State Supreme Court To Consider The Quasi-Judicial Immunity Of Conservators And Probate Lawyers
October 16, 2011
Daniel Gross, an old man infamously abused at the hands of probate court before he died in 2007, might yet force far-reaching reform in a system that once robbed him of his freedom.
Next week, the state Supreme Court will take up a key question from Gross' federal civil rights lawsuit and consider whether the people appointed to look after him --- the lawyers and conservators who are supposed to represent the best interests of the elderly and infirm in probate court --- are immune from lawsuits.
Whether lawyers and conservators deserve what is known as "quasi-judicial immunity" is a volatile question. Reformers say this case represents the ultimate recourse for folks abused by the probate courts. Probate judges --- and attorneys for Gross' lawyer and conservator --- say that denying immunity would bring the courts to "a screeching halt" because it would be impossible to find individuals willing to serve as conservators or lawyers in difficult cases for fear they could be sued.
It's hard to imagine a court system where those who abuse, neglect and exploit aren't held accountable. Granting lawyers and conservators immunity would do just that.
For years, I've watched rogue conservators and ill-informed probate judges abuse the rights of citizens. These might be isolated instances, but the cases keep coming in a court system that lacks proper oversight and that ought to be part of Superior Court.
The way to force reform in probate is to make sure there's accountability, not immunity. Our probate courts remain a separate world in which judges are elected and too often a good-old-boy network permeates appointment and supervision of conservators and lawyers.
No case illustrates this better than what happened when the elderly Gross ended up in Judge Thomas Brunnock's Waterbury probate court during the summer of 2005.
Gross had come from his Long Island home to visit his daughter in Waterbury. He became sick and was hospitalized as his children fought over his care --- and over who should control his finances. After the hospital asked probate court to step in, Judge Brunnock ordered Gross involuntarily conserved, taking away all of his rights.
Brunnock didn't bother to give the old man a chance to speak up: Gross wasn't even at the hearing at which he was ordered conserved. His court-appointed lawyer, Jonathan Newman, failed to object to the conservatorship, despite knowing Gross' opposition. His conservator, Kathleen Donovan, placed him in a locked, restricted ward at Grove Manor Nursing Home in Waterbury.
Few moments in journalism stand out more for me than the day in July 2006 when I watched Superior Court Judge Joseph Gormley acknowledge "a terrible miscarriage of justice" and order 86-year-old Daniel Grossfreed from his imprisonment in a Waterbury nursing home. Were it not for the work of Legal Aid attorneys and John Peters, a volunteer lawyer from West Hartford, Gross might never have emerged from probate hell.
As he shuffled out of the courthouse, Gross told me that he was "overwhelmed with happiness." I saw what freedom, dignity and civil rights mean for an old man abused by a probate court that was supposed to protect him.
Gross died a year later, a free man, but not before he and his daughter filed a civil rights lawsuit. In 2009, the U.S. 2nd Circuit Court of Appeals affirmed a lower court's dismissal of most claims. The courts affirmed Brunnock's judicial immunity (federal and state laws are clear on this issue), but whether Newman and Donovan were entitled to quasi-judicial immunity wasn't so obvious.
The court sent a burning question --- whether conservators and court-appointed lawyers also deserve immunity from lawsuits --- back to the Connecticut Supreme Court for a decision. The court also asked the state court to determine whether the nursing home where Gross was placed also can claim immunity from lawsuits.
A "troubled" appeals court said there was "credence to Gross's allegation that there was a conspiracy to deprive him of his rights."The ruling went on to state that under Connecticut law, "conservators may be liable.''
In her brief, Donovan argues that conservators can't be sued because they "serve as the court's agent in delivering compassionate suport to help those who cannot help themselves ... this court should hold that a conservator has absolute immunity for all actions taken in the fufillment of his or her statutory duties."
Newman's court brief likens his role as court-appointed attorney for Gross to that of a lawyer for a child: "He is serving as an assistant to the court in securing the child's best interests."
These arguments are both absurd and frightening. A conservator must act to represent the best wishes of her ward --- which might be in conflict with the court. A lawyer is an advocate, not "an arm of the court."
A friend of the court brief filed by the National Disability Rights Network makes clear the problem:
Connecticut "lacks the procedural safeguards that would adequately protect wards from improper conduct and abuse by conservators. ... A conservator may go as long as three years without a court review."
"Many day-to-day decisions by conservators are never reviewed by the probate court or the public and are known only to the wards, who are often powerless to voice objection to those decisions."
Whether there are a handful or dozens of Dan Grosses out there doesn't matter. The Supreme Court has a chance to bring new accountability to probate court and, most of all, to stand for the rights of some of our most vulnerable citizens.