violating the statutory rules of construction, the Supreme Court utilized the fiction that

the order of referral by the Appellate Court “could have been clearer”. This fiction was then

used to broaden the referral from “a request for an investigation into the specific conduct

giving rise to this writ of error….to a request for a determination of whether Miller’s conduct

before the Appellate Court was part of a larger pattern of irresponsibility in Miller’s handling

of her professional obligations.” Again ignoring the principle of strict construction, the court

then stated “we do not know whether the Chief Disciplinary Counsel will find instances of

neglectful or otherwise unacceptable conduct by Miller in the Superior Court…” Miller v.

Connecticut Appellate Court, supra at 780. The Orders issued on February 15, 2018 have

the effect of criminalizing conduct of Plaintiff in error when the original Order of December 9,

2014 was confusing, unclear and required “clarification.” What both sets of orders

demonstrate is what appears to be a mindset against Plaintiff in error

1. By Clarifying and Directing that Plaintiff in Error May Not Perform

Legal Services of any Kind in Connection with any Connecticut
Appellate Court Matter, the Court has Interfered with and Impaired
the Attorney Client relationship Between Plaintiff in Error and All of

12
 Her Current and Prospective Clients

The Orders dated February 15, 2018 are so wide in breadth that the ability of Plaintiff

in error to ethically perform her professional obligation to current and prospective clients is

impaired. Any trial lawyer who has even a rudimentary understanding of appellate practice

knows that matters must be handled at the trial level with an eye toward possible appeal.

Therefore even perfecting the record at the trial level such as through a motion for articulation

could be considered a legal service “in connection with an Appellate Court matter.” Even

advising a client whether to take an appeal from a trial court decision could be considered a

legal service “in connection with an Appellate Court matter.”

It cannot be gainsaid that such a crippling application of the February 2018 Orders

would impair not only any appellate work but also the trial work of Plaintiff in error.

B. BY INITIALLY SANCTIONING AND CONTINUING TO SANCTION

PLAINTIFF THE APPELLATE COURT HAS ENGAGED IN
SELECTIVE ENFORCEMENT OF ATTORNEY DISCIPLINE

When the writ of error was filed with this court regarding the December 9, 2014

Appellate Court order, it had all the feel of one of the many racial discrimination and/or

retaliation cases that Plaintiff in error had litigated over the course of her thirty plus years as

a lawyer. See for example Kreiger v. Gold Bond Bldg. Products, 863 F2d 1091, 1095 (2d

Cir. 1988) (finding as pretextual the employer’s claimed reasons for terminating a female

employee when the manager had a “mindset” against her and carefully laid a paper trail

documenting her version of circumstances which would allow him ultimately to justify her

termination).

13
 The carefully laid paper trail set forth a claim that the conduct of Plaintiff in error inter

alia, “exhibited a persistent pattern of irresponsibility in handling her professional obligations

before this court”, “consumed an inordinate amount of the court’s time and her opponent’s

resources”, lacked knowledge of appellate practice and procedure”.

However, upon even a random sampling of the conduct of numerous other attorneys

before the Appellate Court, the following can be found.

Records of the Appellate Court, of which this court may take judicial notice, establish

that it is and has been a common occurrence for attorneys who handle appeals to fail to abide

by the court’s rules. For example, Connecticut Practice Book § 66-1 (e) states that

“ [a] motion for extension of time shall be filed at least ten days before the
expiration of the time limit sought to be extended or, if the cause for such
extension arises during the ten day period, as soon as reasonably possible
after such cause has arisen. No motion under this rule shall be granted
unless it is filed before the time limit sought to be extended by such motion
has expired.”

However, in State of Connecticut v. Thornton, AC 28170, on one occasion the attorney

filed a motion for extension of time to file his brief in the due date and on another occasion it

was filed two days before the due date. Connecticut Practice Book § 66-1 (b) states “motion

for extension of time to file a brief must specify the current status of the brief or preparations

therefor, indicate the estimated date of completion. In none of the many motions for extension

of time file in Thornton does the attorney comply with the rule that requires a statement

regarding the extent to which the brief has been completed. Connecticut Practice Book § 63-

4 (a)(1), (2) and (3) requires that “ [w]ithin ten days of filing an appeal, the appellant shall

also file with the appellate clerk”… preliminary statement of issues, docketing statement,

14
preliminary designation of pleadings, court reporters signed acknowledgement with estimated

date of delivery, and docketing statement. In Thornton, an overdue document notice was

sent to the attorney on November 7, 2006, stating that appellant’s preliminary statement of

issues, docketing statement, preliminary designation of pleadings, court reporters signed

acknowledgement with estimated date of delivery were due on October 18 and had not been

filed; if not filed immediately the case will be scheduled for dismissal. The required documents,

dated November 9, not received at the appellate court until date stamp of November 14, 2006.

[A-29]

In another appeal handled by the same attorney (i.e. Bryan Burns v. RBS Securities

Inc., D/B/A Royal Bank of Scotland/Greenwich Capital, AC 34958) there is no record of the

order of the transcript, nor court reporter acknowledgement of order with estimated date of

delivery. The transcript was delivered to the party on 12/11/2012 but not delivered to the

court until almost a year later on 10/4/2013. [A-45]

In the appeal Jason Ferreira, Casey Leigh Rutter and Nancy Beale, Administratrix for

the Estate of Lindsey Beale v. Adam Janis, Luis Martins, Jorge Martins, Eagle Electric Service

and Danbury Fair Hyundai LLC.,AC 38793, AC 38699, AC 38792 defendant-appellee’s

attorney failed to timely file the appellee’s brief, which was due on 1/4/2017. On 2/3/2017,

the court issued an order nisi, (apparently, retroactively,) allowing the attorney an additional

seventeen (17) days, until 1/21/2017, to file his client’s brief, or in the alternative, allowing the

appeal to go forward, without the benefit of the appellee’s brief being included for

consideration. The attorney failed to file his client’s brief on January 21, 2017. On 2/10/2017,

one week past the court’s February 3rd order, three weeks past the January 21st extended

15
filing deadline and nearly forty (40) days past the original due date for filing its appellate brief,

the attorney filed a motion requesting until 3/15/2017 to file his client’s appellate brief. [A-31]

Similarly in Carmen Perez-Dickson V. Bridgeport Board of Education, Et. Al, SC 18401,

counsel for Defendant-appellees, regularly disregarded rules of appellate practice and

procedure. For their opening appellate brief, reply brief and reply to cross-appeal, Defendants

filed ten motions for extension of time: regularly disregarding the requirement that such

motions be filed at least ten days prior to the due date of the brief. [A-49]

In State of Connecticut v. Glendon Thornton, AC28170, the new counsel for appellant,

on the filing date (i.e. 6/4/08) the attorney filed a motion for extension of time until July 7,

2008; on 6/5/08 the motion was granted; no statement is made regarding the extent of

completion of the brief; on the filing deadline (i.e. 7/7/08 a motion for extension of time is filed

seeking until 8/7/08 to file, on 7/8/08 the motion is granted with a final extension until 8/7/08;

while the estimated completion date is given, no statement is made regarding percent

completion. [A-47; A-79]

Despite these violations3 of the rules of practice and procedure, the records of the

Appellate Court are devoid of any orders to show cause that resulted in the suspension of or

referral for discipline of any of the named attorneys. Thus, it is only Plaintiff in error who had

the practice and procedure rules selectively enforced against her.

3
Included in the appendices are ten examples of attorneys who failed to comply with Appellate
Court rules of practice and procedure.
16
 The initial order of December 9, 2014 constituted a selective enforcement of rules

against Plaintiff in error. She is now faced with a retrospective order that has resulted in a

charge of unauthorized practice of law, a criminal or quasi-criminal charge.

To make out a claim for selective enforcement, a claimant must prove that: "(1) the

[claimant], compared with others similarly situated, was selectively treated; and (2) . . . such

selective treatment was based on impermissible considerations such as race, religion, intent

to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure

a person." Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental

Protection, 253 Conn. 661, 671 (2000); LaTrieste Restaurant & Cabaret, Inc. v. Village of Port

Chester, 40 F.3d 587, 590 (2d Cir. 1994); LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.

1980). As this court said in Thomas v. West Haven, 249 Conn 385, 401 (1999) “equal

protection does not just mean treating identically situated persons identically. If a bad person

is treated better than a good person, this is just as much an example of unequal treatment as

when a bad person is treated better than an equally bad person or a good person worse than

an equally good person."

If the truth is told, Plaintiff in error has been successful in combining a trial and appellate

practice. Of four cases argued before the Connecticut Supreme Court, three have been

successful. She has successfully argued before the Appellate Court, the Virginia Supreme

Court and the Second Circuit Court of Appeals. The procedural “violations” that resulted in

the December 9, 2014 and February 15, 2018 Orders are no different than those of other

attorneys, some of whose practice specialty was appellate law.

17
 The attorneys involved in handling the appeals of those cases listed in the appendix

[A-29- A-145] were similarly situated to Plaintiff in error and engaged in the same, similar or

worse violations of the Appellate Court’s rules of practice and procedure. What is different

about them is that they are all Caucasian and/or appear not to have engaged in the exercise

of constitutional right of forcefully representing civil rights Plaintiffs.

As Justice Espinosa opined in LaPointe v. Commissioner of Correction, (Conn 2015)

“[i]t is not necessary to engage in any ‘‘divination’’ to discern the impetus driving the majority’s

decision. My conclusion is that the majority begins with the conviction that the petitioner is

innocent, and only constructs its analysis after it has arrived at that conclusion,…” LaPointe

dissent. In the instant case Plaintiff in error has been hailed before the Appellate Court with

the foregone conclusion that she is guilty of misconduct even when the specific facts establish

otherwise.

Plaintiff in error been hawkish in protesting the discriminatory and retaliatory manner

that the judicial branch and its agents (disciplinary and grievance authorities) has treated her.

This has included (a) a complaint of discrimination filed with the Commission on Human

Rights & Opportunities against the Office of Chief Disciplinary Counsel [CHRO Case No.

1610026] alleging a violation of C.G.S. § 46a-71; (b) a complaint with CHRO against the

Statewide Grievance Committee [CHRO Case No. 1610342] also alleging a violation of

C.G.S. § 46a-71; (c) a federal civil action in alleging discriminatory and retaliatory investigation

by disciplinary authorities in Miller v. Carrasquilla, et al. Civil Action No. 3:15CV01111 (MPS);

18
Civil Action No. 3:17CV1429 (MPS).4 This court may also take judicial notice of the complaint

of Plaintiff in error in Miller v. City of Bridgeport Police Department, et al., [16-4102cv] that

alleged, inter alia, racial discrimination in the refusal to pay her as Caucasian lawyers,

placement of her on a “no pay” list, bribery, and tortious interference with her contracts with

clients (e.g. Bridgeport Assistant City Attorney who encouraged Plaintiff’s client not to use her

but recommended a Caucasian lawyer).

In a well-researched law review article, [Moliterno, James E. "Politically Motivated Bar

Discipline"(2005) Faculty Publications, Paper 928

http://scholarship.law.wm.edu/facpubs/928] it has been documented that lawyers who

represent unpopular causes or unpopular persons, who are not politically connected, or those

who bore ethnic identities that the organized bar found threatening to its “homogeneity of

thought" have been subjected to unwarranted discipline processes. Moliterno, Id.

This fierce criticism of certain lawyers has in the past come from the highest levels of

judicial, government, and bar leadership. Ronald Reagan was openly hostile to legal services

lawyers. Chief Justice Warren Burger gave substantial blame for the impending downfall of

the profession to lawyers in political trials and encouraged the legal profession to apply

"rigorous powers of discipline" to the misbehaving lawyers by using either the judicial or bar

enforcement systems". To fail to use such discipline he warned, would allow "the jungle [to]

clos[e] in on us.". Fred P. Graham, "Burger Assails Unruly Lawyers", N.Y. TIMES, May 19,

1971, (quoting and excerpting from speech).

4
The court may take judicial notice of the pending appeal in this matter before the Second
Circuit Court of Appeals in Miller v. Carrasquilla, et al. [16-2896cv]
19
 In the case of noted attorney William Kunstler, the Association of the Bar of the City

of New York so eagerly awaited the opportunity to discipline him that it began proceedings

before the Chicago Seven trial had ended, violating its own rules of procedure. Tom

Goldstein, Bar Group Withdraws Charges Against Kunstler, N.Y. Times, Feb. 21, 1974, at 34.

In dissenting from a Supreme Court's affirmance of a contempt conviction of a lawyer whose

otherwise unblemished 24 year record resulted in disbarment because he deigned to

represent an alleged Communist Party member, Justice Black wrote, "[T]his summary

blasting of legal careers ... constitutes an overhanging menace to the security of every

courtroom advocate in America. The menace is most ominous for lawyers who are obscure,

unpopular, or defenders of unpopular persons or unorthodox causes." Sacher v. United

States, 343 U. S. 1, 18 (1952 Black, J, dissenting).

The manner in which the disciplinary authorities have chosen to go after and

investigate Plaintiff in error for matters that hardly raise an eyebrow for others is explainable

by the political and racial motivation because she is a civil rights lawyer who litigates

unpopular causes and is unapologetically black in her worldview. In a prior grievance hearing,

the Chief Disciplinary Counsel has recommended a presentment against Plaintiff in error for

the stated reason that she did not like Plaintiff’s “attitude” and in written communication in the

same grievance that attorneys usually panic when confronted with a grievance. The attitude

of the lawyer and their lack of fear should not be any factor in whether discipline is imposed

or even recommended. Because of the referral from the Appellate Court resulting from the

December 9, 2014 Order, Disciplinary Counsel has pursued Plaintiff in error with the kind of

vengeance that one might expect of a lawyer who is an alcoholic, a crackhead or an

embezzler, not one who failed to file a notice of transcript on time.

20
 “These matters are referred to the Chief Disciplinary Counsel for review and further

action as it is deemed appropriate”. [A-15] [Emphasis added] The three page order issued

by the Appellate Court on December 9, 2014 concerned the consolidation of four cases then

on appeal that were being handled by the Plaintiff in error. The opening paragraph of the

order twice refers to conduct “before this court”. Paragraph two of the order refers once again

to “conduct before this court”, “this court’s time”, and knowledge of “our rules of procedure”.

Even the portion of the order that addresses specific actions to be taken by the Plaintiff in

error all relate to the Appellate Court with repeated reference to “this court” and “appellate

practice and procedure”. Yet this court gave wide latitude to the Disciplinary Counsel to

engage in wholesale investigation of Plaintiff in error, resulting in investigation of state and

federal court matters. See e.g. Johnson, et al. v. Carrasquilla, et al., Civil Action

3:17CV1429 (MPS) (complaint paragraphs 29-116).

The issue is not whether the Appellate Court has the right or the authority to monitor

attorney conduct and to discipline when appropriate. Instead the issue is whether the

Appellate should selectively enforce the rules of appellate practice and procedure and

attorney discipline in a manner that falls disparately upon Plaintiff in error when compared

with other attorneys who practice before that court.

C. BY INITIATILLY SANCTIONING AND CONTINUING TO

SANCTION PLAINTIFF, THE APPELLATE COURT HAS
ENGAGED IN RACIALLY DSPARATE AND RETALIATORY
TREATMENT OF PLAINTIFF

As the U. S. Supreme Court has said "[p]recision of regulation must be the touchstone

in an area so closely touching our most precious freedoms." N.A.A.C.P. v. Button, 371 U. S.

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415 (1963). Cf. In Re Primus, 435 U. S. 412 (1978). Tthe NAACP v. Button case relied

upon the First Amendment for its majority holding, there is no question that the action of

Virginia's legislative and judicial branches was to attack African-American lawyers or those

who espoused racial equality through litigation.

The evidence that establishes the selective enforcement of the Appellate Court’s rules

of practice and procedure also establish that the distinction between Plaintiff in error and those

attorneys who have escaped rules enforcement is that they are all Caucasian and Plaintiff in

error is Negro. Not only was the conduct of Plaintiff in error no different than Caucasian

attorneys handling appellate work, the comparator evidence regarding the unwillingness of

Connecticut state courts to discipline serious and egregious conduct for Caucasians.

Comparator evidence regarding attorney Peters-Hamlin demonstrates how little regard

the Disciplinary Counsel has for instances when attorneys engage in misconduct and conduct

detrimental to the administration of justice. This attorney was suspended for seven years by

the New York State and Federal Courts, disbarred in Maryland state court but has never been

reprimanded by Connecticut State or Federal courts except for a retroactive suspension.

The state judicial website does not list any reprimand of her and she has not lost a single day

of legal practice. Her misconduct is amply demonstrated that “while serving as lead counsel

for a plaintiff in a trade secrets infringement suit in New York, instructed a first-year associate

to “mark-up” deposition transcripts and claim them as attorney work product; knowingly made

false statements to mislead the court as to these events; and made copies and ordered

additional copies of deposition transcripts for use in another matter, in contravention of court

confidentiality orders. Respondent engaged in conduct involving repeated intentional

dishonesty, misrepresentations, and deceit.” Judicial notice may be taken by this reviewing

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panel of the matter of Attorney Grievance Commission of Maryland v. Kristan Peters-Hamlin,

Misc. Docket AG No. 30, September Term, 2015. Opinion by Hotten, M. Peters-Hamlin

pursued her appeal of a seven year suspension for seven years, during which time all

consideration of reciprocal discipline was held in abeyance by Connecticut State and Federal

courts. At the end of this extended period of appeals, a Connecticut superior court judge

found that Peters-Hamlin had “suffered enough” and that no discipline was warranted. If

Connecticut disciplinary authorities could overlook this history of misconduct by this

Caucasian female attorney, then it has no genuine cause to discipline Plaintiff in error.

In the appeal of an interpleader action presently pending before the Appellate Court,

the admittedly seriously negligent conduct of Caucasian female attorney Elisabeth Maurer

was nevertheless found by the trial court to be “diligent”. Miller v. Maurer, Et al., AC 40654.

During the pendency of the federal court action, that court noted in ruling on a motion by

Defendant to compel production of documents, that Defendant affirmed that “after over

twenty-seven months of waiting, [they] have not received a single document related to

treatment by Drs. Graham, Khalid, Nahajan or Astoria Park.” Moreover, the court found that

after the motion to compel was filed, “Plaintiff provided fifty-six pages of medical records

from Dr. Janak Srinivasan, dating from May 2007 through July 2011; and one hundred fifty

pages of records from Tomy Aprame, dating from December 2007 through August 2011.”

[See Miller v Maurer, AC 40654; A-86] The federal lawsuit had been filed in 2007 and the

motion to compel was filed on 10/7/11. Thus Attorney Maurer failed to produce in discovery

documents that had been either in her possession or available to her from Rodriguez’s

principle treating physical and mental health experts. Even more telling is Attorney Maurer’s

own admissions in her opposition to the Defendants’ motion to dismiss. She wrote

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“[e]mbarrassingly, counsel concedes that it is to blame for much of the late disclosures

and production of documents in this case. Counsel pleads to the Court for its empathy in

this blatant oversight of its own obligations to the Court….The delays which have occurred

have not been out of disrespect or contumacy. It is shameful and contrary to Plaintiff’s

practice to have necessitated the Court’s intervention on so many occasions ad to now be in

the positon of pleading for its forgiveness.” …caused numerous oversights by counsel and

ultimately resulted in the unprofessional and sloppy piecemeal production which lands us here

today…. Concededly, Plaintiff’s non-compliance has been extensive. …Plaintiff cannot, in

good faith, make a straight-faced argument to this Court that any of the delays were

“substantially justified….[C]ounsel has heard the Court’s wake-up call as is evidenced by this

objection which forces counsel to put its tail between its legs and cower toward the tribunal in

embarrassment.” [See Miller v. Maurer, AC 40654; A-70]

These are merely two examples of Caucasian females whose professional conduct far

surpasses any pattern of irresponsibility or misconduct that has been levelled against Plaintiff

in error. Yet their conduct has neither earned opprobrium, nor referrals for disciplinary

investigation, nor suspension, nor apparently any concern regarding the “pattern of

irresponsibility” alleged regarding Plaintiff in error.

CONCLUSION

More than fifty years ago the United States Supreme Court said that a “State may not,

under the guise of prohibiting professional misconduct, ignore constitutional rights”.

[Emphasis added] See Schware v. Board of Bar Examiners, 353 U. S. 232 (1957); Konigsberg

v. State Bar, 353 U. S. 252 (1957). Cf. In re Sawyer, 360 U. S. 622 (1959).

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NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 461 (1958).

When lawyers are disciplined for the purpose of silencing their "non-homogenous

voices" the public at large is harmed.

"Some politically motivated bar complaints or bar actions may have technical
merit, at least at the time of their initiation. But even the meritorious ones would
not be filed in the usual course of things without the impetus of some political or
other untoward motivation. In the absence of merit, if a bar complaint bears
other marks of political action (other interests of the complaining party, context
of the complaint), a political motive for the action is highly likely. When the bar
complaint is demonstrably meritless, it fits a historical pattern of politically
motivated discipline." Moliterno, Id.

The same question posed by Justice Espinosa in a recent dissent is appropriate in this

matter. Is it only “wealthy, white, politically connected defendants,…. like the petitioner, [who]

are entitled to special treatment from the courts?” Skakel v. Commissioner of Correction, SC

19251 (2018)

The foregoing facts clearly demonstrate that there has been a carrying out of politically

motivated complaints from the Connecticut Judicial Branch and disciplinary authorities to

silence Plaintiff in error for her refusal to think and speak homogeneously, in lock step with

the majority Caucasian bar. It is respectfully submitted that this court should have the courage

to reject the politically motivated efforts of the disciplinary authorities and the judicial branch

to create a paper trail for continued discipline/suspension of Plaintiff in error.

One commentator has said that "politically motivated bar complaints"… those that

would not be lodged but for a political motivation … are not pursued to vindicate the lawyer

ethics issues raised by the complaints, but rather to achieve some political goal or effect. Such

complaints often play a part in a larger drama. … and usually such bar actions lack [genuine]

merit." Moliterno, Id. When genuine merit is lacking, such as in the instant case, the

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regulation of attorney conduct becomes tainted, precision of regulation is discarded, and the

public confidence in the system of justice is undermined.

As the judge assigned to hear the presentment complaint lodged against Attorney

Peters-Hamlin said, she had “suffered enough”. It must be asked, hasn’t Plaintiff in error

suffered enough selectively enforced, unwarranted discipline, investigations, and public

derision?

The Orders of December 9, 2014 and February 15, 2018 should be vacated.

THE PLAINTIFF IN ERROR

_/S/Josephine S. Miller_______________
JOSEPHINE S. MILLER, JURIS # 422896
152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
Tel: (203) 512-2795
Fax: (203) 702-5188

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 CERTIFICATION

The undersigned attorney hereby certifies, pursuant to Connecticut Rule of Appellate

procedure § 67-2, that on May 14, 2018

The electronically submitted brief and appendix was delivered electronically to the last

known e-mail address of each counsel of record for whom an e-mail address was provided;

and

The electronically submitted brief and appendix and the filed paper brief and appendix

have been redacted or do not contain any names or other personal identifying information

that is prohibited from disclosure by rule, statute, court order, or case law; and

A copy of the brief and appendix was sent to each counsel of record and to any trial

judge who rendered a decision that is the subject matter of the appeal, in compliance with

Section 62-7; and

The brief and appendix filed with the appellate clerk are true copies of the brief and

appendix that were submitted electronically; and

The brief complies with all provisions of this rule.

Alayna Stone
Assistant Attorney General
55 Elm Street, P. O. Box 120
Hartford, CT 06141-0120

__/s/Josephine S. Miller________________
Josephine S. Miller

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