Gross v. Rell

304 Conn. 234

40 A.3d 240

Daniel GROSS et al.

v.M. Jodi RELL et al.

No. 18548.

Supreme Court of Connecticut.

Argued Oct. 24, 2011.Decided April 3, 2012.

Sally R. Zanger, Middletown, with whom was Thomas Behrendt, for the appellants (plaintiffs).

Louis B. Blumenfeld, with whom was Lorinda S. Coon, Hartford, for the appellee (defendant Jonathan Newman).

Richard A. Roberts, with whom were James P. Sexton, and, on the brief, Nadine M. Pare and James R. Fiore, Cheshire, for the appellee (defendant Kathleen Donovan).Jeffrey R. Babbin, New Haven, for the appellee (defendant Grove Manor Nursing Home, Inc.).Daniel J. Klau, Hartford, filed a brief for the Connecticut Probate Assembly as amicus curiae.Stacy Canan and Daniel S. Blinn, Rocky Hill, filed a brief for the National Senior Citizens Law Center et al. as amici curiae.Stephen Wizner, New Haven, and Amanda Machin, law student intern, filed a brief for the Jerome N. Frank Legal Services Organization et al. as amici curiae.James G. Felakos, Jane Monteith Hudson, Terri A. Mazur, Jeffrey G. Tougas and Christine A. Walsh filed a brief for the National Disability Rights Network et al. as amici curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

ROGERS, C.J.

This case comes before us upon our acceptance of certified questions of law from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51–199b (d).¹ The certified questions are: (1) Under Connecticut law, does absolute quasi-judicial immunity extend to conservators appointed by the Connecticut Probate Court?; (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?; and (3) What is the role of conservators, court-appointed attorneys for conservatees, and nursing homes in the Connecticut probate court system, in light of the six factors for determining quasi-judicial immunity outlined in Cleavinger v. Saxner, 474 U.S. 193, 201–202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). We conclude that: (1) absolute quasi-judicial immunity extends to a conservator appointed by the Probate Court only when the conservator is executing an order of the Probate Court or the conservator's actions are ratified by the Probate Court; (2) absolute quasi-judicial immunity does not extend to attorneys appointed to represent respondents in conservatorship proceedings or conservatees; and (3) our analysis of the first and second certified questions is responsive to the third certified question as it relates to the roles of conservators and court-appointed attorneys; with respect to nursing homes caring for conservatees, we conclude that their function does not entitle them to quasi-judicial immunity under any circumstances.

The opinion of the United States Court of Appeals for the Second Circuit sets forth the following facts and procedural history. “In 2005, [the named plaintiff] Daniel Gross,² a life-long New York resident, was discharged from a hospital in New York after treatment for a leg infection. Shortly thereafter, he went to Waterbury ... where his daughter [the plaintiff] lived, to convalesce. On August 8, 2005, he was admitted to Waterbury Hospital because of complications from his previous treatment. Nine days later, on August 17, 2005, Barbara F. Limauro, a hospital employee, filed an application for appointment of conservator in Waterbury Probate Court. The record does not indicate what prompted Limauro to file this application.

“The pertinent statute requires the [P]robate [C]ourt, as a threshold matter, to give the respondent seven days' notice in any application for an involuntary conservatorship. [General Statutes (Rev. to 2005) ] § 45a–649 (a). ³ 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. [General Statutes (Rev. to 2005) ] § 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, [Probate Court] 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 [§] 45a–649 (a), and (3) the order dated August 25, 2005, specified that Gross should be served by August 24.

“Also on August 25, 2005, Brunnock appointed [Attorney] Jonathan Newman to represent Gross in the involuntary conservatorship action. Newman interviewed Gross, who told Newman that he opposed the conservatorship. Newman described Gross as alert and intelligent and stated in a report that Gross wanted to live at home and manage his own affairs. Nevertheless, Newman concluded that he could not ‘find any legal basis [on] which to object to the appointment of a conservator of ... Gross' person and estate.’ Newman also signed the form ‘attorney for ward.’ The relevant statute defines a ‘ward’ as ‘a person for whom involuntary representation is granted’ pursuant to statute. [General Statutes (Rev. to 2005) ] § 45a–644 (h).... At the time Newman signed the form, no such representation had been granted; Gross was not a ‘ward’ but rather a ‘respondent.’ [General Statutes (Rev. to 2005) ] § 45a–644 (f).

“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 ... Gross and it is obvious to me that he grossly under and misrepresented ... Gross at the time.’ ...

“The respondent also has a right to attend any hearing on the application. [General Statutes (Rev. to 2005) ] § 45a–649 (b)(2). If he wishes to attend ‘but is unable to do so because of physical incapacity, the court shall schedule the hearing ... at a place which would facilitate attendance ... but if not practical, then the judge shall visit the respondent’ before the hearing, if he is in the state. Id.... The next section reiterates that a judge could ‘hold the hearing on the application at a place within the state other than its usual courtroom if it would facilitate attendance by the respondent.’ [General Statutes (Rev. to 2005) ] § 45a–650 (c). The parties do not dispute that (1) Judge Brunnock never visited Gross, (2) the hearing was not held at a location that would facilitate Gross's attendance, and (3) Gross was not personally present at the hearing.

“Furthermore, Connecticut law at the time only permitted a conservatorship for those who were residing or domiciled in Connecticut, [General Statutes (Rev. to 2005) ] § 45a–648 (a); Gross was neither a resident nor a domiciliary. It is undisputed that Newman failed to bring this jurisdictional defect to the court's attention. (As will be explained ... it was on the basis of this defect that the Connecticut Superior Court eventually granted Gross's petition for a writ of habeas corpus and held the conservatorship void ab initio.)

“On September 1, 2005, Brunnock appointed Kathleen Donovan as conservator to manage Gross's person and estate. Connecticut state law provides that the [P]robate [C]ourt must require a probate bond [when it appoints a conservator of the estate] and, ‘if it deems it necessary for the protection of the respondent, [it may] require a bond of any conservator [of the person]’ as well. [General Statutes (Rev. to 2005) ] § 45a–650 (g). Donovan never posted a bond.

“A week or two later, Donovan placed Gross in the ‘locked ward’ of [Grove Manor Nursing Home, Inc. (Grove Manor) ]. Gross alleges in his complaint that his roommate was a confessed robber who threatened and assaulted him. Gross also claims that Grove Manor, with the knowledge and consent of Donovan, kept him in a room with the violent roommate after it learned of the assault, which was not reported to the police.

“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 [Maggie] Ewald, [the former acting long-term care ombudsman of the Connecticut department of social services] 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.... According to Gross's complaint, [one such] order restricted [the plaintiff's] ability to visit him: the visits were required to be on-premises, only once per day, for no longer than one hour.... [I]t also [prohibited] her from bringing ‘any recording devices (visual and/or audio) into Grove Manor.’ ...

“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 ... argument that habeas relief was unnecessary because, if the Probate Court acted without...