Gross v. Rell

DANIEL GROSS ET AL.

v.M. JODI RELL ET AL.

SC 18548

Supreme Court of Connecticut

Argued October 24, 2011

officially released April 3, 2012

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and Harper, Js.

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

Louis B. Blumenfeld, with whom was Lorinda S. Coon, 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, for the appellee (defendant Kathleen Donovan).

Jeffrey R. Babbin, for the appellee (defendant Grove Manor Nursing Home, Inc.).

Daniel J. Klau filed a brief for the Connecticut Probate Assembly as amicus curiae.

Stacy Canan and Daniel S. Blinn filed a brief for the National Senior Citizens Law Center et al. as amici curiae.

Stephen Wizner 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 F. Tougas and Christine A. Walsh filed a brief for the National Disability Rights Network et al. as amici curiae.

Opinion

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 Clea-vinger 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 con-servatorship 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 conser-vatees, 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 Water-bury . . . 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 con-servatorship. [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 therespondent 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 conserva-torship. 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 locationthat 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...