Opinion
No. CV 04 400 0632
February 18, 2005
On August 31, 2004, the petitioner, the Chief Disciplinary Counsel, filed a Presentment of Attorney for Conviction of Felony and Application for Order of Interim Suspension, pursuant to Practice Book Sec. 2-41. In its presentment the Chief Disciplinary Counsel alleges that respondent Francis Sablone, an attorney admitted to practice law in Connecticut, was convicted in the United States District Court for the District of Connecticut of violating 26 U.S.C. § 7203, by wilfully failing to pay his federal income taxes.
Any person required under this title to pay . . . tax, who willfully fails to pay such . . . tax, shall . . . be guilty of a misdemeanor . . .
On August 17, 2004, the District Connecticut, Covello, J., found Francis Sablone guilty of violating 26 U.S.C. § 7203, by willfully failing to pay his tax and sentenced him to four years probation with six months of the sentence to be spent in home confinement. In addition, the respondent was fined $15,000. Title 26 U.S.C. § 7203 states that the failure to pay tax is a misdemeanor.
In addition, the petitioner states in its presentment that the respondent, on December 6, 1991, was convicted of conspiracy and securities fraud in violation of 18 U.S.C. § 371 and 15 U.S.C. § 78(b), respectively. By court order dated December 6, 1991, judgment entered against him for the aforementioned conspiracy and securities fraud charges, and he was sentenced to, among other things, three years probation with six months of the sentence to be spent in home confinement. Also he was fined $5,000. The presentment also recites that as a result of this conviction in 1991 respondent's Connecticut license to practice law was suspended by the Superior Court for a two-year term commencing on April 18, 1994.
The respondent has filed a Motion to Dismiss predicated upon his contention that the Chief Disciplinary Counsel does not have the authority, pursuant to Practice Book § 2-41, to bring a presentment complaint against him for his conviction, under Title 26 U.S.C. Sec. 7203, for failing to pay taxes. In this regard the respondent stresses that Practice Book Sec. 2-41 authorizes the Chief Disciplinary Counsel to bring a presentment for conviction(s) in another jurisdiction (i.e. federal not Connecticut state) only in the following situations:
Sec. 2-41. Discipline of Attorneys Convicted of a Felony and Other Matters
(a) An attorney shall send to the disciplinary counsel written notice of his or her conviction in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States of a serious crime as hereinafter defined within ten days of the entry of the judgment of conviction.
(c) The term "serious crime" as used herein shall mean any felony or any larceny as defined in the jurisdiction in which the attorney was convicted or any crime for which the attorney was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed. (Emphasis added.)
(e) . . . Upon receipt of the certified copy of the judgment of conviction, the disciplinary counsel shall file a presentment against the attorney with the superior court . . . The filing of a presentment shall be discretionary with the disciplinary counsel where the offense for which the attorney has been convicted carries a period of incarceration of one year or less.
1) conviction of a felony; 2) conviction for larceny, as defined in the jurisdiction of conviction; or
3) conviction of any crime for which the attorney was sentenced to a term of incarceration or a crime for which a suspended period of incarceration was imposed.
Respondent Francis Sablone, Jr. argues that his conviction for failure to pay taxes is not covered by Practice Book Sec. 2-41 because the statute under which he was convicted for failure to pay taxes, Title 26 U.S.C. Section 7203, by its very wording characterizes the failure as a misdemeanor. Thus, he argues that his case does not fit the first category under Section 2-41, since it is not a felony. He points out that since it is not a larceny, his conviction does not fall under the second category. He further argues that his conviction does not fit under the third category since his conviction a) did not carry with it a sentence to a term of incarceration, and b) he was not sentenced to a suspended period of incarceration.
Analysis
"A Motion to Dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the petitioner cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
The respondent has moved to dismiss the petitioner's presentment complaint on the ground that the petitioner does not "possess the authority to file a presentment against an attorney based upon a conviction for a misdemeanor, not based on larceny, in which a fully suspended sentence of probation was imposed." Specifically, the respondent argues that he has not been convicted of a serious crime as defined in Practice Book § 2-41(c). Additionally, the respondent contends that § 2-41 does not give the petitioner discretion to file a presentment where a respondent has not been convicted of a serious crime. The respondent argues, therefore, that in light of statutory construction and interpretation, his particular federal misdemeanor conviction cannot be the basis of a presentment complaint under § 2-41.
The petitioner argues, inter alia, that § 2-41 includes the same crimes that may invoke discipline under § 2-40. The petitioner asserts that § 2-41(e), which provides, inter alia, that the disciplinary counsel has discretion to bring a presentment against an attorney where the offense for which the attorney was convicted carries a period of incarceration of one year or less, is applicable to a sentence of probation in federal court. Further, the petitioner argues that the court must consider the public policy behind § 2-41, namely, the protection of the court system and the administration of justice from attorneys who violate laws adversely reflecting on their fitness to practice law.
Statutory Construction of Practice Book § 2-41
Practice Book § 2-41(a), a section governing the discipline of attorneys who are convicted of a felony and other matters in another jurisdiction, provides, in relevant part, that "[a]n attorney shall send to the disciplinary counsel written notice of his or her conviction in any court of the United States . . . of a serious crime as hereinafter defined . . ." (c) The term "serious crime" is defined in § 2-41(c) as "any felony or any larceny as defined in the jurisdiction in which the attorney was convicted or any crime for which the attorney was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed." Practice Book § 2-41(e) provides in part: "[t]he filing of a presentment shall be discretionary with the disciplinary counsel where the offense for which the attorney has been convicted carries a period of incarceration of one year or less."
"[I]nterpretation of the meaning of the rules of practice [are] governed by the same principles as those governing statutory interpretation. State v. Pare, 253 Conn. 611, 622, 755 A.2d 180 (2000) (principles of statutory construction apply with equal force to Practice Book rules). The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule." (Citations omitted; internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 61, 818 A.2d 14 (2003).
"In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute." (Internal quotation marks omitted.) Id., 61-62.
"This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning." (Internal quotation marks omitted.) Id., 62. "Furthermore, when a statute does not define a term . . . [w]e . . . look to the common understanding of the term as expressed in the dictionary." (Internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Department of Public Utility Control, 270 Conn. 778, 798, 855 A.2d 174 (2004).
The court first must consider whether 26 U.S.C. § 7203 is a serious crime as defined in § 2-41 of the Practice Book. Section 2-41 defines a serious crime as "any felony or any larceny as defined in the jurisdiction in which the attorney was convicted or any crime for which the attorney was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed." Taking § 2-41(c) as a whole, it is apparent that the section separates the definition of a serious crime into three categories: any felony, any larceny, or any crime for which the attorney was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed. The petitioner alleges in its pleadings that the respondent violated 26 U.S.C. § 7203, a federal misdemeanor, for his wilful failure to pay his taxes. Further, 26 U.S.C. § 7203 is not defined nor alluded to as a crime of larceny in the statute itself nor in any case law. Therefore, in the present case, the respondent has been convicted in the federal jurisdiction of a misdemeanor that is not defined as a larceny, and this does not fall into either of the first two categories.
Now, however, the inquiry must settle upon the third category, "or any crime for which the attorney was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed." The dictionary definition of the word "any" is, "one or some, regardless of kind, quantity, or number." The American Heritage Dictionary (2d Ed. 1985). By the dictionary definition of word "any," it becomes apparent that "any crime" means a crime regardless of kind. Within these parameters, it is clear that the term "any crime" may encompass misdemeanors for which the respondent was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed.
The court must review whether the respondent's sentence imposed by the federal court falls within the definition of a "suspended period of incarceration" as set forth in § 2-41. The petitioner argues that the respondent's sentence of probation is equivalent to a suspended sentence of incarceration and probation imposed in state court. In the commission comments (1971) to General Statutes § 53a-28, the section delineating authorized sentences in Connecticut, it is made clear that "when a court imposes a sentence of probation or conditional discharge it must first impose a sentence of imprisonment with execution suspended (entirely or partially)." This proposition, however, is not true in the federal sentencing context. "[P]rior to the implementation of the federal sentencing guidelines, a court could stay the imposition or execution of [a] sentence and place a respondent on probation . . . However, [t]he statutory authority to `suspend' the imposition or execution of [a] sentence in order to impose a term of probation was abolished upon implementation of the sentencing guidelines. Instead, the Sentencing Reform Act recognized probation as a sentence in itself." (Citations omitted; internal quotation marks omitted.) U.S. v. Pollard, 389 F.3d 101, 105 (4th Cir. 2004).
Practice Book § 2-41(c) explicitly states that a serious crime shall be construed "as defined in the jurisdiction in which the attorney was convicted . . ." Under the plain meaning of § 2-41, the definitions of what a serious crime may entail must be construed through the definitions in the federal jurisdiction. In the present case, the respondent was sentenced to four years probation with six months of the sentence to be spent in home confinement. In light of the holding of U.S. v. Pollard, the federal sentencing of probation is in itself a sentence and does not include an underlying suspended sentence of incarceration. Therefore, under § 2-41(c), the provision stating that "any crime for which the attorney was sentenced to a term of incarceration or for which a suspended period of incarceration was imposed," does not include a federal sentence of probation. Consequently, the court finds that the respondent's conviction of a federal misdemeanor, in which he was sentenced to four years probation with six months of the sentence to be spent at home, does not fit the definition of a "serious crime" as set forth in Practice Book § 2-41(c).
The petitioner further argues that the 2004 commentary to § 2-41 states that § 2-41 incorporates within the definition of "serious crime" the same crimes that trigger disciplinary action of in-state attorneys pursuant to § 2-40. The petitioner argues that pursuant to General Statutes § 53a-28, as discussed above, a sentence of probation may be imposed only where there is a suspended sentence of incarceration, and therefore, under § 2-40, any sentence of probation would include a suspended sentence of incarceration, thereby invoking § 2-40 to endow the petitioner with the power to bring a presentment against an attorney that has been convicted of a crime and sentenced to probation. As such, the petitioner argues, relying on the § 2-41 commentary, that the respondent's conviction and sentence of probation would qualify as a crime subject to discipline under § 2-40 and, consequently, should also qualify as a serious crime under the definition of § 2-41(c).
The petitioner's argument — that the definition of "serious crime" under § 2-41(c) encompasses exactly the same offenses that could trigger discipline pursuant to § 2-40 — is not supported by the language of the provision. Specifically, the first sentence of § 2-41(c) includes within the definition of "serious crime" those crimes that are defined as felonies or larcenies "in the jurisdiction in which the attorney was convicted . . ." Thus, contrary to the petitioner's assertion, an attorney's conviction in another jurisdiction of a crime that would constitute a larceny or felony under Connecticut law, but is not defined as such in the convicting jurisdiction, does not come within the § 2-41(c) definition of "serious crime." Although the drafters may have had a general intent to create symmetry between §§ 2-40 and 2-41, they chose not to make the provisions' respective scopes identical. Accordingly, the court cannot accept the petitioner's contention that the clear legislative intent behind § 2-41 requires the court to interpret the plain language of the phrase "for which a suspended period of incarceration was imposed" as meaning "for which probation was imposed."
The petitioner also argues that the passage in § 2-41(e), which states that, `[t]he filing of a presentment shall be discretionary with the disciplinary counsel where the offense for which the attorney has been convicted carries a period of incarceration of one year or less," allows the petitioner to bring a presentment at its discretion and should encompass the facts of the present case.
"[T]he legislature is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction . . . In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result." (Internal quotation marks omitted.) Piersa v. Phoenix Insurance Co., CT Page 3411 82 Conn.App. 752, 762, 848 A.2d 485 (2004).
The court finds that § 2-41(e) must be read in conjunction with § 2-41(a) and (c). Subsection (a) provides, "[a]n attorney shall send to the, disciplinary counsel written notice of his or her conviction in any court of the United States . . . of a serious crime . . ." Subsection (c) defines what a serious crime is, as discussed above. Subsection (e) provides in relevant part: "Upon receipt of the certified copy of the judgment of conviction, the disciplinary counsel shall file a presentment against the attorney with the superior court for the judicial district wherein the attorney maintains an office for the practice of law in this state, except that, if the attorney has no such office, the disciplinary counsel shall file it with the superior court for the judicial district of Hartford. The filing of a presentment shall be discretionary with the disciplinary counsel where the offense for which the attorney has been convicted carries a period of incarceration of one year or less." (Emphasis added.) Practice Book § 2-41(e). Thus, when read in context, the language of § 2-41(e) indicates that the disciplinary counsel must file a presentment in cases where the offense carries a period of incarceration of more than one year, but may exercise discretion in determining whether to file a presentment in those cases where the offense carries a period of incarceration of one year or less. In any event when read in the context of § 2-41 as a whole, subsection (e) is applicable to situations where the disciplinary counsel has received a copy of the judgment of conviction of a "serious crime" as defined in subsection (c). In subsection (e), the term "offense," when read together with Subsection (a) and (c), must be construed as being a serious crime for which the attorney has been convicted. It would be contrary to the plain meaning the language of § 2-41 and the principles of statutory construction to find that the term "offense" is something other than what has been defined in subsection (c).
The court finds that § 2-41(e) does not refer to just any "offense" that carries an incarceration period of one year or less, but refers to what has been defined in subsection (c) as being a serious crime as construed in the federal jurisdictional context. As such, in the present, § 2-41(e) does not grant discretion to the petitioner to bring a presentment against the respondent for violation 26 U.S.C. § 7203 because it has been determined that a conviction under 26 U.S.C. § 7203 coupled with a sentence for probation alone, does not fit the definition of a serious crime under subsection (c) of § 2-41.
The petitioner also argues that public policy of protecting the court system from unfit attorneys should be considered when interpreting what the Practice Book sets out in § 2-41. The petitioner may wish to suggest an amendment to the Rules of Court which would authorize the Superior Court to have jurisdiction in a similar situation. However, as stated by our Appellate Court "[i]t is a basic tenet of statutory construction that we rely on the intent of the legislature as that intent has been expressed . . . Indeed, to rely on the absence of legislative history . . . would turn the process of statutory construction on its head. More importantly, we would be exceeding our constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments." (Internal quotation marks omitted.) State v. Acker, 81 Conn.App. 141, 146-47, 838 A.2d 1016 (2004).
Accordingly, the court must rely on the plain meaning of the language as clearly expressed in the Practice Book, and follow its allowances. To rely on and interpret into the Practice Book what is not expressed would contravene the drafters' intent and ill serve the process of statutory construction.
P.A. 03-154
AN ACT CONCERNING STATUTORY INTERPRETATION.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. (NEW) (Effective October 1, 2003) 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, extratextual evidence of the meaning of the statute shall not be considered.
Conclusion
For the foregoing reasons, and upon the foregoing authorities, the respondent's Motion to Dismiss must be and hereby is granted.
Clarance J. Jones, Judge