Forced nursing home stay called ‘miscarriage of justice“
by Thomas B. Scheffey
The disturbing case of New York resident Daniel Gross, whose visit to Connecticut ended in a 10-month stay in a locked Waterbury nursing home ward, is coming before the state Supreme Court to determine just how much immunity from suit his lawyers deserve.
To advocacy groups like the American Association of Retired Persons, which filed an amicus brief in the case, Gross’s case exemplifies why conservators, lawyers for wards and nursing homes should not be shielded by quasi-judicial immunity. The storm of outrage and controversy in this compelling situation, say advocates for the defendant attorneys, is exactly the reason such protections are needed.
Connecticut case law is so unclear on this immunity question that the U.S. Court of Appeals for the Second Circuit sent the matter to the state Supreme Court with a request to fill in the blanks of what legal protections conservators and lawyers for wards of the probate courts can legally expect.
In 2006, on a writ of habeas corpus, Gross was freed from Grove Manor nursing home by Superior Court Judge Joseph Gormley, who called the case a gross miscarriage of justice. The elderly man had been visiting one of his daughters in Waterbury when a leg infection landed him in the nursing home.
When his children couldn’t agree on his care, a hospital employee asked the probate court to review Gross. It sent Waterbury lawyer Jonathan Newman, who visited Gross and found him alert and even “profound” in his communication. He had a home on Long Island with a reverse mortgage, and expressed a desire to return and live independently.
In his report to Waterbury probate Judge Thomas Brunnock, Newman wrote that he “cannot find any legal basis on which to object to the appointment of a conservator for Daniel Gross’ person and estate.”
By statute, Gross was entitled to seven days notice of the hearing to appoint a conservator, and if he couldn’t get to the hearing, the judge was supposed to go to him. Instead, according to the court record, Brunnock on Aug. 25 wrote an order that Gross was to be notified on Aug. 24 of an upcoming Sept. 1 hearing – a legal act the Second Circuit described as “facially impossible.”
Naugatuck solo Kathleen Donovan became Gross’s conservator for nearly a year, ultimately billing $27,000 for her services while he was in the locked ward. In Gross’s original complaint, he alleged his roommate was a confessed robber who threatened and assaulted him. Once, it adds, when Gross returned on a day pass to Long Island, he was hospitalized there, and Donovan arrived with an ambulance to return him to Connecticut, against the New York doctors’ advice.
On July 12, 2006, when the habeas writ came to Waterbury Superior Court Judge Joseph Gormley, he was critical of probate Judge Brunnock’s failure to discern that he might lack jurisdiction over the New York resident, and said Newman mis-served and underserved his client. The judge commented, “This case has disturbed me from day one. I kept looking for evidence to support what was done, but I find none.”
Gross, deeply relieved, was freed from the locked ward and the attentions of Newman and Donovan, returned home and died about a year later. His executrix, one of his daughters, filed a federal civil rights case against Gov. M. Jodi Rell, the state elder care ombudsman, the nursing home, the probate judge and the court-appointed lawyers.
Cases against the state employees were dismissed by U.S. District Judge Vanessa Bryant on sovereign immunity grounds, and the probate judge invoked judicial immunity. The cases against Newman and Donovan were dismissed on the grounds of quasi-judicial immunity.
On appeal to the Second Circuit, Bryant’s dismissals were affirmed for all parties, except for the outstanding question of quasi-judicial immunity for the conservator, the lawyer for the ward, and the nursing home. In expanded oral arguments Oct 24, plaintiff’s counsel, Sally R. Zanger of the Connecticut Legal Rights Project in Middletown is scheduled for 35 minutes. Donovan’s lawyer, Richard “Rick” Roberts of Cheshire’s Nuzzo & Roberts, is to have 16 minutes. Newman’s lawyer, Louis Blumenfeld, of Hartford’s Cooney, Scully & Dowling, gets 12 minutes, and Wiggin & Dana advocate Jeffrey Babbin, for Grove Manor nursing home, has seven minutes of argument.
According to the defense, a careful examination of the facts makes Newman’s and Donovan’s work more understandable and the type of actions that should be protected by quasi-judicial immunity.
The statute for creating conservatorships speaks of “residents or domiciliaries” of the probate court’s jurisdiction. Newman’s lawyers note that Gross had been domiciled at his daughter’s, and in Connecticut hospitals, for two months before he was made a ward of the state.
In their brief for Newman, Blumenfeld and Lorinda S. Coon agree Connecticut’s case law is all over the map on quasi-judicial immunity. The cases “essentially define a spectrum where, at one end, a government or court-appointed attorney acts impartially in furtherance of an objective goal [as an arm of the court] and, at the other end, an attorney acts entirely as an advocate for a client” like any private lawyer not entitled to court immunity.
A key precedent is the post-divorce case of Carubba v. Moskowitz, which recognized a dual role for appointed counsel for children in a divorce, “to both safeguard the child’s best interest and to act as an advocate for the child.”
Newman’s brief said lawyers in his role should have leeway. “[W]hen time is of the essence to make a medical decision or take steps to protect assets, is the attorney really duty-bound to delay a hearing due to some technical, easily correctable procedural flaw? Imagine the harm that could be done while the attorney blindly obeys the instructions of his client, forbidden to recognize that the client’s instructions are the product of dementia, paranoia or depression.” Both logic and the Rules of Professional conduct obliged Newman to impose a higher degree of objectivity about his client’s best interest, as in the case of a minor child, his lawyers argue.
The Supreme Court was asked to nail down the nature of Connecticut’s quasi-judicial immunity for conservators, and lawyers for probate wards, in light of existing state and federal formulas. The federal test was set out in the 1985 U.S. Supreme Court case of Cleavinger v. Saxner. It’s purpose is to determine how much the action in question needs the protection of court-like immunity from lawsuits.
Does the activity need to be performed without harassment or intimidation? Are there other safeguards besides lawsuit damages that would control unconstitutional conduct? Is the task insulated from political influence? Can error be protected on appeal?
Lawyers for Newman and Donovan contend that absolute or at least quasi-judicial immunity is necessary to aid the probate courts in supervision and care of wards and conservatees, and the acrimonious nature of the work requires a barrier against lawsuits.
In a long and clearly written 2009 opinion, a three-judge Second Circuit panel explained how powerful the protection of judicial immunity is. Under established U.S. Supreme Court precedents, judges are protected from lawsuits even when their conduct arises from legal mistakes, malice or overstepping the bounds of their jurisdiction.
It is only when a judge operates with a complete absence of any jurisdiction that the immunity does not apply. Thus, if a criminal judge convicts someone of a crime that does not exist, there is immunity. If a probate judge, with no criminal jurisdiction does so, there would be no immunity.
Lawyers unconnected to the case are following the progress of Gross with interest. For example, Eliot Gersten, of the Hartford offices of Pullman & Comley, represents Sam Manzo, a farmhand who was disinherited through the shenanigans of a now-retired probate judge and court-appointed lawyers for the aging Southington farm owner, Josephine Smorron. The defendants in that litigation are raising claims of quasi-judicial immunity, even though a probate court authorized Manzo to sue.
Gersten said the Gross case will be significant, however it is decided. “I think the case may make conservators remember they are a trustee, and I think they can be reminded they can’t neglect the ward, and that there are serious consequences for the ward if the conservator acts inappropriately. So the conservator should be held accountable for it.”
The defendants in Gross are saying, “if you allow us to be sued, no one’s going to want to take on the conservatorship role,” Gersten continued. “The problem with that argument, of course, is that it overlooks the fact that only irresponsible people are going to refuse to take on the conservator role. This case is not about those people who do their job responsibly and follow the rules, and do what a conservator’s supposed to do.”
Connecticut Law Tribune Article By Thomas Scheffey