STATE OF CONNECTICUT, JUDICIAL BRANCH v. OFFICE OF PUBLIC HEARINGS, COMMISSION ON HUMAN RIGHTS & OPPORTUNITIES, SC 21148

Judicial District of New Britain

Attorney Regulation; Administrative Law; Discrimination; Whether Commission's Denial of Plaintiff's Motion to Dismiss Was Immediately Appealable to Superior Court; Whether Commission Lacked Jurisdiction Because Attorney's Complaint Regarding Discrimination Invaded Plaintiff's Exclusive Jurisdiction Over Attorney Regulation. The complainant, Attorney Josephine Smalls Miller, was suspended from the practice of law and, in March, 2020, applied for reinstatement. Her application was referred to a standing committee on recommendations for admission to the bar. On March 24, 2020, the plaintiff Judicial Branch suspended the processing of reinstatement applications due to the COVID-19 pandemic. In December, 2020, Miller, who is African-American, filed a federal action and a complaint with the defendant Commission on Human Rights and Opportunities (CHRO), alleging that the delay in processing her application was the result of discrimination on the basis of race. In February, 2021, the standing committee filed a motion for advice with the Superior Court as to how to proceed in light of those proceedings, and Miller filed a second complaint with the CHRO, alleging that the motion for advice was retaliatory in violation of General Statutes § 46a-60. The first complaint was dismissed for lack of probable cause, and the CHRO issued a finding of reasonable cause with respect to the second complaint, scheduled certain proceedings, and authorized discovery. The Judicial Branch moved for dismissal for lack of subject matter jurisdiction, arguing that the proceedings violated the separation of powers doctrine and that it was entitled to either judicial immunity or the litigation privilege. The CHRO denied the motion to dismiss, and the Judicial Branch appealed to the Superior Court pursuant to General Statutes § 4-183 (a) and (b). The CHRO moved to dismiss that appeal for lack of subject matter jurisdiction under § 4-183 (a), arguing that the CHRO had not issued an appealable "final decision" under § 4-183 (a) or a "final order" under General Statutes § 46a-94a (a). The trial court, relying on Nizzardo v. State Traffic Commission (259 Conn. 131), denied the motion to dismiss after concluding that the appeal was ripe and would not disrupt the underlying administrative proceedings, which had been stayed. Furthermore, the court reasoned "that [the Judicial Branch] should not have to endure the burden of litigating the underlying administrative proceeding at all" given its "exclusive jurisdiction" over Miller's application. As to the merits, the Judicial Branch contended that the CHRO had interfered with its exclusive jurisdiction in violation of the separation of powers enshrined in the Connecticut constitution, and the court agreed, finding that "allowing the CHRO to review and to adjudicate the propriety of such preliminary, discretionary decisions [such] as when to schedule hearings and when to seek legal advice on novel issues . . . would significantly interfere" with the Judicial Branch's authority and "delay the orderly function of [attorney regulation]." The court remanded the matter to the CHRO with direction to dismiss the complaint, and, after the CHRO appealed to the Appellate Court, the Supreme Court transferred the appeal to itself pursuant to General Statutes § 51-199 (c). The CHRO claims that the trial court lacked jurisdiction because, among other things, the denial of the Judicial Branch's motion to dismiss was not the "ultimate decision in a . . . contested case." The Judicial Branch argues in response that the trial court had jurisdiction under § 4-183 (b), which allows for the appeal of an preliminary agency decision when "postponement of the appeal would result in an inadequate remedy." The CHRO also claims that the trial court erroneously sustained the appeal, maintaining that it is not significantly interfering with the Judicial Branch's function and, furthermore, that it has a legitimate interest in ensuring that attorney regulation is free from improper discrimination. The Judicial Branch contends, as alternative grounds to affirm the judgment, that it is entitled to either judicial immunity or the litigation privilege, which deprive the CHRO of jurisdiction.