And while the Probate courts are stuck on Strunk–a decision that says a Guardian can limit the ward from dangerous persons and has descretion in the matter, and which is always cited when the Guardian or GAL wan to isolate and drain in those funny business cases (read Sykes, Gore, etc.) comes a much more reasoned decision from the 2nd circuit court of appeals.
The case is very interesting for those of you out there (Barbara Stone, Dom Spera, etc. who cannot see or are limited from seeing a loved one) and it helps court abuse victims like Roseanna Miller who wants a habeus corpus.
http://scholar.google.com/scholar_case?case=6066286202479918547&q=%22Gross+v+Rell%22&hl=en&as_sdt=4,75,99,107,122,138,162,286,287,288,289,349,350,351,352,380
Good case quotes:
For nearly a year beginning in 2005, Daniel Gross, an octogenarian, had a conservatorship imposed for his estate and person against his will. He was kept in a nursing home for ten months, until a Superior Court judge in Connecticut, citing “a terrible miscarriage of justice,” granted his petition for a writ of habeas corpus and ordered him released. This lawsuit stems from that unfortunate series of events.
It is alleged that a probate court judge signed a facially impossible order that did not comply with the law; the court-appointed attorney disregarded Gross’s wishes to return to his home in New York; the court-appointed conservator forcibly kept Gross in a nursing home, against medical advice; and a nursing home housed Gross with a violent roommate who attacked him. The complaint further alleges that defendant Maggie Ewald, Connecticut’s Long-Term Care Ombudsman at the time, did not act on complaints about Gross’s treatment at the nursing home because of concerns about adverse publicity.
These allegations, if true, might make out a case against the defendants. However, Judge Thomas P. Brunnock, Conservator Kathleen Donovan, Attorney Jonathan Newman, and Grove Manor Nursing Home, Inc. (“Grove Manor”) have asserted absolute immunity to suit: Brunnock has asserted judicial immunity and the other three have asserted quasi-judicial immunity. The District Court agreed and dismissed all claims against those defendants.
The federal common law defense of quasi-judicial immunity applies to Gross’s federal claims, and the similar but distinct state common law defense of quasi-judicial immunity applies to Gross’s state law claims. Connecticut state law is unsettled as to quasi-judicial immunity. Therefore, we certify questions to the Connecticut Supreme Court on the state law claims.
On the federal law claims, we apply the multi-factor test for quasi-judicial immunity set forth by the Supreme Court. However, in this case, application of those factors involves unsettled questions of Connecticut state statutory and common law. Therefore, we ask the Connecticut Supreme Court for its guidance as to these factors. Upon receiving its response, we will decide the federal claims.
Quasi-judicial immunity applies only to Donovan, Newman, and Grove Manor. We affirm the grant of judicial immunity as to Brunnock
The pertinent statute requires the probate court, as a threshold matter, to give the respondent seven days’ notice in any application for an involuntary conservatorship. CONN. GEN.STAT. ANN. § 45a-649(a).[2] In addition, the notice must be served on the respondent or, if doing so “would be detrimental to the health or welfare of the respondent,” his attorney. Id. § 45a-649 (a)(1)(A). The statute makes no provision for giving notice to the respondent other than by personal service or service upon his attorney.
On August 25, 2005, Judge Thomas P. Brunnock issued an order of notice of a hearing to be held on September 1, 2005, in connection with Limauro’s application. On August 30, 2005, the notice was served on Limauro. However, as the Connecticut Superior Court pointed out in the subsequent habeas proceeding, there was no indication that Gross himself ever received notice of the September 1 proceeding. The parties do not dispute that (1) Gross was entitled to notice of the hearing, (2) he should have been given at least seven days’ notice, pursuant to Section 45a-649(a), and (3) the order dated August 25, 2005, specified that Gross should be served by August 24.
A Superior Court judge would later say that Newman’s conclusion that there was no legal basis for objecting to the involuntary conservatorship “completely blows my mind,” that there was “[n]o support for it,” and that “it just defies imagination…. This was counsel for Mr. Gross and it is obvious to me that he grossly under and misrepresented Mr. Gross at the time.” J.A. 115.
On September 1, 2005, Brunnock appointed Kathleen Donovan as conservator to manage Gross’s person and estate. Connecticut state law provides that the probate court must require a probate bond and, “if it deems it necessary for the protection of the respondent, [it may] require a bond of any conservator” as well. CONN. GEN.STAT. ANN. § 45a-650(g). Donovan never posted a bond.
In April of 2006, Gross was on an authorized day visit to Long Island. While there, he experienced chest pains and was admitted to a hospital. According to the complaint, Donovan came to Long Island with an ambulance and insisted that Gross be returned to Connecticut. When the doctor indicated that this was medically unwise, Donovan nonetheless removed Gross from the hospital against his wishes and returned him to the locked ward at Grove Manor.
Gross alleges in his complaint that there was no reason to put him in the locked ward. He further alleges that Ewald, the state ombudsman, and Donovan, the conservator, were aware of these problems but failed to take steps to alleviate them. The parties do not dispute that Donovan obtained from Brunnock ex parte orders limiting Gross’s contact with family and with counsel; Gross claims that there was no evidence suggesting that such contact was harmful to him. We are very troubled 78*78 by one such order in particular. According to Gross’s complaint, this order restricted Gross’s daughter’s ability to visit him: the visits were required to be on-premises, only once per day, for no longer than one hour. Strangely, it also prohibits her from bringing “any recording devices (visual and/or audio) into Grove Manor Nursing Home.” The restrictive nature of the order, and the prohibition on the use of recording devices, gives credence to Gross’s allegation that there was a conspiracy to deprive him of his rights—and potentially, to prevent the exposure of such injustices.
On June 9, 2006, Gross filed a petition for a writ of habeas corpus in Connecticut Superior Court. A hearing was held on July 12. Brunnock moved to dismiss, making the (rather remarkable) argument that habeas relief was unnecessary because, if the Probate Court acted without jurisdiction, the conservatorship was void ab initio and Gross could leave Grove Manor at any time. The Superior Court granted the writ:
[O]ut of an absolute caution that somebody else may come in and file [an] appearance in this case, I’m going to grant the writ of habeas corpus[;] I’m going to find in accordance with the statute that he has—is and has been, since September 1, been deprived of his liberty. And at the time of his—of his appointment of the conservator of both his person and his estate, Probate Court lacked the jurisdiction on the basis that he was not a domiciliary and/or a resident of the [S]tate of Connecticut. The conservatorship is terminated as a result of the decision on the habeas corpus and Mr. Gross is free to leave here today.
Gross is asserting federal and state law claims against state officials. The doctrine of judicial and quasi-judicial immunity is, in the main, a creation of the U.S. Supreme Court with regard to federal claims and thus a federal law doctrine. The cases support employing the federal defense of quasi-judicial immunity as against federal claims. However, Gross had also pled state law claims against state defendants. 80*80 Connecticut has adopted tests for judicial and quasi-judicial immunity that are nearly identical to the federal law tests. However, the state law doctrine is conceptually distinct from the federal law doctrine.
The cases indicate that the federal common law on judicial immunities applies even to state officials when they are sued in federal court on federal claims. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (§ 1983 action against local police officers and judges); Tucker v. Outwater, 118 F.3d 930 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 562, 139 L.Ed.2d 402 (1997) (§ 1983 action against New York town justice). We apply this federal test even when the substantive inquiry involves state law. See Tucker, 118 F.3d at 932
Once again, we look to Connecticut law to determine if conservators and court-appointed attorneys for conservatees are entitled to absolute quasi-judicial immunity, and, if so, under what circumstances. Connecticut law, like federal law, employs a “functional” approach to quasi-judicial immunity. See Carrubba v. Moskowitz, 274 Conn. 533, 542-43, 877 A.2d 773 (2005) (employing a test derived from Butz, 438 U.S. at 513-17, 98 S.Ct. 2894). Carrubba involved state claims (emotional distress and malpractice) against a court-appointed counsel for a minor child. Id. at 536, 877 A.2d 773. The Connecticut Supreme Court noted that Butz involved claims brought under federal law pursuant to § 1983. See id. at 542. However, the Carrubba court did not suggest that the test should be any different when state law claims were at issue, as they were in that case. See id. (stating that it was adopting the Supreme Court’s test for quasi-judicial immunity to determine whether attorneys appointed as counsel for minor children “should be accorded absolute immunity under [Connecticut] state common law”).
Therefore, we certify questions to the Connecticut Supreme Court so that it may decide whether conservators and court-appointed attorneys for conservatees may assert quasi-judicial immunity as to state claims, and the scope of any such immunity, as a matter of state law. The state court’s pronouncement as to those questions will be final.
Even judicial immunity, which provides judges with very broad protection, may be overcome if the judge acts in the clear absence of all jurisdiction or if he is not acting in his judicial capacity. See, e.g., Tucker, 118 F.3d at 933 (citing cases). It may be the case that quasi-judicial immunity may similarly be overcome: for example, if the plaintiff alleges that the actions a defendant took were discretionary (as opposed to in strict compliance with court orders), undertaken in bad faith, intentional torts, etc.
Plaintiff makes several claims against Brunnock, including violation of the Americans with Disabilities Act, conspiracy (per 42 U.S.C. § 1985), violation of due process rights, abuse of process, and negligent and intentional infliction of emotional distress. It is unnecessary to parse the specifics of each claim because the only issue on appeal is immunity. We affirm the grant of judicial immunity as to the judge.
“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (internal quotation marks omitted and emphasis added). The critical question is whether he had jurisdiction. Id. at 356, 98 S.Ct. 1099. However, there is a difference between exceeding jurisdiction and acting in the absence of jurisdiction:
if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.
Here, it is undisputed that Brunnock had the power to adjudicate conservatorship applications. The defect arose out of the erroneous conclusion that Gross was a resident of Connecticut. This erroneous legal conclusion is insufficient to strip the judge of immunity.
For the reasons discussed above, we hold that Brunnock is entitled to judicial immunity on state law claims.
Thus, Brunnock did not act in the clear absence of subject matter jurisdiction, and he was not aware of the defects in personal jurisdiction, making judicial immunity appropriate. We therefore affirm the District Court’s grant of judicial immunity to Brunnock and its dismissal of all claims against him.[8]
Gross pleads several federal and state law claims against the former conservator, Kathleen Donovan: conspiracy pursuant to § 1985, violation of his right to due process, negligent and intentional infliction of emotional distress, breach of fiduciary duty, false arrest and tortious assault, and false imprisonment. The District Court dismissed all of these claims, concluding that Donovan, as a court-appointed conservator acting pursuant to the Probate Court’s order, was entitled to quasi-judicial immunity. The District Court wrote,
Donovan’s argument to extend Judge Brunnock’s judicial immunity to her actions is a simple one as the law is clear and well established. Donovan was acting as an agent of the Probate Court, at the direction and under the supervision of Judge Brunnock. If Judge Brunnock is immune from suit, than [sic] Donovan as conservator acting as his agent or at his direction must be immune.
However, we are not of the view that “the law is clear and well-established.” To the contrary, as we read them, the statutes and case law in Connecticut do not sufficiently enable us to analyze the factors set forth by the Supreme Court in deciding when an individual is entitled to quasi-judicial immunity.
At the outset, we note that Donovan is correct: courts are willing to 88*88 extend absolute judicial immunity to those who “perform functions closely associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). Those who seek this absolute immunity bear the burden of demonstrating that public policy requires such a broad exemption from suit. See id. at 201, 106 S.Ct. 496. The Supreme Court has set forth a “functional” approach to determine whether a particular individual is entitled to quasi-judicial immunity. The factors include
(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.
Indeed, Connecticut law seems to recognize that, in certain circumstances, conservators can be liable for their official actions. First, a probate court is required by statute to require the posting of a probate bond if it appoints a conservator for the estate of a respondent. See CONN. GEN.STAT. ANN. § 45a-650(g). The court also has the ability, in its discretion, if it appoints a conservator of the person, to require the conservator to post a bond “for the protection of the respondent.” Id
For the reasons discussed above, the District Court’s decision is AFFIRMED in part and CERTIFIED in part to the Connecticut Supreme Court. We affirm the grant of judicial immunity as to Brunnock and the dismissal of the claims against Rell and Ewald. We also affirm the dismissal of the emotional distress claims against Grove Manor.
However, because there is no controlling appellate decision, constitutional provision, or statute in Connecticut that explains whether conservators and court-appointed attorneys for conservatees enjoy quasi-judicial immunity, we certify the following questions to the Connecticut Supreme Court:
1. Under Connecticut law, does absolute quasi-judicial immunity extend to conservators appointed by the Connecticut Probate Courts?
2. Under Connecticut law, does absolute quasi-judicial immunity extend to attorneys appointed to represent respondents in conservatorship proceedings or to attorneys appointed to represent Conservatees?
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