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Forced nursing
home stay called ‘miscarriage of justice"
10/24/2011
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.
Immunity Test
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.”
Source:
Connecticut Law Tribune Article By Thomas
Scheffey
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Special
THANKS to the Hartford
Courant's Rick Green for
following the Daniel Gross
story from the beginning and
keeping the spotlight on
conservatorship abuse in the
CT probate courts.