New Haven Independent

Over a 2 1/2 hour long hearing, Superior Court Judge Lynda B. Munro, who oversees one of four “complex litigation” parts in the courthouse, dealt with a diverse set of legal issues: The Massey’s motion to disqualify the town’s counsel, the Marcus Law Firm because Edward Marcus will be called as a witness; the effort by Howd & Ludorf of Hartford, the firm that has handled the case from the outset, to withdraw from the case; and the personal relationship between Michael Milici, a defendant in the case, and Trista Clyne, the chief assistant to the First Selectman and the keeper of public records in this case.
David Doyle, of the Marcus Law Firm, renewed the town’s summary judgment issue that the Masseys were barred by law, specifically the statute of limitations, from challenging the validity of the 2002 and 2003 grand lists. In the past, the judge has denied the town’s motion.
The Masseys are acting as their own attorneys, or “pro se” litigants. She is an accounting professor at Fairfield University and he is a firefighter. Although she is not a lawyer, Mrs. Massey has read widely, citing cases and making points that have not gone unnoticed by the judge.
For example, Mrs. Massey argued Tuesday that the statute of limitations on tax appeals —four months—is automatically suspended if the town’s tax officials engaged in “fraudulent concealment”. She cited a 1936 Connecticut case that says while a town’s grand list may be validated despite minor irregularities it may be invalidated when there is a “major error in methodology” that works a “general substantial injustice” to taxpayers as a whole.
Massey’s lawsuit says there were no written criteria or guidelines to justify “custom” as an architectural classification. Before Vision Appraisal Inc., the town’s revaluation company arrival, the assessor’s office classified a house into one of 12 categories, for example as a ranch, colonial, contemporary or multi-family.
With the approval of Barbara Neal, the town assessor, the word “custom” was added. It had never before been used and it was applied to some 250 houses either previously classified in other categories or newly constructed. Massey’s was new. The custom designation increased dramatically the tax cost per square foot of the house and does so for the life of the house. It was Milici who inspected the Massey home, only the outside, Massey says, and labeled it “custom.”
The Masseys also assert that state laws were violated because a number of the town officials who signed the Branford grand lists did not have the state certification to do so. Massey as well as other litigants say the tax system is fundamentally flawed. She and others say they were excessively and wrongfully assessed both in the town’s use of a custom classification and in the new use of a “view” tax along the seashore.
If the Masseys are successful, the judge could invalidate the town’s grand lists. The 2002 list is particularly crucial because it set the bar for the tax years that follow. The 2002 tax list produced hundreds of lawsuits, in part because Vision Appraisal refused to disclose their internal formulas, saying they were “proprietary.” Nor did the town define “custom,” a category it decided to apply to many houses built before the category even existed.
One Branford house that was not designated “custom” and was not subject to a “view” tax is owned by Ed Marcus. In court papers, Mrs. Massey produced an advertisement for its sale last year. Listed at $1.9 million the architect designed 4,643 square foot home with “vaulted ceilings” and “magnificent views of Vilnes Pond,” is described as a paradise in Stony Creek, located on a 4.25 acre gated estate. This architectural beauty holds the style classification of “contemporary,” not “custom.”
In 2002 when property taxes in Branford soared, the Marcus property was assessed at a mere $359,600 and its actual property tax, according to the Multiple Listings Service, was $7,540 a year, court papers show. The Massey lawsuit asserts that a “favored few” received special tax breaks while others did not, a system that if true would indicate corruption, the court papers say.
Mrs. Massey plans to call Mr. Marcus to the stand. But as both a Branford taxpayer and Branford town attorney, he may face real trouble under rules 3.7 and 1.7. of the Rules of Professional Conduct governing attorneys, Massey’s court papers say. Rule 3.7 says a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. Rule 1.7 makes it clear that a lawyer shall not represent a client, in this case the town of Branford, if the lawyer has responsibilities “…to a third person” or is effected “by the lawyer’s own interests.”
Judge Munro discussed these issues and voiced concern. What if the grand list were thrown out, and there is a new reval or a new grand list, she asked. If that happened, then Marcus’s interests as a lawyer and as a homeowner “might be adverse,” she said. Doyle responded: “I’m sure the town could sign a waiver.” The judge told him to get one. Then came the question of how it would appear if Shelley Marcus, who has represented the firm in this case, were to wind up having to cross-examine her father when he takes the stand?
As Massey seeks to disqualify the Marcus law firm, Howd & Ludorf wants to withdraw because the town’s insurance company will no longer pay the firm’s legal fees. The company, not the town, made that decision after Judge Munro ruled in April in favor of the Masseys on certain counts. Why an insurance company should be able to decide what counts it will pay for and what ones it won’t was raised in court but not resolved.
Massey wants the Howd & Ludorf firm to stay on, even if it means the town has to pay their legal fees. The problem the plaintiffs face is if both law firms are removed, then a third one would need time to prepare and Massey would lose her July 10th trial date. As an academic on summer leave, she wants the case to get underway July 10th. So does the judge, who said her calendar was booked for the next three years.
The Masseys want a jury trial and while that might be unusual the judge noted that the court had found an 1829 Connecticut Supreme Court case that permitted a jury trial in a case concerning an illegal grand list. She asked both sides to brief the jury issue by today.
As for the relationship between Milici and Clyne, court filings show each is now divorced from their former spouse. Milici’s divorce was discussed in court. Milici, the East Haven assessor, has been a part-time contractual assessor for Branford and a former member of the Branford Board of Assessments and Appeals, positions he somehow managed to hold simultaneously perhaps in violation of state law, court papers say. Clyne is currently the top administrative assistant to First Selectwoman Cheryl Morris, a position she held for Morris’s predecessors, Republican John Opie and Democrat Anthony Unk DaRos.
The town’s counsel wants Clyne’s private life to remain private. Dawn Massey wants to question her about her relationship with Milici and its impact on the Massey’s ability to obtain town documents after their lawsuit began in 2004. The court has permitted Massey some leeway to do so. Efforts to settle the case have so far failed.