ARTHUR C. HADDEN, Judge.
On February 25, 2008, the defendant, while operating a motor vehicle, was involved in an accident which resulted in the death of a pedestrian. As a consequence of this accident the defendant was arrested and prosecuted. Upon the entry of a plea of Nolo Contendere, the defendant was found guilty of Negligent Homicide with a Motor Vehicle, in violation of Section 14-222a of the Connecticut General Statutes and sentenced to six months in jail, execution suspended, one year of probation with a five hundred dollar fine and one hundred hours of community service. Subsequently, the Chief Disciplinary Counsel, pursuant to Section 2-40 of the Connecticut Practice Book, filed the present action seeking disciplinary sanctions against the defendant. The defendant has filed a Motion to Dismiss the action, claiming in essence that the Chief Disciplinary Counsel lacks authority to bring this action since the defendant has not been convicted of a "serious crime" as required by Section 2-40 of the Connecticut Practice Book.
The defendant's Motion to Dismiss has been filed pursuant to section 10-31(a)(1) of the Connecticut Practice Book, which reads as follows: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. Blumenthal v. Barnes, 261 Conn. 434, 442 (2002); Bailey v. Medical Examining Board, 75 Conn.App. 215, 219 (2003). A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. See Castro v. Viera, 207 Conn. 420, 429 (1988). Our Supreme Court has determined that when ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without CT Page 8166 jurisdiction. Tooley v. Metro-North Commuter Railroad, Co., 58 Conn.App. 485, 491 (2000).
The relevant portion of Section 2-40 of the Connecticut Practice Book reads as follows:
The clerk of the Superior Court location in this state in which an attorney is convicted of a serious crime as defined herein shall transmit, immediately upon the imposition of sentence, a certificate of the conviction to the disciplinary counsel . . . The disciplinary counsel or designee shall, pursuant to Section 2-47, file a presentment against the attorney predicated upon the conviction . . . The term `conviction' as used herein refers to the disposition of any charge of a serious crime as hereinafter defined resulting from a plea of . . . nolo contendere . . .
The term `serious crime' as used herein shall mean any felony or any larceny or any crime for which the attorney was sentenced to a term of incarceration of for which a suspended period of incarceration was imposed.
The defendant in this case entered a plea of nolo contendere to the charge of Negligent Homicide with a Motor Vehicle. Neither party claims that this charge constitutes a felony or a larceny. It is also uncontested that a suspended period of incarceration was imposed in the present case. The issue, therefore, is whether or not the charge of Negligent Homicide with a Motor Vehicle constitutes a crime, as that term is used in Section 2-40 of the Connecticut Practice Book.
The defendant argues that Negligent Homicide with a Motor Vehicle is not a crime. In support of this argument the defense cites the Connecticut Appellate Court decision in State of Connecticut v. Kluttz, 9 Conn.App. 686 (1987). In that case the court wrote:
[N]egligent Homicide with a Motor Vehicle is a motor vehicle violation within the meaning of General Statutes Section 53a-24 and therefore is not an offense or crime within the meaning of that statute.
Id. at page 690.
Given this ruling by the Appellate Court, the defense argues that there CT Page 8167 has been no conviction of a serious crime; the disciplinary counsel is not authorized to file a presentment; and, therefore, the court lacks jurisdiction.
The disciplinary counsel counters this argument by asserting that it is not sufficient for the court to consider only the categorization of the charge of Negligent Homicide with a Motor Vehicle as a motor vehicle violation rather than a crime. The disciplinary counsel argues that the court must examine the function and purpose of the relevant statutes and practice book sections before determining the issue of jurisdiction. In support of this position the disciplinary counsel cites the Connecticut Supreme Court decision in State of Connecticut v. Harrison, which held:
"What may or may not be a criminal offense for purposes of a particular statutory categorization is not necessarily determinative of whether or not it is a criminal offense for other purposes. We do not mechanically apply penal code definitions to a statute but interpret the language in a manner that implements the statute's purpose."
State of Connecticut v. Harrison, 228 Conn. 758, 763 (1994).
In further support of this argument the disciplinary counsel cites the Appellate Court case of State of Connecticut v. Brown, 22 Conn.App. 108, 112-13 (1990) in which the court concluded: "For the purposes of Connecticut General Statutes Section 53a-24a, Section 14-227a is a motor vehicle violation and not a crime; however for the purposes of the defendant's condition of probation, it is a violation of the criminal laws of this state based on the function and purpose of probation." Other cases where Connecticut courts have considered the function and purpose of the statute in defining a crime or offense include: State v. Trahan, 45 Conn.App. 722 (1997); and State v. Dukes, 209 Conn. 98 (1988).
This court agrees that the categorization of the charge of Negligent Homicide with a Motor Vehicle as a motor vehicle violation in certain decisions of the Connecticut courts does not dictate that the charge is not a crime for purposes of Section 2-40 of the Connecticut Practice Book. The court must consider the function and purpose of that provision. In its decision in Statewide Grievance Committee v. Spirer, 247 Conn. 762, 771-2 (1999) the Connecticut Supreme Court wrote:
Attorney disciplinary proceedings are for the purpose of preserving the courts of justice from the official ministrations of persons unfit to practice them.
Statewide Grievance Committee v. Shluger, 230 Conn. 668, CT Page 8168 674 (1994), quoting
Ex parte Wall, 107 U.S. 265, 288 (1883);
Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238 (1989). An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited.
In re Peck, 88 Conn. 447 (1914). Therefore, if a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession . . .
Statewide Grievance Committee v. Botwick, 226 Conn. 299, 307 (1993). (Internal quotation marks omitted.)
Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55 (1995).
Since the function of an attorney disciplinary proceeding is to safeguard the judicial system from those who are unfit to perform the duties of the legal profession, the question in this case becomes, does a conviction of Negligent Homicide with a Motor Vehicle indicate that one is unfit to practice law? The relevant portion of Section 14-222a of the Connecticut General Statutes reads as follows:
. . . any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.
This statute is unique in that it exposes one to a possible jail sentence for an act of simple negligence. It is impossible of the court to believe that an act of simple negligence should subject an attorney to the sanctions provided for in Section 2-40 et seq. of the Connecticut Practice Book. Given the purpose and function of CT Page 8169 those sections, the court finds that a conviction of the charge of Negligent Homicide with a Motor Vehicle is not a serious crime as defined in Section 2-40. This court, therefore, lacks jurisdiction in the present case.
The Motion to Dismiss is granted.
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