Josephine Smalls Miller (Krista Hicks Benson)
A federal judge has sanctioned a civil rights attorney for alleging in a discrimination lawsuit that the Bridgeport Board of Education will not hire any private practice African-American attorneys to handle its cases, including her.
U.S. District Judge Jeffrey Meyer has ordered Josephine Miller, of Danbury, to pay a $1,500 penalty. At the same time, he dismissed the lawsuit and referred the matter for disciplinary review to the Connecticut Statewide Bar Counsel.
The judge rejected the Bridgeport Board of Education’s request for $21,450 in attorney fees and costs.
“From what I can tell, attorney Miller is fervently devoted to a noble objective of redressing discrimination,” Meyer wrote. “But no fervor for one’s case may justify false statement. My hope is that with time attorney Miller will appreciate the limits that truth and the rules of professional conduct impose for all cases upon the zealous advocacy of counsel.”
According to the opinion, Miller knew that two African-American attorneys performed legal services for Bridgeport when she made the discrimination claim. The matter started when Miller became upset that Bridgeport City Attorney Mark Anastasi had paid a white private practice attorney who formerly provided representation for a certain client, but had refused to pay Miller, who is an African American, for her work for the same client.
The judge said he ordered $1,500 in sanctions as a deterrent to “others who would fabricate key factual allegations.” But Meyer said that he did not order greater sanctions because Miller is a solo practitioner and he is not aware that “she is possessed of great wealth or resources.”
Miller, who is perhaps best known in Bridgeport for did not respond to a request for comment. Bridgeport Associate City Attorney Betsy Edwards said in an emailed comment: “It is a serious thing to be accused of racial discrimination, particularly when the accusations are, as Judge Meyer found in his ruling, knowingly, intentionally, and sweepingly false. The defendants are vindicated and gratified that the court recognized the demonstrable falsity of these allegations, and took appropriate action to remedy the damage they caused.”
Two African-American attorneys—Errol Skyers and Michel Bayonne—attested in affidavits that Miller knew they provided legal services for the Board of Education. Skyers, who is employed by the Bridgeport City Attorney’s Office, was opposing counsel in a case Miller was involved in that reached a jury verdict in October 2013.
Bayonne, who is a director at Bridgeport-based Durant, Nichols, Houston, Hodgson & Cortese-Costa, and Miller were opposing counsel in at least seven cases in which Miller represented plaintiffs and Bayonne’s law firm was retained to represent the Board of Education or its employees. According to court papers, Miller also would have gleaned from her Freedom of Information Act requests that Bayonne billed $84,000 for board of education cases.
Miller, rather than backing down on her allegations of racial bias, argued that the two black attorneys were “token.” She further argued she was not similarly situated to them because Skyers is a city employee and Bayonne belongs to a law firm that is not owned by an African American.
While Miller has a long history of representing plaintiffs suing various parts of the Bridgeport government, the current controversy of Miller’s own lawsuit against the city started with unpaid legal bills from her representation of Andrew Cimmino, a former Bridgeport elementary school teacher who was fired following sexual abuse allegations.
Cimmino claims the allegations were fabricated by two school employees, and he has pursued civil claims against the employees and the school district.
Miller defended Cimmino in a sexual harassment and constitutional-rights lawsuit the school employees brought against the Bridgeport Board of Education, the city and Cimmino. As a former public employee, Cimmino was entitled to have his legal defense paid for by the board of education.
Miller was of the view that her invoices for work on Cimmino’s case went unpaid because of racial discrimination.
U.S. District Judge Vanessa Bryant ruled last summer that Miller’s first complaint insufficiently alleged that “racial animus was the reason that defendants did not pay Attorney Miller’s bills.” The fact that Cimmino’s first attorney was white and Miller is African American was not enough to establish that race was why Miller’s legal bills were not paid, Bryant concluded, and “there is no allegation … that the city of Bridgeport or the Board acted pursuant to a policy, custom, or practice of racially discrimination against African Americans in the making or enforcement of contracts, or pursuant to a policy of not paying African American attorneys for their services.”
Miller then amended her complaint. In the second iteration, she said that the board of education had a policy of engaging only non-African American attorneys to perform legal services and that no African-American attorneys performed legal services.
That time, Bryant ruled that Miller’s claims of racial discrimination regarding payment for her representation of Cimmino could survive a motion to dismiss. But the judge seemed to express some skepticism about the complaint, writing Miller “faintly alleged” her conspiracy claim and the new allegations put her amended complaint “just above the pleading standard bar.”
After Bryant rejected Bridgeport’s motion to dismiss Miller’s amended complaint, the city moved under Federal Rule of Civil Procedure 11 to sanction Miller for pleading facts she knew were false. Sanctions may not be imposed unless allegations are “‘utterly lacking in support,’” Meyer said.
Even though Miller was given the opportunity to withdraw the allegations, Miller wrote “‘I do not intend to withdraw any pleading. Your attempt to engage in the characteristic economic terrorism is to no avail,’” according to the opinion.
Meyer, who took over the case from Bryant shortly after joining the bench, wrote that Miller knew after the dismissal of her first complaint she had to make allegations that she was “not merely … a victim of a routine billing dispute” and “that any inference of discrimination would be far less potent—or well-nigh non-existent at all-if she conceded [as she knew] that the defendants regularly engaged the services of at least two African-American attorneys.” •