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Trapp v. State, Office of Public Advocacy (8/30/2002) sp-5616
Trapp v. State, Office of Public Advocacy (8/30/2002) sp-5616
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SUSAN TRAPP, )
) Supreme Court No. S-10043
Appellant, )
) Superior Court No.
v. ) 3AN-00-6545 CI
)
STATE OF ALASKA, OFFICE OF ) O P I N I O N
PUBLIC ADVOCACY, )
)
Appellee. ) [No. 5616 - August 30, 2002]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Ethan G. Schutt, Dorsey &
Whitney LLP, Anchorage, for Appellant.
Venable Vermont, Jr., Assistant Attorney
General, Anchorage, Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
The question in this case is whether a conservator is
shielded by absolute quasi-judicial immunity from claims asserted
by her ward. We answer "no" because the conservatorship statute
permits such claims.
Facts and Proceedings
In 1995 the superior court found Susan Trapp partially
incapacitated and appointed the Office of Public Advocacy as her
conservator. In 2000 Trapp filed suit, pro se, against OPA,
claiming that its employees had intentionally or negligently
withheld funds which were meant for Trapp's shelter, food, and
clothing, thereby placing her life in jeopardy; told other
agencies not to help Trapp or provide her with services, thereby
violating its duty of confidentiality; and defamed her. She
sought both injunctive relief and monetary damages.1
OPA moved to dismiss the suit, asserting absolute quasi-
judicial immunity with respect to all claims. Trapp opposed the
motion, arguing that under the applicable statute conservators
are liable to their wards for breaches of duty. The court
granted OPA's motion, ruling that the statute does not provide
for claims by wards against conservators.
Arguments on Appeal
On appeal Trapp argues that absolute quasi-judicial
immunity should not be afforded to conservators for the following
reasons:
(1) a conservator's duties do not resemble protected
judicial functions;
(2) a conservator does not perform duties intimately
related to the judicial process because
(a) a conservator's duties are not performed on behalf
of a court,
(b) a conservator is not a neutral third party,
(c) a conservator does not provide the court with pre-
decision assistance, and
(d) a conservator acts outside the supervision and
direction of the court;
(3) quasi-judicial immunity leaves wards without protection
against abuses by conservators and such abuses are best deterred
and prevented by an action for damages;
(4) absolute quasi-judicial immunity conflicts with the
conservatorship statute; and
(5) even if there is quasi-judicial immunity generally,
such immunity should not extend to intentional or malicious
wrongs.
OPA disputes each of these points. We address only the fourth
point and conclude that it is well taken. This conclusion moots
Trapp's other arguments.
The Conservatorship Statute Precludes Absolute Immunity for
Conservators
Judges are shielded by absolute immunity from civil
actions for damages arising out of their judicial acts. Judicial
immunity "serves the twin purposes of protecting the finality of
judgments and preserving judicial independence `by insulating
judges from vexatious actions prosecuted by disgruntled
litigants.' "2 Judicial immunity is "for the benefit of the
public, whose interest it is that the judges should be at liberty
to exercise their functions with independence and without fear of
consequences."3
Judicial immunity is an absolute form of immunity; it
applies "no matter how erroneous the act may have been, how
injurious its consequences, how informal the proceeding, or how
malicious the motive. Only judicial actions taken in the clear
absence of all jurisdiction will deprive a judge of absolute
immunity."4 Absolute judicial immunity is extended not only to
judges but to others who perform duties that are sufficiently
related to the judicial process. The clearest case for quasi-
judicial immunity is presented in instances where some aspect of
the court's adjudicative responsibility is delegated to another
official such as a master or referee.5 And in Alaska,6 as well
as in almost all other jurisdictions, neutral court-appointed
experts are also shielded by absolute quasi-judicial immunity.7
But with respect to the question as to whether a conservator or
other person appointed by a court to manage the person or
property of a ward or the property of an estate enjoys absolute
immunity, there is no similar unanimity.
Cases applying a rule of absolute immunity to such
officials include Cok v. Cosentino;8 New Alaska Development Corp.
v. Guetschow;9 Mullis v. United States Bankruptcy Court for the
District of Nevada;10 and Mosher v. Saalfeld.11 Cases denying
absolute immunity to such officials include Frey v. Blanket
Corp.;12 Collins ex rel. Collins v. Tabet;13 and Edwards v. Pena.14
We have no occasion here to choose between these lines
of authority, or attempt to reconcile them, because absolute
immunity for conservators is, in our view, precluded by the
conservatorship statute, chapter 26 of title 13 of the Alaska
Statutes. The most relevant section is AS 13.26.305 which
provides:
(a) Unless otherwise provided in the
contract, a conservator is not individually
liable on a contract properly entered into in
a fiduciary capacity in the course of
administration of the estate unless the
conservator fails to reveal the
representative capacity and identify the
estate in the contract.
(b) The conservator is individually
liable for obligations arising from ownership
or control of property of the estate or for
torts committed in the course of
administration of the estate only if
personally at fault.
(c) Claims based on contracts entered
into by a conservator in a fiduciary
capacity, on obligations arising from
ownership or control of the estate, or on
torts committed in the course of
administration of the estate may be asserted
against the estate by proceeding against the
conservator in the fiduciary capacity,
whether or not the conservator is
individually liable for them.
(d) Any question of liability between
the estate and the conservator individually
may be determined in a proceeding for
accounting, surcharge, or indemnification, or
other appropriate proceeding or action.
Subsection (b) explicitly makes conservators liable for torts
committed in the course of administration where they are
personally at fault, and subsection (d) permits claims asserted
by the estate against the conservator individually to be
determined either in the conservatorship proceeding or in another
appropriate action.
The trial court ruled that subsection .305(b) read in
the context of the other subsections of section .305 "addresses
the claims of third parties as against the estate or conservator,
and does not provide a cause of action for the protected person
against the conservator." We do not so interpret section .305.
While subsections (a) and (c) concern claims of third parties
against the estate or the conservator, subsection (b) is not so
limited. And subsection (d) explicitly contemplates the
adjudication of claims by the estate against the conservator
individually.
As to subsection (d), OPA argues that liability
questions between the conservator and the ward are meant to be
confined to the conservatorship proceedings and that in light of
the court's power in such proceedings "there is no need to
provide for tort lawsuits by the protected person against her
conservator . . . ." OPA's assertion that the court in
conservatorship proceedings can fairly adjudicate a claim by the
ward against her conservator is doubtless true, for the court can
apply discovery and other rules of civil procedure in such
proceedings in order to ensure a fair adjudication.15 But the
relevant point for the present case is not in which forum
liability claims against a conservator may be adjudicated, but
whether such claims can be maintained at all. Subsection .305(d)
plainly allows such claims.
Other sections of the conservatorship statute also
suggest that wards may pursue claims against conservators.
Alaska Statute 13.26.245 provides that "[i]n the exercise of
powers, a conservator shall act as fiduciary and shall observe
the standards of care applicable to trustees under AS 13.36.225 -
13.36.290." The phrase "standard of care" is generally used to
define the circumstances in which a party is liable in tort, and
fiduciaries are generally liable to those whom they are charged
with protecting when they breach their fiduciary duties.16
Alaska Statute 13.26.215 authorizes the court to
require a conservator to furnish a bond "conditioned upon
faithful discharge of all duties of the trust according to law."17
Subsection .220(a)(1) provides that the conservator is jointly
and severally liable with the sureties on the bond; subsection
(2) of section .220(a) provides that the bond may be enforced in
the court which appointed the conservator "in any proceeding
pertaining to the fiduciary duties of the conservator"; and
subsection (3) provides that "any interested person" can initiate
a proceeding against the surety. The statutory bond requirement
thus contemplates that claims for money damages may be brought
for breaches of fiduciary duties against the conservator and the
surety by "any interested person." The statute does not suggest
that the latter category does not include the ward. To the
contrary, the ward is typically the person most directly affected
by a breach of fiduciary duty.
Based then on the statute governing conservatorships,
we conclude that conservators are not shielded by absolute quasi-
judicial immunity. For this reason the judgment of the superior
court is REVERSED and this case must be REMANDED for further
proceedings consistent with this opinion.
_______________________________
1Her full complaint reads as follows:
1. [OPA] did intentionally with hold funds which were
meant for shelter, food and clothing and intern placed my
life in jeopardy.
2. That [OPA] had a responsibility as a court
assigned conservator to make funds provided by social
security available to me for food clothing and shelter.
This was not done frequently sometimes by intent and some
times simply through neglect and a cold disregard to my
safety.
3. That [OPA] did tell other agencies not to help me
or provide services and illegally broke Federal laws of
confidentiality.
4. That [OPA] was intentionally verbally abuse to me
and many other of their clients with a callous disregard to
their disability situations. Frequently causing deep
humiliation and embarrassment in front of groups of people
in the front office.
5. That [OPA] had record of how seriously ill I was,
disregarded that . . . and frequently caused me to be
homeless by telling others how "hard I was to handle" and
setting up a self fulfilling prophecy. Being homeless in
Anchorage is very life threatening but [OPA] would say it
was no big deal "sleep in the streets[.]"
6. I want to take this to court where I can prove my
alligations through records of [OPA] and through witness.
Even through people who work at office of public advocacy
and are willing to state what kind of behavior they have
seen displayed towards clients.
7. I want to this to go to civil litigation as soon
as possible: to stop the abuse and to have monetary
compensation for the years of degradation by a group of
people who were supposed to be in a helping role. This
system of abuse almost cost me my life . . . and I can prove
this in court.
2Lythgoe v. Guinn, 884 P.2d 1085, 1086-87 (Alaska 1994) (quoting
Forrester v. White, 484 U.S. 219, 225 (1988)).
If judges were personally liable for
erroneous decisions, the resulting avalanche
of suits, most of them frivolous but
vexatious, would provide powerful incentives
for judges to avoid rendering decisions
likely to provoke such suits. The resulting
timidity would be hard to detect or control,
and it would manifestly detract from
independent and impartial adjudication.
Id. at 1087 (quoting Forrester, 484 U.S. at 226-27).
3Id. (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).
4Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (citations
omitted). Absolute judicial immunity is to be contrasted with
qualified public official immunity, under which public officials
are protected from liability for their discretionary acts within
the scope of their authority so long as their acts are in good
faith and are neither malicious nor corrupt. Pauley v. Anchorage
Sch. Dist., 31 P.3d 1284, 1286 (Alaska 2001). Whether some form
of qualified public official immunity applies to OPA conservators
is not at issue in this appeal. We express no opinion on this
question.
5See Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452 (9th
Cir. 1993) (per curiam) (special master); Smallwood v. United
States, 358 F. Supp. 398 (E.D. Mo. 1973) (referee in bankruptcy);
see also Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980)
(commissioner in property partition proceeding).
6Lythgoe, 884 P.2d at 1090.
7See cases cited in Lythgoe, 884 P.2d at 1087 n.1.
8876 F.2d 1 (1st Cir. 1989) (conservator).
9869 F.2d 1298 (9th Cir. 1989) (court-appointed receiver).
10828 F.2d 1385 (9th Cir. 1987) (bankruptcy trustee).
11589 F.2d 438 (9th Cir. 1978) (per curiam) (trust officer
appointed to conserve the estate of an incompetent).
12582 N.W.2d 336 (Neb. 1998) (guardian for incapacitated person).
13806 P.2d 40 (N.M. 1991) (guardian ad litem in role as advocate
for infant). Here the court compared the guardian ad litem's
liability to that of a conservator under the applicable New
Mexico statute, accepting as a given conservator liability:
Fiduciaries, of course, are subject to
liability to their wards for harm resulting
from ordinary negligence in the discharge of
their fiduciary duties; if anything, they are
charged with a higher standard of care than
are persons who do not owe fiduciary duties.
See Pino v. Budwine, 568 P.2d 586 (1977);
Estate of Guerra v. New Mexico Human Servs.
Dep't, 633 P.2d 716 (N.M. App. 1981)
(guardian accepting assets of ward held to
stringent and high standards of conduct).
Id. at 49 (emphasis in original).
1438 S.W.3d 191 (Tex. App. 2001) (guardian appointed to conserve
the estate of incapacitated person).
15See Alaska R. Prob. P. 1(e).
16See Collins, 806 P.2d at 49.
17AS 13.26.215(a).
