Fed. Grievance Comm. v. Josephine S. Miller ( 2020 )

19-1676-cv
Fed. Grievance Comm. v. Josephine S. Miller
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of March, two thousand twenty.
PRESENT:
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
FEDERAL GRIEVANCE COMMITTEE,
Petitioner-Appellee,
v. No. 19-1676-cv
JOSEPHINE SMALLS MILLER,
Respondent-Appellant.
_____________________________________
FOR RESPONDENT-APPELLANT: JOSEPHINE S. MILLER, pro se, Danbury,
CT.
FOR PETITIONER-APPELLEE: ROBERT M. FROST, JR., Frost Bussert
LLC, New Haven, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Underhill, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
On February 7, 2019, Petitioner-Appellee, the Federal Grievance Committee
of the United States District Court for the District of Connecticut (“FGC”) initiated
a presentment action against Respondent-Appellant Josephine S. Miller pursuant
to District of Connecticut Local Rule 83.2(f)(2), seeking reciprocal discipline based
on Miller’s one-year suspension in Connecticut state court. The Superior Court of
Connecticut (“Superior Court”) had suspended Miller on November 26, 2018 for
several violations of the Connecticut Rules of Professional Conduct.
On May 10, 2019, the District Court issued a final order imposing reciprocal
discipline on Miller pursuant to Local Rule 83.2(f)(2). Miller, proceeding pro se,
appeals. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
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As a preliminary matter, Miller asserts that because her appeal of her state-
court suspension is still pending before the Connecticut Supreme Court, the District
Court lacked the authority to impose reciprocal discipline. We disagree.
Generally, a district court has the inherent authority to discipline attorneys
appearing before it. See Matter of Jacobs, 44 F.3d 84, 87 (2d Cir. 1994) (“A district
court’s authority to discipline attorneys admitted to appear before it is a well-
recognized inherent power of the court.”); see also Theard v. United States, 354 U.S.
278, 281 (1957) (“The two judicial systems of courts, the state judicatures and the
federal judiciary, have autonomous control over the conduct of their officers,
among whom, in the present context, lawyers are included.”); cf. Fed. R. App. P.
46(b). Further, nothing in the Local Rules provides that all appeals at the state
level must be exhausted before a district court may impose reciprocal discipline.
See D. Conn. L. Civ. R. 83.2(f)(2). Miller cites no case law, and we are unaware of
any, that stands for the proposition that reciprocal discipline cannot be imposed
until all avenues of appeal have been exhausted in the jurisdiction originally
imposing the discipline. The District Court was within its jurisdiction and
authority to discipline Miller. 1
1 We note that Miller did not move for a stay until after the District Court disciplined her.
3
Miller also contends that the District Court “rubber stamp[ed] the
disciplinary decisions” of the Superior Court and that, in doing so, the court
violated her due process and equal protection rights. Contrary to Miller’s
assertions, we conclude that the District Court acted within its discretion in
imposing reciprocal discipline on Miller under the circumstances presented.
Pursuant to Local Rule 83.2(f), upon learning that an attorney was
disciplined “by order of the Courts of Connecticut,” counsel for the FGC will
institute a presentment, petitioning the District Court to impose reciprocal
discipline on the offending attorney. D. Conn. L. Civ. R. 83.2(f)(1), (2). The
District Court will hold a hearing, and, thereafter,
shall impose the identical discipline against the attorney unless the
Court finds that, on the face of the record upon which the discipline in
another jurisdiction is predicated, it clearly appears:
a. that the procedure was so lacking in notice or opportunity to
be heard as to constitute a deprivation of due process; or
She could have moved to stay the reciprocal-discipline proceedings in the District Court on
the ground that her appeal of the state-court suspension was pending, but she did not do
so. Further, when Miller finally moved to stay the District Court’s order imposing a
reciprocal suspension (pending the outcome of her state-court appeal), the District Court
granted her conditional relief: The court stayed the order of reciprocal discipline “during
any period when the state discipline has been stayed,” but otherwise affirmed the federal
suspension so long as the state-court suspension remained in effect. In doing so, the
District Court crafted a reasonable response—one we decline to disturb.
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b. that there was such an infirmity of proof establishing the
misconduct as to give rise to the clear conviction that the Court
could not, consistent with its duty, accept as final the discipline
imposed; or
c. that the imposition of the same discipline by the Court would
result in grave injustice; or
d. that the misconduct established is deemed by the Court to
warrant substantially different discipline.
D. Conn. L. Civ. R. 83.2(f)(2). 2 If the District Court finds that one or more of these
exceptions applies, it may enter “such other order as it deems appropriate.” Id.
When the District Court considers reciprocal discipline, its standard of
review “is highly deferential to the state court’s determination.” In re Williams,
978 F. Supp. 2d at 125 (citing Theard, 354 U.S. at 282); see also In re Roman, 601 F.3d
189, 192–94 (2d Cir. 2010). At the District Court, the burden falls on the attorney,
here Miller, “to demonstrate by clear and convincing evidence that reciprocal
discipline should not be imposed.” In re Zelotes, No. 3:13-GP-18 (SRU), 2017 WL
354849, at *2 (D. Conn. Jan. 23, 2017); accord In re Friedman, 51 F.3d 20, 22 (2d Cir.
2 “Local Rule 83.2(f) is identical to ABA Model Federal Rule of Disciplinary Enforcement,
R.II(D) (1991). The rule reflects the standard set forth in Selling . . . which bars reciprocal
discipline when the court finds an absence of due process in the prior disciplinary
proceeding, substantial infirmity in the proof of a violation, or some other grave reason
sufficient to indicate that reciprocal discipline is inconsistent with principles of justice.”
In re Williams, 978 F. Supp. 2d 123, 125 n.1 (D. Conn. 2012), aff’d Fed. Grievance Comm. v.
Williams, 743 F.3d 28 (2d Cir. 2014), as amended (Apr. 10, 2014) (citation omitted).
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1995). The District Court “must determine whether the record of the prior
[disciplinary] proceeding discloses a substantial defect covered by one of the
exceptions” in Local Rule 83.2(f)(2). In re Zelotes, 2017 WL 354849, at *2; see also D.
Conn. L. Civ. R. 83.2(f)(2). If no such defect is found, the District Court will impose
reciprocal discipline. D. Conn. L. Civ. R. 83.2(f)(2). We then will review the
District Court’s imposition of disciplinary sanctions for a clear abuse of discretion.
See In re Gouiran, 58 F.3d 54, 56 (2d Cir. 1995).
Before the District Court, Miller failed to prove, by clear and convincing
evidence, that any of Rule 83.2(f)(2)’s exceptions applied. First, she did not prove
that the prior state disciplinary proceeding “was so lacking in notice or opportunity
to be heard as to constitute a deprivation of due process.” D. Conn. L. Civ. R.
83.2(f)(2)(a). The Superior Court held a three-day hearing at which Miller
presented witnesses and exhibits. Miller then submitted a post-hearing brief.
The Superior Court issued its decision in a thoughtful forty-page memorandum.
Based on the procedural history of her case in Connecticut Superior Court, there is
no question that Miller was afforded adequate process. Her argument before the
District Court and now again on appeal—that she was treated differently than
Caucasian attorneys—is inapposite.
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Second, Miller’s evidence did not come close to establishing that there was
“infirmity of proof” as to the Superior Court’s disciplinary findings. D. Conn. L.
Civ. R. 83.2(f)(2)(b). Rather than attempting to refute the Superior Court’s
findings, she instead asserted she was being racially discriminated against by the
Connecticut Judicial Branch. This claim does not pertain to the underlying facts
that support Miller’s suspension.
Finally, Miller did not prove that imposition of reciprocal discipline would
result in a “grave injustice,” nor did she establish that her misconduct warranted
substantially different discipline than that imposed by the Superior Court. D.
Conn. L. Civ. R. 83.2(f)(2)(c), (d); see also In re Roman, 601 F.3d at 193–94 (“We treat
the noted fourth category [Local Rule 83.2(f)(2)(d)] as subsumed by the ‘grave
reason’ category set forth in Selling [and in Local Rule 83.2(f)(2)(c)].”). Although
Miller argued that a grave injustice resulted from her not being provided an
adequate forum to redress her constitutional claims of discrimination, both the
Superior Court and the District Court correctly noted that this defense was
misplaced and ineffective. Local Rule 83.2(f)(2) contains adequate due process
protections, giving the District Court the ability to alter or decline reciprocal
discipline as it deems appropriate. See D. Conn. L. Civ. R. 83.2(f)(2). Had the
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District Court found merit in Miller’s assertions of racial bias, it could have,
pursuant to its discretion under the Local Rule, taken this into account in
formulating its order, including by declining to impose reciprocal discipline. The
District Court, however, did not have to consider these assertions, and it therefore
did not clearly abuse its discretion in refusing to do so. See id.; In re Gouiran, 58
F.3d at 56.
We have reviewed the remainder of Miller’s arguments and find them to be
without merit. For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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