New Haven Independent

The case began in 2004, when the Masseys filed suit against the town challenging their property tax assessment. They said their house was wrongly designated as “custom.” The case eventually challenged the 2002, 2003 and 2004 property tax lists, called grand lists, the record of all taxable and tax-exempt property in a town. It also challenged the certification of the town assessor and the Board of Assessors.

Since then, the Massey case has taken on a life of its own. It has been heard in five different courts up and down the state. It has involved seven different law firms and roughly a dozen outside and inside town lawyers.

Finally it looked as if the case was over. On June 10 Town Counsel William H. Clendenen Jr., received word that the town had won the Massey case at the appellate court. That meant that the state’s second highest court sided with the town’s position that the Masseys had in fact agreed to settle the case on July 3, 2006.

Clendenen was delighted. He quickly sent the eight-page written opinion to First Selectman Unk DaRos. The decision was 3-0.

So happy were the town’s attorneys, that they eagerly notified the state Freedom Of Information Commission ombudsmen on June 11 that Mrs. Massey had lost her appeal, which was cited “as the impetus for numerous FOI requests,” including three pending cases. Patrick D. Allen, an attorney at the firm, acted before Mrs. Massey even filed her papers to vacate the court decision.

But the town’s win and Clendenen’s optimism were short-lived.

Mrs. Massey, an accounting professor who has shown herself to be unusually adept at the law, immediately dashed off a brief asking the appellate court to reconsider and vacate their decision.Clendenen opposed her motion.

Then in a stunning turn of events some 15 days later, the state appellate court did exactly what Mrs. Massey asked them to do. They vacated the decision. While the court did not state why (it is not required to), Chief Judge Joseph P. Flynn acted so swiftly to set up new arguments that he surprised many legal experts in the state.

According to appellate court experts, Mrs. Massey needed to present an argument compelling enough to set aside the court’s prior decision. She argued two main points. The first was that the judges ignored the trial and appeals record. The second was that the panel of judges that heard the case was not the same panel that decided it.

“A substitute judge was put on the panel after the oral argument without the plaintiff’s knowledge, consent, approval and/or waiver,” she wrote in her brief. David Borden, a former sitting Connecticut Supreme Court justice, was substituted for Judge Antoinette L. Dupont, whose husband died while the case was pending.

Chief Judge Flynn set two sets of oral arguments for Sept. 22. The first centers on the case the appellate court just reversed. The second centers on the validity of the 2005, 2006 and 2007 grand lists. The town won this case at the Superior Court level. The Masseys appealed, and now both cases will be heard on the same day. (The Masseys also have filed notice they intend to challenge the 2008 grand list.)

The chief defendants in the Massey cases are Barbara Neal, the town assessor, and Michael Milici, a former independent contractor-assessor for the town and the current assessor of East Haven.

This new round of appellate court activity means that the town faces another round of legal briefs, legal arguments and overall legal fees on the second case. So far the town has spent in excess of $200,000 on the Massey case, exclusive of the amount originally covered by the town’s insurer, according to town records.

Clendenen & Shea became the town counsel soon after DaRos took office in November, 2007. According to the latest figures available, Clendenen & Shea charged the town roughly $63,000 from January 2008 to April ‘09 for the Massey case. This includes $21,052 to research and write their first appellate brief and $9,772 to argue the case on January 7.

In addition, a second law firm Ullman & Perlmutter of New Haven, was brought on to handle one of the Massey cases. This firm collected $5,513.14 from February 2008 through last month.

In an interview, Clendenen said that $200,000-plus for legal fees over the years is “an outrageous amount.”

But he said he did not think a settlement would happen at this time.

“It is an impossibility,” he said.

He said he had not tried to formally settle the case. From Clendenen’s point of view, the settlement arrived at on July 3, 2006, and upheld at the Superior Court level should be enforced, just as the appellate court enforced it before the decision was vacated.

“It was done in good faith and at arm’s length. The case has been settled. And the town is entitled to the benefit of that settlement. That is the town’s position. What Massey is trying to do is undo a settled case.”

But Clendenen also said that while he was not inclined to sit down with the Masseys, the final decision was DaRos’s. “He is the boss,” he said, meaning he is the client.

In a subsequent interview with DaRos, the first selectman observed that the Massey case, with its ins and outs, ups and downs and multiple filings over the years, was confusing. He said he viewed it primarily as a property tax case; but in fact the last three years of legal conflict have centered on DaRos’s chief assistant, Trista Clyne Milici.

She has served five first selectmen, beginning in May, 1995 when Judy Gott was First Selectman. She continued through the term of Dominic Buonocore, then DaRos, who served six years from 1997 to 2003, then through the administrations of John Opie, Cheryl Morris and most recently DaRos again. The Massey case tracks the latter administrations. Her office is a few feet away from his.

The Masseys say in court papers that Clyne transferred her allegiance from the town to Milici when the two began dating in December, 2005. They subsequently married. She has served as the administration’s gatekeeper for freedom of information requests.

As a result, they say Clyne failed to provide documents in a timely way that would help identify the houses Milici assessed for the town, including houses he himself owned.

Clyne derailed the settlement efforts in 2006 when she refused to sign a standard release form that is designed to preclude future litigation evolving from a current lawsuit.

Even though she is employed by the town, lawyers have said she cannot be forced to sign a release because she is a non-party to the lawsuit. In their second case to be heard in the appellate court in September, she is a named defendant.

DaRos seemed not to know the full background of Clyne-Milici’s role in the case. He said, “Now it is back in court again. I figured it was over, but it is not.” He said “I want to find out what they are looking for. If we can determine the harm, then I can hope to find a cure.”

He also seemed concerned about the amount of legal expenses the case had generated over the years. He said they were too high.High legal bills in the Founders Village case had prompted him to try to settle that case, an event that formally took place Monday.

In addition to court filings and appearances, Clendenen and DaRos have found themselves defending the town at a number of Freedom of Information Commission hearings in Hartford. Misty Williams, Mrs. Massey’s mother, and her agent has filed about a dozen FOIC complaints over the years, saying Branford has been lax or indifferent in producing town records especially those involving Mr.Milici.

These FOIC hearings have required the time of one or two town attorneys, the testimony of town staff and often the attendance of the first selectman himself.

In the years of litigation the merits of the case have never been fully addressed, specifically whether the town has a disparate property tax system, one based on giving tax breaks to favored residents.

The Masseys also assert the grand lists are invalid because required officials do not sign it and do not act as a body as required by law. This practice appears to continue to this day. The October 1, 2008 grand list, for example, shows that only one member of the three member Board of Assessment Appeals signed the grand list. That was Judith Burke. Joseph Chandler, the chairman, and Daniel Baughman, a second member, did not sign.

At one point in 2006, Judge Lynda B.Munro ruled that there was sufficient evidence to allow the Masseys to try the case on grounds that Branford tax officials were not property certified. That was in April 2006.

But three months later, on the eve of trial, former town counsel Shelley Marcus approached the Masseys seeking settlement. On July 3, 2006. Marcus came as close as any lawyer has in achieving that end. But her settlement, which the trial judge accepted after a full hearing, was also short-lived.

Massey signed off on the major parts of the case with other details, including the legal releases, left to be done. From her point of view the settlement was still in progress because without releases, including one from Trista Clyne, there was no settlement. When the town insisted the case was settled, the Masseys began a legal challenge that continues to this day. Meanwhile, no releases have been signed.

The case began as a property tax assessment dispute in 2004 when the Masseys asserted their new home on Stony Creek Road was wrongly assessed by Milici. In addition to serving as part-time assessor, Milici was also a former chair of the Branford Democratic Party. He also played a key role in the 2006 political vendetta that centered on granite stored at DaRos’ s masonry business in Stony Creek. In town life, Milici served as a member of the Board of Assesment Appeals during a period when he worked as a part-time assessor.

The Masseys say Milici wrongly placed their new house in the category of “custom,” a designation created by the town’s outside commercial appraiser, Vision Appraisal, Inc.

Vision applied the custom category to some 250 homes in Branford in prior revaluations even though the category did not exist when many of these homes were built. If your home was a “custom” home, then your tax rate was $115 a square foot as opposed to $68 and that fee remained more or less constant for the life of the house.

Neal approved the category even though there was no definition of custom. Efforts to get the category dropped have failed in the past. The town’s current 2009 revaluation, also conducted by Vision Appraisal, is now underway and it is believed the custom category remains in place—despite the litigation that the town has faced from the Masseys and others.

The remaining part of the July 2006 Massey settlement included among other items changing the category of their home from custom to colonial, refunding tax over-payments plus interest of ten percent and agreeing to settlement costs of $3,000.

Over the last three years, Mrs Massey said there was one brief effort to discuss settlement.

“To my knowledge, settling our cases was raised just once under Attorney Clendenen’s regime. It was on December 17, 2007 right before we were entering court . Attorney Kevin Shea (Clendenen’s partner) approached me in the hallway of the New Haven courthouse and in a matter of 30 seconds introduced himself and said he could get Trista to sign a release if we would agree to all the prior terms. When I asked about additional settlement costs in light of the additional 18 months of expenses, Attorney Shea said ‘no,’ and we walked into the courtroom. ” That ended that.

So the case continued. And it will continue to continue unless DaRos steps in. DaRos said he had no doubt “in my mind that we can talk. I knew her father real well,” he said.

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