Jessie Lee Sullivan, By Her Next Friend v. Paul Ganim, Judge of Probate et al. (2009)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

This is a habeas corpus action commenced by Darlene Parks, as next friend, in behalf of Jessie Lee Sullivan, a conserved person, by way of an order of the Bridgeport Probate Court, dated December 10, 2007.   The present action was commenced by the petitioner pursuant to General Statutes § 45a-705a, which authorizes an application for a writ of habeas corpus by an individual subject to a conservatorship who claims the illegality or invalidity of the appointment of a conservator.

The motion to dismiss has been filed on behalf of Probate Judge Paul Ganim, one of two named respondents to the action.   The additional respondent is James Lillis, the conservator appointed by Judge Ganim during proceedings at the Bridgeport Probate Court.   Judge Ganim has filed the motion to dismiss, arguing that the intent of General Statutes § 45a-705a, is that the conservator who has custody over the conserved person, is the proper respondent, and the court lacks jurisdiction over Ganim.   Ganim argues that the Judge of Probate who issued the challenged decision, is only to be provided notice of the action and, therefore, is not a proper party to the action.   In opposing the motion to dismiss, the petitioner argues that Judge Ganim is a proper party to the proceedings where the writ of habeas corpus challenges the legality and validity of the conservatorship.   The petitioner states that the plain meaning of § 45a-705a is clear and unambiguous and becomes evident in light of similar statutes, specifically General Statutes §§ 17a-686a and 17a-524.

I

Standard of Law Regarding a Motion to Dismiss a Writ of Habeas Corpus

Practice Book § 23-29(l)(2)(5) provide that the Court “may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines:  (1) the court lacks jurisdiction;  (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted” or “any other legally sufficient ground for dismissal of the petition exists.”  Practice Book § 23-29(1), (2) & (5).¹  “It is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”  Pamela B. v. Ment, 244 Conn. 296, 309 (1998).

A motion to dismiss under § 23-29 is the functional equivalent of the old motion to quash which was used to attack the legal sufficiency of a petition seeking habeas corpus relief.   Practice Book § 532; ²  Santiago v. Commissioner, 39 Conn.App. 674, 678 (1995);  Macri v. Hayes, 189 Conn. 566, 567 n.2 (1983).   When considering a motion to quash under Practice Book § 532, or a motion to dismiss under § 23-29, the allegations contained in the petition are deemed admitted, and resorting to facts outside those allegations in the petition is prohibited.  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990);  Santiago v. Commissioner, supra, 39 Conn.App. at 678.

II

Background

According to the petition, the conserved person, Jessie Lee Sullivan, “is an 87-year-old woman who owns real property at 360 Anton Drive in Bridgeport, Connecticut, where she has lived for most of her life.”   In October 2007, Charlene Reid, one of Sullivan's nieces, petitioned the Probate Court to appoint a conservator for Sullivan, who was then residing at Bridgeport Hospital.   That application “rais[ed] concerns that Sullivan had bills that had not been paid by her power of attorney, including a large arrearage owed to the gas company, and that her home health care for conditions including diabetes requiring regular blood testing and a restricted diet was inadequate.”   On October 16, 2007, the Probate Court appointed Attorney Carmine Perri to represent Sullivan's legal interests in that conservatorship proceeding.   Thereafter, on October 30, 2007, the Probate Court appointed Attorney Brian Winter to serve as guardian ad litem for Sullivan.

The Probate Court scheduled a hearing on the application for appointment of a conservator on December 10, 2007.   In advance of that hearing, the Probate Court received a letter from James Lillis, Sullivan's Power of Attorney and Healthcare Manager, seeking to release funds to pay her outstanding bills.   Lillis additionally raised concerns that Sullivan's nieces, Reid and Darlene Parks and her sister, Bertha Parks were “the reason she is in the hospital” and that they had taken Sullivan's personal property, identification, and Social Security from Sullivan's home.   The Probate Court also received a letter from Attorney Perri, Ms. Sullivan's court-appointed counsel.   Perri notified the Probate Court that Sullivan objected to the appointment of a conservator and appeared to be able to comprehend conversations.

Two weeks after the Probate Court received the letter from her court-appointed counsel indicating that Sullivan objected to the appointment of a conservator and approximately two weeks before the December 10, 2007 hearing, Sullivan's guardian ad litem filed an Application for Appointment of a Conservator indicating that Sullivan had designated Lillis as conservator.   The guardian ad litem's application also represented that Sullivan needed a conservator of the estate to protect her property rights and a conservator of the person because her condition made her “unable to receive and evaluate information or make or communicate decisions to such an extent that [she was] unable, even with appropriate assistance, to meet essential requirements for personal needs.”   On December 10, 2007, Sullivan's court-appointed counsel indicated that Sullivan had decided not to object to Lillis' application for appointment as conservator, but wished to make it clear that she wanted to remain residing in her home.

The December 10, 2007 hearing at the Probate Court hearing was recorded.   Upon the conclusion of the December 10, 2007 hearing, Ganim granted the application based on what he alleges were findings of “[c]lear and convincing” evidence.   He appointed Lillis as conservator, with the express caveats that the conservator:  (1) “shall use the least restrictive means of intervention in the exercise” of his authority;  (2) was “bounded by all health care decisions properly made by the conserved person's health care representative”;  and (3) that Sullivan “shall retain all rights and authority not expressly assigned to the conservator.” ³  Sullivan did not appeal that decision.⁴

On or about October 21, 2008, the conservator, filed a request to place Sullivan in long term care at the Park City Residential Care Home in Bridgeport (“Park City”) because her health required supervised care which could not be provided by the current primary care provider, Gregory Brown, Sullivan's grandson.   The conservator's request additionally stated that Brown's presence was “causing emotional stress” for Sullivan.   The placement request was supported by a letter from Sullivan's treating physician indicating that Sullivan may be able to receive the best care at an extended care facility.

On December 2, 2008, before the Court had acted on the request to place Sullivan at Park City, she was taken from her home and admitted to Northbridge Health Care Center in Bridgeport (“Northbridge”) for respite care.   On February 2, 2009, Attorney Mark Moore of Connecticut Legal Services, who represents Darlene Parks, the next friend petitioner in this action, filed an appearance in the probate matter on behalf of Sullivan.   On February 4, 2009, Moore filed a Motion for Continuance, indicating that Sullivan's “new attorneys need additional time to prepare” for a scheduled February 9, 2009 hearing on several issues, including the maintenance of Sullivan in long term care.

Sullivan's court-appointed counsel, responded to Moore's appearance on behalf of Sullivan by moving to strike Moore's appearance claiming said appearance violated the rules of professional conduct.   Judge Ganim struck Moore's appearance on behalf of Sullivan following a hearing.   Neither Sullivan nor Moore appealed, or otherwise sought review of, that decision.

On April 6, 2009, the Court ordered the parties to appear to discuss the outstanding issues, including Sullivan's objection to her conservator's request that she be kept in a nursing home.   Although, at that time, the parties believed it might be appropriate to return Sullivan home, in the intervening months both Sullivan's conservator and her guardian ad litem concluded that it was in the best interests to remain in Northbridge.   The Probate Court held a hearing on this issue on July 3, 2009, and allegedly found clear and convincing evidence that it was in the best interest of Sullivan to remain in her current residence at Northbridge Healthcare Center in Bridgeport, Connecticut.   Again, despite having the services of court-appointed counsel, Sullivan did not appeal the probate court's decision.

On August 24, 2009, Moore filed the instant Petition for a Writ of Habeas Corpus on behalf of Sullivan, acting by her niece and next friend Darlene Parks.   The petitioner has named Judge Ganim and the conservator, Lillis as respondents.   However, the petitioner alleges that “[i]n spite of any statements contained in this petition regarding the conservator ․ he [Lillis] is not a true party to the dispute between Ms. Sullivan and the court of probate.”

III

The Dispute

“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ․ the traditional function of the writ is to secure release from illegal custody.”  Baker v. Commissioner of Corrections, 281 Conn. 241, 249 (2007) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), overruled in part on other grounds by Heck v. Humphrey, 512 U.S. 477, 481-82 (1994)).  “[T]he writ of habeas corpus does not act upon the [person] who seeks relief, but upon the person who holds him in what is alleged to be an unlawful custody ․ The whole force of the writ is spent upon the [custodian].”  (Citations omitted.)  Hickey v. Commissioner of Corrections, 82 Conn.App. 25, 33 (2004).

The respondent Ganim argues several reasons why he is not a proper respondent to the petition for a writ of habeas corpus.   First, Ganim argues that the conservator Lillis has the “[t]he duty and responsibility for the general custody of the conserved person” and is the only proper respondent to this petition.   See General Statutes § 45a-656; ⁵  see also, Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 124 S.Ct. 2711 (2004) (The proper respondent in a federal habeas petition is the person who has custody over the petitioner).   Ganim argues that despite the fact that the conservator is the custodian of the conserved person, Sullivan, and is responsible for her day-to-day affairs, the petition claims that all claims of relief are directed to Ganim, while the petition expressly disclaims any attempt to obtain relief from the conservator.⁶  Ganim argues that § 45a-705a(b), requires only that the petitioner gives notice of the challenge to the legality of the probate judge's decision by providing the judge with a copy of the petition.

Ganim further argues that § 45a-705a was formerly Public Acts 2007, No. 07-116, § 24 (P.A. 07-116).   He notes that P.A. 07-116, § 25, which immediately follows and deals with habeas corpus proceedings involving individuals in inpatient treatment for substance dependency, expressly provides for a judicial role in those proceedings.   Specifically, Public Act 07-116, § 25, now General Statutes 17a-686a,⁷ provides that if the illegality or invalidity of a substance abuse commitment is alleged in a writ of habeas corpus, a copy of the writ shall be delivered to the judge of the committing court and such judge shall be represented by the state's attorney for the judicial district in which the committing court is located ․ Additionally, General Statutes § 17a-524,⁸ dealing with persons confined in a hospital for psychiatric disabilities, provides a similar mechanism for service on the probate judge and legal representation for the probate judge.

Ganim argues there is no reason in law or logic for the legislature to specifically provide legal representation to judges issuing substance abuse and psychiatric commitments, while forcing judges issuing conservatorship orders to retain their own legal representation, other than to conclude that the legislature never intended that judges issuing conservatorships would be respondents in the action.   Such a result would directly interfere with the judicial decision making process by depriving a probate judge of the crucial ability “to exercise [their] ․ judicial duties without fear of reprisal, annoyance or incurring personal liability.”  Leseberg v. O'Grady, 115 Conn.App. 18, 22 (2009), quoting, Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630-32 (2000).  “The Judge's decisions speak for themselves and he cannot be compelled to testify concerning his mental processes in arriving at a judicial decision.”  Gold v. Warden, 222 Conn. 312, 319 n.11;  see also, Emerick v. Emerick, 28 Conn.App. 794, cert. denied, 224 Conn. 915 (1992).   Ganim agrees that while a judge can be called as a witness where there is a compelling need for the judge's testimony as to observed facts, Gold v. Warden, supra, 222 at 320, he argues this petitioner has not demonstrated or alleged any such compelling need.

Ganim, lastly, argues that the petitioner's explicit focus on the probate judge to the exclusion of the conservator, highlights the threat to judicial independence and judicial administration posed by an interpretation of § 45a-705a(b) that would enable parties disappointed by a probate judge's rulings to summon those judges to court on short notice and require them to incur expenses for legal representation.

In opposing the motion to dismiss, the petitioner, as well, directs the court's attention to General Statutes §§ 17-686a and 17a-524 to support her position that the legislature, in fact, did intend that the probate judge be made a respondent in a petition for a writ of habeas corpus brought pursuant to of § 45a-705a(b).  The petitioner argues that the probate judge is responsible for the order appointing a conservator, and the judge has an ongoing responsibility to the conserved person.   The petitioner directs the court to Department of Social Services v. Saunders, 247 Conn. 686, (1999), which stated, “[t]he court and not the conservator, is primarily entrusted with the care and management of the ward's estate, and, in many respects, the conservator is but the agent of the court.”  Id., 708, quoting, Marcus' Appeal From Probate, 199 Conn. 524, 529 (1986);  see also, Murphy v. Wakelee, 247 Conn. 396, 406-07 (1998).

In support of her position that the probate court owes continuing and ongoing duties to the conserved person, the petitioner notes that General Statutes §§ 45a-660(c) and 45a-656(c) each contain provisions wherein the court must review the status and need for the conservatorship itself, as well as, a conservator's annual report.   Pursuant to § 45a-656(c), the conservator annually must report to the probate court regarding the condition of the conserved person, the efforts made to encourage independence of the conserved person, and the conservator's statement on whether the appointment of the conservator is the least restrictive means of intervention for managing the conserved person's estate.   The petitioner concedes that, on its face, the language of § 45a-705a(b) is ambiguous as to whether the probate judge is to be made a party to the habeas corpus proceeding or merely is to be given notice of the proceeding.   However, the petitioner argues that the ambiguity is eliminated when one considers statutes, such as, General Statutes §§ 17-686a and 17-524, concerning confinement for substance abuse and psychiatric disabilities, where the intent is to make the judge of probate a party to the proceedings.

Lastly, the petitioner argues that the case law regarding criminal habeas corpus actions, both federal and Connecticut, relied upon by Ganim, is of no value in interpreting § 45a-705a(b).  In criminal proceedings involving petitions for writs of habeas corpus, the “true custodian” is almost always a corrections department official who is holding the petitioner in custody.   The petitioner argues that a criminal trial court that sentences a convicted person has no continuing jurisdiction over a prisoner, once the sentence is imposed, wherein a probate court judge who orders a conservatorship has ongoing, continuing jurisdiction over both the conservator and the conserved person.   The petitioner concludes, therefore, that Ganim, the judge of the Probate Court, is a proper respondent in this civil habeas corpus proceeding challenging the legality and validity of the conservatorship imposed on Sullivan.

IV

Discussion

Due to the recent enactment of § 45a-705a(b) (formerly Public Acts 2007, No. 07-116, § 24) there is no appellate case law to provide guidance to the court.   The issue at hand appears to be a case of first impression.   Thus, it is left to this court to conduct a review in an attempt to interpret the intent of § 45a-705a(b).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply ․ When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.”  (Citations omitted;  internal quotation marks omitted.)  Rainforest Cafe v. Dept. of Revenue Services, 293 Conn. 363, 371-72, 977 A.2d 650 (2009).  “In seeking to determine that meaning ․ [General Statutes] § 1-2z,⁹ directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․” Id., 372.  “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)  Weems v. Citigroup, Inc., 289 Conn. 769, 778-79, 961 A.2d 349 (2008);  see also State v. Marsh & McLennan Cos., 286 Conn. 454, 464-65, 944 A.2d 315 (2008).  “When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” Rainforest Cafe v. Dept. of Revenue Services, supra, 293 Conn. 372-73.  “We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise ․” (Citations omitted.)  Id.;  State v. Lutters, 270 Conn. 198, 206, 853 A.2d 434 (2004).

In accordance with § 1-2z, the court begins with an analysis of the text of the statute.   The relevant portion of § 45a-705a which is at issue, is § 45a-705a(b), which states:

(b) A writ of habeas corpus shall be directed to the guardian of the person or the estate of the ward or to the conservator of the conserved person and if illegality or invalidity of the guardianship or involuntary representation is alleged in such writ, a copy shall also be directed to the judge of the court that issued the order as to such claim.

Id.

On its face, the text of the statute is clear and unambiguous that Ganim was to receive a copy of the writ of habeas corpus.   The answer as to whether the Judge of Probate is to be a party respondent to the habeas corpus action, however, is not clear from a reading of the text and requires further analysis.   The court, therefore, reviews the text of the statute itself in relation to other statutes.

The court has summarized the respective positions of the petitioner and Ganim, as to how each party interprets the effect of General Statutes §§ 17-686a and 17-524, as they may relate to § 45a-705a(b).  While the court does not find either position dispositive of the question presented, regarding whether Ganim is a proper respondent to a petition for a writ of habeas corpus brought pursuant to § 45a-705a(b), the analysis of these statutes is instructive.

The court agrees with Ganim's position that the conservator has custody of the conserved person.  Section 45a-656(a)(1) clearly expresses that the conservator's duties and authority include “general custody of the conserved person.”   See General Statutes § 45a-656(a)(1).  General Statutes § 1-1(a) requires that the court construe the term “custody” in accordance with the commonly approved usage of the language.  State v. Fernando, 294 Conn. 1, 17 (2009);  Simmonette v. Great American Ins. Co., 165 Conn. 466, 471, 338 A.2d 453 (1973);  Caulkins v. Petrillo, 200 Conn. 208, 215-16, 510 A.2d 1329 (1986).   It is a well-established rule that “[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.”  State v. Perruccio, 192 Conn. 154, 163 n.4, 471 A.2d 632 (1984).  “If a statute ․ does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”  Id. The term “custody” is defined as “immediate charge and control (as over a ward or a suspect) exercised by a person or an authority.”   Merriam-Webster's Collegiate Dictionary (10th Ed.1993).

The court also notes that §§ 17-686a and 17-524, both provide legal representation to the probate judge, and also provide that “[c]ourt fees may not be charged against ․ the judge.”   Neither of these protections are provided to a probate judge in § 45a-705a(b).  Despite the petitioner's argument that the Attorney General's Office represents a probate judge, the court cannot read that type of provision into § 45a-705a(b);  nor can the court infer that the relief from court fees for a probate judge applies to § 45a-705a(b).¹⁰  “When a court interprets [a statute], it cannot change the inherent meaning of words or supply additional terms to change the meaning of the provision at issue.”  PJM & Associates LC v. City of Bridgeport, 292 Conn. 125, 138-39, 971 A.2d 24 (2009);  see, Lucarelli v. State, 16 Conn.App. 65, 70, 546 A.2d 940 (1988) (”[c]ourts must interpret statutes as they are written ․ and cannot, by judicial construction, read into them provisions which are not clearly stated ․ ).

The court concludes that a review of §§ 17a-686a and 17a-524, is not dispositive of the issue, as to whether a probate judge should be a respondent to a petition for a writ of habeas corpus brought pursuant to § 45a-705a(b).  The court, therefore, next looks to General Statutes § 45a-186, which governs an appeal from an order of the probate court.  Section 45a-186(b) provides that a person who files an appeal from an order of the probate court “shall serve a copy of the complaint on the court of probate ․” at the probate court.   It further provides that service on a respondent or a conserved person must be served in hand in an appeal under part IV of Chapter 802h, governing conservators.¹¹

The legislature has recently enacted Public Acts 2009, No. 09-114, § 14 (Public Act 09-114 § 14), which repeals and replaces § 45a-186, effective January 5, 2011.   Public Act A. 09-114, § 14(b) also provides for service of the appeal on the probate court rendering the order or decree being appealed from, and that each interested party shall also be served.   Public Act 09-114, also provides that service on a respondent or conserved person in an appeal from an action under part IV of chapter 802h shall be “in hand” by a state marshal, constable or an indifferent person.   See Public Act 09-114, § 14(b).  Both § 45a-186 and Public Act 09-114 specifically acknowledge that nothing in their provisions, prevent an aggrieved person from filing a petition for a writ of habeas corpus, a petition for termination of involuntary representation or a petition for any other available remedy.   See General Statutes § 45a-186(g);  Public Act 09-114.   Clearly, § 45a-186 and its recently enacted successor, Public Act 09-114, § 14, both contemplate challenges to the legality and validity of a probate judge's findings and orders, as they might apply to the involuntary appointment of a conservator for a conserved person's estate and person.   Neither § 45a-186 or Public Act 09-114, § 14 mandate or can be interpreted to conclude that the judge of probate would be a respondent or a party to an appeal from probate.   Both § 45a-186(g) and Public Act 09-114 acknowledge that their provisions do not prevent an involuntarily conserved person from utilizing a writ of habeas corpus to challenge the illegality or invalidity of the probate court's order imposing an involuntary conservatorship, which are issues that can also be raised by an appeal.

However, in comparing the text of § 45a-705a(b) to both § 45a-186 and Public Act 09-114, the court acknowledges a difference in the language regarding service on the judge of probate or on the probate court.  Section 45a-705a(b) states that a copy of the writ shall “be directed to the judge of the court that issued the order ․,” (Emphasis supplied.)  General Statutes § 45a-705a(b).  Section 45a-186 provides that copy of an appeal must be served “on the court of probate.”  (Emphasis supplied.)  “It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ․ [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous ․ Because [e]very word and phrase [of a statute] is presumed to have meaning ․ [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”  (Citations omitted;  internal quotation marks omitted.)   PJM & Associates, LC v. City of Bridgeport, supra, 292 Conn. 125, 138;  American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008).

The court's initial analysis of § 17-686a and § 17-524 read in conjunction with § 45a-186 and P.A. 09-114, § 14, appears to indicate that the judge of probate is not a proper respondent to a petition of habeas corpus brought pursuant to § 45a-705a(b).  Nonetheless, the court cannot ignore that § 45a-705a(b), § 17-686a and § 17-524, each contain identical language that a copy of the writ shall “be directed to the judge of the court that issued the order ․” Accordingly, the court continues its analysis by reviewing the legislative history and circumstances surrounding the passage of § 45a-705a(b) (Public Act 07-116) to determine the legislative policy it was designed to implement.  Rainforest Cafe v. Dept. of Revenue Services, supra, 293 Conn. 372-73.

The legislative history of Public Act 07-116 reveals that its purpose was a comprehensive revision of laws regarding conservatorships to insure the highest due process safeguards before the court interferes with the civil rights of a person and their property and to establish that the appointment of a conservator is a last resort.   The history surrounding the passage of Public Act 07-16 included significant discussion and testimony regarding changes in procedural due process elements including:  (1) notice provisions to known necessary parties;  (2) a right to counsel;  (3) recordings of hearings;  (4) streamlined and accelerated time tables for adjudicating these matters;  and (5) the adoption of the superior court rules of evidence.   Changes in substantive due process were also discussed, including:  (1) the use of superior court rules of evidence;  (2) detailed findings by the court;  (3) a burden of proof of “clear and convincing evidence” before a conservator is to be appointed;  and (4) a revised procedure for the termination of a conservatorship.   The petition for a writ of habeas corpus for a review of any orders of confinement was noted.   Each of these provisions and other provisions were included in the enacted version of Public Act 07-116.   While the availability of a writ of habeas corpus is briefly mentioned in the legislative history, there is no discussion as to whether a judge of probate is to be made a respondent in a petition brought pursuant to § 45a-705a.  (Formerly Public Acts 2007, No.07-116, § 24.)

The stated purpose of § 45a-705a is reflected in § 45-705a(a) and is to allow a person subject to a guardianship or involuntary representation to have the benefit of a writ of habeas corpus to provide a timely determination of the legality of the order of the guardianship or involuntary representation.   This statutory remedy is in addition to any rights of appeal to such orders.   The court must determine whether the lack of a judge of probate as a respondent to the petition for a writ of habeas corpus in this action would defeat or otherwise frustrate the intent of § 45-705a(a), where the action may still proceed against the conservator.   The court finds that the removal of the judge of probate as a respondent would not negatively affect or impede the petitioner in prosecuting the merits of the petition.

The subject petition argues that no recordings or transcripts of the probate hearings are included in the court record.   The petitioner also alleges that even if a full evidentiary hearing was held prior to the issuance of the decree involuntarily conserving Sullivan, the decree issued on December 10, 2007 is legally insufficient, as it does not contain specific findings required by General Statutes § 45a-650.   The petitioner additionally alleges that Ganim's decree does not specifically address what rights and duties were assigned to the conservator in accordance with § 45a-650(1).   Lastly, the petitioner asserts that evidence produced at the hearing and evidence contained in the probate court's records do not rise to the level of “clear and convincing” evidence.

The court is cognizant that a petition for a writ of habeas corpus is not an appeal from the orders or decree of probate.   However, a review of the statutes governing an appeal is useful.  Connecticut General Statutes § 45a-186(a) provides that, “Appeals from any decision rendered in any case after a recording is made of the proceedings under § 45a-650 shall be on the record and shall not be a trial de novo.”  General Statutes § 45a-650 contains the provisions for hearings on an application for involuntary representation and the appointment of a conservator.¹²  Section 45a-186a(b) provides that the Probate Court shall send to the Superior Court a certified copy of the record of proceeding from which an appeal was taken, including the court's findings of fact and conclusions of law.  General Statutes § 45a-186a(c) provides that “[a]n appeal from an order, denial or decree made after a hearing on the record shall be made by the Superior Court without a jury ․ The appeal shall be confined to the record.   If irregularities in procedure before the court of probate are not shown in the record or of facts necessary to establish such irregularities in procedure are not shown in the record, proof limited to such alleged irregularities may be taken in the Superior Court.   The Superior Court, on request of any party, shall hear oral argument and receive written briefs.”  General Statutes § 45a-186a(c).

The court anticipates that the petitioner's claims can be adjudicated by an “on the record” proceeding.   Despite the allegations by the petitioner that no recordings or transcripts of the probate court proceedings are available, certified transcripts of the court hearings have since recently been filed with this court.   Certified copies of the record of proceedings and any findings of fact and conclusions of law, either have been filed or can be made available to this court.   This court, after reviewing the record and transcripts, has the additional option of taking limited evidence if it finds any irregularities in procedure.   The court will also allow oral argument and written briefs.   The court finds that the granting of the motion to dismiss as to Judge Ganim would neither defeat or otherwise frustrate the intent of § 45-705a(a), and would not unduly prejudice the petitioner.

When the legislature enacted P.A. 07-116, it is presumed they were aware of the differences in the provisions of § 17-686a and § 17-524, regarding providing legal representation for the probate judge, and absolving the judge from being taxed for costs.   Thus, had the legislature intended that the judge of probate was to be a party respondent in an action pursuant to § 45a-705a(b), they would have provided legal representation to the judge and absolved the judge from being taxed for court costs.  “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ․ is significant to show that a different intention existed ․ That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.”  (Citations omitted;  internal quotation marks omitted.)  State v. Fernando, supra, 294 Conn. 21;  Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003).

VI.

Judicial Immunity

Lastly, the court is mindful of the doctrine of judicial immunity.   An application for a writ of habeas corpus brought pursuant to § 45a-705a(b) is a civil action governed by General Statutes § 52-466 ¹³ and Practice Book §§ 23-21 through 23-42.¹⁴  According to the long-standing doctrine of judicial immunity, “[A] judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge.   The rationale is that a judge must be free to exercise his judicial duties without fear of reprisal, annoyance or incurring personal liability ․ Absolute immunity, however, is strong medicine ․ The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties ․” The officers to whom the absolute protection of judicial immunity extends is limited.   This fact reflects an [awareness] of the salutary effects that the threat of liability can have ․ as well as the undeniable tension between official immunities and the ideal of the rule of law ․ The protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges' law clerks ․ Moreover, it is important to note that even judges do not enjoy absolute immunity for administrative as opposed to judicial actions ․ The determination is made using a functional approach ․ [I]mmunities are grounded in the nature of the function performed, not the identity of the actor who performed it.”   Citations omitted;  emphasis added;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630-32, 749 A.2d 630 (2000).

A judge is entitled to absolute judicial immunity unless “the judicial conduct is so far outside the normal scope of judicial functions that the judge was in effect not acting as a judge.”  Shay v. Rossi, 253 Conn. 134, 170, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003), citing Stump v. Sparkman, 435 U.S. 349, 364, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).   Judicial immunity “is overcome in only two sets of circumstances.   First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity ․ Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”  Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).

The issue of judicial immunity, as applied to a judge of probate in Connecticut was addressed in Gross v. Rell, 485 F.Sup.2d 72 (D.Conn.2007), a civil action for damages, brought as a result of the imposition of an illegal and invalid conservatorship imposed on the plaintiff Gross.   In dismissing the civil action as to the judge of probate, the court stated, “[t]he principle of judicial immunity recognizes that a judge may make mistakes, but holds that it is better for a judge when exercising the discretion inherent in his judicial power to risk some error and possible injury from such error than not to decide or act at all.   A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.”  Id., 76.   Absolute immunity protects a judicial action unless the action was “manifestly or palpably beyond” the court's authority.   Root v. Liston, 444 F.3d 127, 132 (2d Cir.2006).   Moreover, absolute judicial immunity is not pierced by allegations of bad faith or malice.   Pierson v. Ray, 386 U.S. 547, 554 (1967);  Mireles v. Waco, supra, 502 U.S. 11-12.   The protection of judicial immunity has been extended to both courts of general jurisdiction and courts of limited jurisdiction.  Tucker v. Outwater, 118 F.3d 930, 937 (2d Cir.1997).   A probate judge is entitled to absolute judicial immunity for any action not taken in the clear absence of all jurisdiction.  Gross v. Rell, supra, 485 F.Sup.2d 78.

The District Court's decision in Gross v. Rell, supra, 485 F.Sup.2d 72, was appealed to the United States 2nd Circuit Court of Appeals.   In a ruling issued October 27, 2009, the court affirmed the decision of the District Court finding absolute judicial immunity as to the probate judge.  Gross v. Rell, 08-2626cv (2nd Cir.10-27-2009).¹⁵

In the present case, Ganim was acting in his judicial capacity when he ruled on the application for a conservator.  Leseberg v. O'Grady, 115 Conn.App. 18, 22, 971 A.2d 86 (2009).  “The general subject area is prescribed by statutes governing the Probate Court.”  (Citations omitted.)  Id., 23;  see General Statutes § 45a-650 (appointment of conservator).   Therefore, there is no basis in the law on which to conclude that Ganim was acting outside the scope of his judicial functions when, as here, he was ruling on applications for the appointment of a conservator.   These actions are clearly within the scope of judicial functions of a judge of the Probate Court.  Id., 23-24.   In the absence of unambiguous statutory language, or clear legislative intent otherwise, the court will not abandon the principle of judicial immunity and will not strip Ganim of the protections that it affords.  “A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.”  Stump v. Sparkman, 435 U.S. 349, 359.

“The issue of whether a motion to dismiss on the ground of judicial immunity is jurisdictional was raised but not decided in Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005).”  Leseberg v. O'Grady, supra, 115 Conn.App. 21 n.3. The Leseberg court, similarly, declined to address that issue.   Id. This court declines, as well, to address the issue and will leave that determination to future appellate review.   The court has addressed the question of judicial immunity in this matter for the purpose of interpreting the legislative intent of § 45a-705a(b) and not for determining if a motion to dismiss is the proper procedural pleading in this matter.¹⁶

VII

Conclusion and Orders

The court finds that unlike § 17-686a and § 17a-524, where the intent of the statute is to make a probate judge a party respondent, Ganim is not a proper respondent to a petition for writ of habeas corpus brought pursuant to § 45a-705a(b).  The motion to dismiss the petition for a writ of habeas corpus, as it applies to Judge Ganim, is hereby granted.

BY Judge Richard B. Arnold

FOOTNOTES

FN1. Practice Book § 23-29 reads as follows:The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:1) the court lacks jurisdiction;2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition;4) the claims asserted in the petition are moot or premature;(5) any other legally sufficient ground for dismissal of the petition exists..  FN1. Practice Book § 23-29 reads as follows:The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:1) the court lacks jurisdiction;2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition;4) the claims asserted in the petition are moot or premature;(5) any other legally sufficient ground for dismissal of the petition exists.

FN2. Practice Book, 1978-1997, § 532 provided:The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash.   On such a motion the allegations of the petition are deemed admitted.   The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return..  FN2. Practice Book, 1978-1997, § 532 provided:The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash.   On such a motion the allegations of the petition are deemed admitted.   The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.

FN3. This court notes for the purposes of determining the merits of the motion to dismiss, it is not making a finding that there was clear and convincing evidence.   The court is stating the position of the respondent Ganim.   The court acknowledges that when considering a motion to dismiss under § 23-29, the allegations contained in the petition are deemed admitted, and resorting to facts outside those allegations in the petition is prohibited.  Liljedahl Bros., Inc. v. Grigsby, supra, 215 Conn. 348..  FN3. This court notes for the purposes of determining the merits of the motion to dismiss, it is not making a finding that there was clear and convincing evidence.   The court is stating the position of the respondent Ganim.   The court acknowledges that when considering a motion to dismiss under § 23-29, the allegations contained in the petition are deemed admitted, and resorting to facts outside those allegations in the petition is prohibited.  Liljedahl Bros., Inc. v. Grigsby, supra, 215 Conn. 348.

FN4. The December 10, 2007 probate court hearing was recorded and transcripts of that hearing have recently been provided to this court..  FN4. The December 10, 2007 probate court hearing was recorded and transcripts of that hearing have recently been provided to this court.

FN5. Sec. 45a-656(a) reads as follows:(a) The conservator of the person shall have the duties and authority expressly assigned by the court pursuant to section 45a-650, which duties and authority may include:  (1) The duty and responsibility for the general custody of the conserved person;  (2) the authority to establish the conserved person's residence within the state, subject to the provisions of section 45a-656b;  (3) the authority to give consent for the conserved person's medical or other professional care, counsel, treatment or service;  (4) the duty to provide for the care, comfort and maintenance of the conserved person;  and (5) the duty to take reasonable care of the conserved person's personal effects..  FN5. Sec. 45a-656(a) reads as follows:(a) The conservator of the person shall have the duties and authority expressly assigned by the court pursuant to section 45a-650, which duties and authority may include:  (1) The duty and responsibility for the general custody of the conserved person;  (2) the authority to establish the conserved person's residence within the state, subject to the provisions of section 45a-656b;  (3) the authority to give consent for the conserved person's medical or other professional care, counsel, treatment or service;  (4) the duty to provide for the care, comfort and maintenance of the conserved person;  and (5) the duty to take reasonable care of the conserved person's personal effects.

FN6. The petition alleges that “[i]n spite of any statements contained in this petition regarding the conservator ․ he [conservator] is not a true party to the dispute between Ms. Sullivan and the court of probate..  FN6. The petition alleges that “[i]n spite of any statements contained in this petition regarding the conservator ․ he [conservator] is not a true party to the dispute between Ms. Sullivan and the court of probate.

FN7. Sec. 17a-686a.   Application for writ of habeas corpus for confined individual.An individual confined in a hospital or inpatient treatment facility for treatment of alcohol or drug dependency in this state may seek a writ of habeas corpus in the Superior Court.   The question of the legality of such confinement shall be determined by the court or judge issuing such writ.   The writ shall be directed to the superintendent or director of the hospital or treatment facility and, if illegality or invalidity of the commitment is alleged in such writ, a copy shall also be directed to the judge of the committing court as to such claim.   Such judge shall be represented by the state's attorney for the judicial district in which such committing court is located.   If the court or judge before whom such case is brought decides that the confinement is not illegal, such decision shall not bar issuance of such writ again, provided it is claimed that such individual is no longer subject to the condition for which the individual was confined.   Such writ may be sought by the confined individual or on behalf of the individual by any relative, friend or person interested in the individual's welfare.   Court fees may not be charged against the superintendent or director of the hospital or the judge..  FN7. Sec. 17a-686a.   Application for writ of habeas corpus for confined individual.An individual confined in a hospital or inpatient treatment facility for treatment of alcohol or drug dependency in this state may seek a writ of habeas corpus in the Superior Court.   The question of the legality of such confinement shall be determined by the court or judge issuing such writ.   The writ shall be directed to the superintendent or director of the hospital or treatment facility and, if illegality or invalidity of the commitment is alleged in such writ, a copy shall also be directed to the judge of the committing court as to such claim.   Such judge shall be represented by the state's attorney for the judicial district in which such committing court is located.   If the court or judge before whom such case is brought decides that the confinement is not illegal, such decision shall not bar issuance of such writ again, provided it is claimed that such individual is no longer subject to the condition for which the individual was confined.   Such writ may be sought by the confined individual or on behalf of the individual by any relative, friend or person interested in the individual's welfare.   Court fees may not be charged against the superintendent or director of the hospital or the judge.

FN8. Sec. 17a-524.  (Formerly Sec. 17-201).   Writ of habeas corpus.Each person confined in a hospital for psychiatric disabilities in this state shall be entitled to the benefit of the writ of habeas corpus, and the question of the legality of such confinement in a hospital for psychiatric disabilities shall be determined by the court or judge issuing such writ.   Such writ shall be directed to the superintendent or director of the hospital and, if illegality or invalidity of the commitment is alleged in such writ, a copy shall also be directed to the judge of the committing court as to such claim, and such judge shall be represented by the state's attorney for the judicial district wherein such committing court is located.   If the court or judge before whom such case is brought decides that the confinement is not illegal, such decision shall be no bar to the issuing of such writ a second time, if it is claimed that such person is no longer subject to the condition for which he was confined.   Such writ may be applied for by such confined person or on his behalf by any relative, friend or person interested in his welfare.   No court fees shall be charged against the superintendent or director of the hospital or the judge..  FN8. Sec. 17a-524.  (Formerly Sec. 17-201).   Writ of habeas corpus.Each person confined in a hospital for psychiatric disabilities in this state shall be entitled to the benefit of the writ of habeas corpus, and the question of the legality of such confinement in a hospital for psychiatric disabilities shall be determined by the court or judge issuing such writ.   Such writ shall be directed to the superintendent or director of the hospital and, if illegality or invalidity of the commitment is alleged in such writ, a copy shall also be directed to the judge of the committing court as to such claim, and such judge shall be represented by the state's attorney for the judicial district wherein such committing court is located.   If the court or judge before whom such case is brought decides that the confinement is not illegal, such decision shall be no bar to the issuing of such writ a second time, if it is claimed that such person is no longer subject to the condition for which he was confined.   Such writ may be applied for by such confined person or on his behalf by any relative, friend or person interested in his welfare.   No court fees shall be charged against the superintendent or director of the hospital or the judge.

FN9. General Statutes § 1-2z reads as follows:The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered..  FN9. General Statutes § 1-2z reads as follows:The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

FN10. It is noted that General Statutes § 17a-686 regarding applications for commitment, recommitment and their terminations provides that the Attorney General shall represent the administrator of a treatment facility operated by the department.  Section 17a-686(e) provides:In any contested proceeding for commitment, recommitment, or termination and discharge, the Attorney General shall, upon request, represent the administrator of a treatment facility operated by the department.Id..  FN10. It is noted that General Statutes § 17a-686 regarding applications for commitment, recommitment and their terminations provides that the Attorney General shall represent the administrator of a treatment facility operated by the department.  Section 17a-686(e) provides:In any contested proceeding for commitment, recommitment, or termination and discharge, the Attorney General shall, upon request, represent the administrator of a treatment facility operated by the department.Id.

FN11. General Statutes § 45-186(b) reads as follows:(b) Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party.   The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal.   Notwithstanding the provisions of section 52-50, service of the copy of the complaint shall be by state marshal, constable or an indifferent person.   Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being served or at the address for the interested party on file with said court of probate, except that service on a respondent or conserved person in an appeal from an action under part IV of chapter 802h shall be in hand by a state marshal, constable or an indifferent person.”.  FN11. General Statutes § 45-186(b) reads as follows:(b) Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party.   The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal.   Notwithstanding the provisions of section 52-50, service of the copy of the complaint shall be by state marshal, constable or an indifferent person.   Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being served or at the address for the interested party on file with said court of probate, except that service on a respondent or conserved person in an appeal from an action under part IV of chapter 802h shall be in hand by a state marshal, constable or an indifferent person.”

FN12. General Statutes § 45a-656b controls how and when a conservator may change a conserved person's residence or placement in an institution for long-term care..  FN12. General Statutes § 45a-656b controls how and when a conservator may change a conserved person's residence or placement in an institution for long-term care.

FN13. General Statutes § 52-466 in relevant parts reads as follows:(a)(1) An application for a writ of habeas corpus, other than an application pursuant to subdivision (2) of his subsection, shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty.(2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court, or to a judge thereof, for the judicial district of Tolland.(b) The application shall be verified by the affidavit of the applicant for the writ alleging that he truly believes that the person on whose account the writ is sought is illegally confined or deprived of his liberty.(c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ.   If the officer fails to make immediate return of the writ, with his actions thereon, he shall pay fifty dollars to the person so held in custody ․.  FN13. General Statutes § 52-466 in relevant parts reads as follows:(a)(1) An application for a writ of habeas corpus, other than an application pursuant to subdivision (2) of his subsection, shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty.(2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court, or to a judge thereof, for the judicial district of Tolland.(b) The application shall be verified by the affidavit of the applicant for the writ alleging that he truly believes that the person on whose account the writ is sought is illegally confined or deprived of his liberty.(c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ.   If the officer fails to make immediate return of the writ, with his actions thereon, he shall pay fifty dollars to the person so held in custody ․

FN14. Practice Book Sec. 23-21 regarding Habeas Corpus reads as follows:Except as otherwise provided herein, the procedures set forth in Sections 23-22 through 23-42 shall apply to any petition for a writ of habeas corpus which sets forth a claim of illegal confinement.   Such procedures shall not apply to any petition for a writ of habeas corpus brought to determine the custody and visitation of children or brought by or on behalf of a person confined in a hospital for mental illness..  FN14. Practice Book Sec. 23-21 regarding Habeas Corpus reads as follows:Except as otherwise provided herein, the procedures set forth in Sections 23-22 through 23-42 shall apply to any petition for a writ of habeas corpus which sets forth a claim of illegal confinement.   Such procedures shall not apply to any petition for a writ of habeas corpus brought to determine the custody and visitation of children or brought by or on behalf of a person confined in a hospital for mental illness.

FN15. The 2nd Circuit Court of Appeals additionally certified questions to the Connecticut Supreme Court regarding quasi-judicial immunity as to the conservator, the attorney for the conserved person and the nursing home..  FN15. The 2nd Circuit Court of Appeals additionally certified questions to the Connecticut Supreme Court regarding quasi-judicial immunity as to the conservator, the attorney for the conserved person and the nursing home.

FN16. It is noted that the petitioner has not raised an objection to the use of a motion to dismiss by Ganim..  FN16. It is noted that the petitioner has not raised an objection to the use of a motion to dismiss by Ganim.

Arnold, Richard E., J.