The Clerk of Court is directed to amend the official caption in this case to conform to *

the listing of the parties above. James J. Lawlor has been removed, as he was initially a

defendant below but all claims against him were withdrawn at the District Court level. See J.A. 1

(revised complaint).

-1-

08-2626-cv

Gross v. Rell

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 _______________

4

5 August Term, 2008

6

7 (Argued: May 20, 2009 Question Certified: October 27, 2009)

8

9 Docket No. 08-2626-cv

10 _______________

11

12 DANIEL GROSS,

13 Plaintiff,

14

15 CAROLYN DEE KING,

16 Plaintiff-Appellant,

17

18 —v.—

19

20 M. JODI RELL, GOVERNOR, STATE OF CONNECTICUT, IN HER OFFICIAL CAPACITY; MAGGIE

21 EWALD, FORMER ACTING LONG-TERM CARE OMBUDSMAN OF THE CONNECTICUT DEPARTMENT

22 OF SOCIAL SERVICES, IN HER INDIVIDUAL CAPACITY; THOMAS P. BRUNNOCK, PROBATE JUDGE

23 FOR THE DISTRICT OF WATERBURY, IN HIS INDIVIDUAL CAPACITY; KATHLEEN DONOVAN, IN HER

24 INDIVIDUAL CAPACITY; JONATHAN NEWMAN, IN HIS INDIVIDUAL CAPACITY; GROVE MANOR

25 NURSING HOME, INC., IN ITS INDIVIDUAL CAPACITY,

*

26 Defendants-Appellees.

27

28 _______________

29 B e f o r e :

30 JACOBS, Chief Judge, STRAUB AND HALL, Circuit Judges.

31 _______________
-2-

1 Appeal from dismissal of all claims as to all defendants in civil rights lawsuit arising out

2 of the alleged mistreatment of Plaintiff Daniel Gross. An involuntary conservatorship was

3 instituted as to Gross by the Waterbury, Connecticut Probate Court; the conservatorship was

4 ended when a Connecticut Superior Court judge granted Gross’s petition for a writ of habeas

5 corpus, finding that the conservatorship should not have been imposed. Gross subsequently sued

6 the Probate Court judge, the conservator, the court-appointed attorney, the nursing home in

7 which he was placed, and various state officials. The U.S. District Court for the District of

8 Connecticut (Vanessa L. Bryant, Judge) dismissed the complaint, primarily on the basis of

9 judicial immunity (as to the judge) and quasi-judicial immunity (as to the conservator, attorney,

10 and nursing home). Claims against the state officials were dismissed for procedural reasons.

11 We affirm the dismissal of claims against the state officials, the tort claims against the

12 nursing home, and the finding of absolute judicial immunity as to the judge. However,

13 Connecticut law on quasi-judicial immunity, which applies to state-law claims, is unclear. 

14 Therefore, we certify questions to the Connecticut Supreme Court regarding quasi-judicial

15 immunity. 

16 As to the federal claims: our circuit is bound to apply the federal law of quasi-judicial

17 immunity. However, in this case and on these facts, the factors we must consider directly

18 implicate unsettled questions of state law. Therefore, we certify a question to the Connecticut

19 Supreme Court, asking for its guidance as to those factors. Upon receiving the Connecticut

20 Supreme Court’s response, we will decide the federal question.

21 Affirmed in part, Certified to the Connecticut Supreme Court in part.

22 _________________________________
-3-

1 SALLY R. ZANGER, Connecticut Legal Rights Project, Inc., Middletown, CT, for Plaintiff2 Appellant. 

3

4 GREGORY T. D’AURIA, Associate Attorney General for the State of Connecticut (Richard

5 Blumenthal, Attorney General, Jane R. Rosenberg, Assistant Attorney General, Clare

6 Kindall, Assistant Attorney General, of counsel), Hartford, CT, for Defendants-Appellees

7 M. Jodi Rell, Maggie Ewald, and Thomas P. Brunnock.

8

9 RICHARD A. ROBERTS (Nadine M. Pare, James R. Fiore, of counsel), Nuzzo & Roberts

10 L.L.C., Cheshire, CT, for Defendant-Appellee Kathleen Donovan.

11

12 LOUIS B. BLUMENFELD (Lorinda S. Coon, of counsel), Cooney, Scully and Dowling,

13 Hartford, CT, for Defendant-Appellee Jonathan Newman.

14

15 JEFFREY R. BABBIN, Wiggin and Dana, LLP, New Haven, CT, for Defendant-Appellee

16 Grove Manor Nursing Home, Inc.

17 _________________________________

18 STRAUB, Circuit Judge:

19 For nearly a year beginning in 2005, Daniel Gross, an octogenarian, had a conservatorship

20 imposed for his estate and person against his will. He was kept in a nursing home for ten

21 months, until a Superior Court judge in Connecticut, citing “a terrible miscarriage of justice,”

22 granted his petition for a writ of habeas corpus and ordered him released. This lawsuit stems

23 from that unfortunate series of events.

24 It is alleged that a probate court judge signed a facially impossible order that did not

25 comply with the law; the court-appointed attorney disregarded Gross’s wishes to return to his

26 home in New York; the court-appointed conservator forcibly kept Gross in a nursing home,

27 against medical advice; and a nursing home housed Gross with a violent roommate who attacked

28 him. The complaint further alleges that defendant Maggie Ewald, Connecticut’s Long-Term

29 Care Ombudsman at the time, did not act on complaints about Gross’s treatment at the nursing

30 home because of concerns about adverse publicity.
-4-

1 These allegations, if true, might make out a case against the defendants. However, Judge

2 Thomas P. Brunnock, Conservator Kathleen Donovan, Attorney Jonathan Newman, and Grove

3 Manor Nursing Home, Inc. (“Grove Manor”) have asserted absolute immunity to suit: Brunnock

4 has asserted judicial immunity and the other three have asserted quasi-judicial immunity. The

5 District Court agreed and dismissed all claims against those defendants. (Claims against

6 Governor M. Jodi Rell and Ewald, as well as certain of Gross’s statutory and tort claims against

7 Grove Manor, were dismissed for various procedural reasons.)

8 The federal common law defense of quasi-judicial immunity applies to Gross’s federal

9 claims, and the similar but distinct state common law defense of quasi-judicial immunity applies

10 to Gross’s state law claims. Connecticut state law is unsettled as to quasi-judicial immunity. 

11 Therefore, we certify questions to the Connecticut Supreme Court on the state law claims.

12 On the federal law claims, we apply the multi-factor test for quasi-judicial immunity set

13 forth by the Supreme Court. However, in this case, application of those factors involves

14 unsettled questions of Connecticut state statutory and common law. Therefore, we ask the

15 Connecticut Supreme Court for its guidance as to these factors. Upon receiving its response, we

16 will decide the federal claims.

17 Quasi-judicial immunity applies only to Donovan, Newman, and Grove Manor. We

18 affirm the grant of judicial immunity as to Brunnock and affirm the dismissal of the other claims.

19 BACKGROUND

20 In 2005, Daniel Gross, a life-long New York resident, was discharged from a hospital in
 As an appellate court, we do not engage in fact-finding. We take all facts and draw all 1

inferences in the light most favorable to appellant, as we must do at the motion to dismiss stage,

although we need not give credence to “pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950

(2009).

 Connecticut’s statutory conservatorship scheme was amended in 2007, after the 2

incidents in this case took place. Unless otherwise specified, this opinion cites to the version of

the statute in place at the relevant time.

We are of the opinion that the 2007 revisions do not affect the underlying issues in this

case regarding quasi-judicial immunity. See, e.g., CONN. GEN. STAT. ANN. § 45a-648(a)-(d)

(West 2008 pocket part) (outlining various provisions for an involuntary conservatorship as to

one who is a non-resident or non-domiciliary); id. § 45a-649a (making various provisions for

representation of a respondent in an involuntary conservatorship proceeding); id. § 45a-650(a)

(specifying that probate court must “require clear and convincing evidence that the court has

jurisdiction, that the respondent has been given notice . . . , and that the respondent has been

advised of the right to retain an attorney”). These changes do not go to the underlying question

here, namely, whether conservators, attorneys, and nursing homes may, as a matter of law, enjoy

quasi-judicial immunity under federal and state common law. So far as we can ascertain, the

questions we are certifying, regarding immunity generally, are unaffected by this revision. In any

event, we have no reason to conclude that this amendment should apply retroactively, and the

parties do not suggest otherwise. 

-5-

1 New York after treatment for a leg infection. Shortly thereafter, he went to Waterbury, 1

2 Connecticut, where his daughter lived, to convalesce. On August 8, 2005, he was admitted to

3 Waterbury Hospital because of complications from his previous treatment. Nine days later, on

4 August 17, 2005, Barbara F. Limauro, a hospital employee, filed an application for appointment

5 of conservator in Waterbury Probate Court. The record does not indicate what prompted

6 Limauro to file this application.

7 The pertinent statute requires the probate court, as a threshold matter, to give the

8 respondent seven days’ notice in any application for an involuntary conservatorship. CONN. GEN.

9 STAT. ANN. § 45a-649(a). In addition, the notice must be served on the respondent or, if doing 2

10 so “would be detrimental to the health or welfare of the respondent,” his attorney. Id. § 45a-
-6-

1 649(a)(1)(A). The statute makes no provision for giving notice to the respondent other than by

2 personal service or service upon his attorney.

3 On August 25, 2005, Judge Thomas P. Brunnock issued an order of notice of a hearing to

4 be held on September 1, 2005, in connection with Limauro’s application. On August 30, 2005,

5 the notice was served on Limauro. However, as the Connecticut Superior Court pointed out in

6 the subsequent habeas proceeding, there was no indication that Gross himself ever received

7 notice of the September 1 proceeding. The parties do not dispute that (1) Gross was entitled to

8 notice of the hearing, (2) he should have been given at least seven days’ notice, pursuant to

9 Section 45a-649(a), and (3) the order dated August 25, 2005, specified that Gross should be

10 served by August 24.

11 Also on August 25, 2005, Brunnock appointed Jonathan Newman to represent Gross in

12 the involuntary conservatorship action. Newman interviewed Gross, who told Newman that he

13 opposed the conservatorship. Newman described Gross as alert and intelligent and stated in a

14 report that Gross wanted to live at home and manage his own affairs. Nevertheless, Newman

15 concluded that he could not “find any legal basis in which to object to the appointment of a

16 conservator of Daniel Gross’ person and estate.” Newman also signed the form “attorney for

17 ward.” The relevant statute defines a “ward” as “a person “for whom involuntary representation

18 is granted” pursuant to statute. CONN. GEN. STAT. ANN. § 45a-644(h) (emphasis added). At the

19 time Newman signed the form, no such representation had been granted; Gross was not a “ward”

20 but rather a “respondent.” Id. § 45a-644(f). 

21 A Superior Court judge would later say that Newman’s conclusion that there was no legal

22 basis for objecting to the involuntary conservatorship “completely blows my mind,” that there
-7-

1 was “[n]o support for it,” and that “it just defies imagination. . . . This was counsel for Mr. Gross

2 and it is obvious to me that he grossly under and misrepresented Mr. Gross at the time.” J.A.

3 115.

4 The respondent also has a right to attend any hearing on the application. CONN. GEN.

5 STAT. ANN. § 45a-649(b)(2). If he wishes to attend “but is unable to do so because of physical

6 incapacity, the court shall schedule the hearing . . . at a place which would facilitate attendance . .

7 . but if not practical, then the judge shall visit the respondent” before the hearing, if he is in the

8 state. Id. (emphasis added). The next section reiterates that a judge could “hold the hearing on

9 the application at a place within the state other than its usual courtroom if it would facilitate

10 attendance by the respondent.” Id. § 45a-650(c). The parties do not dispute that (1) Judge

11 Brunnock never visited Gross, (2) the hearing was not held at a location that would facilitate

12 Gross’s attendance, and (3) Gross was not personally present at the hearing. 

13 Furthermore, Connecticut law at the time only permitted a conservatorship for those who

14 were residing or domiciled in Connecticut, id. § 45a-648(a); Gross was neither a resident nor a

15 domiciliary. It is undisputed that Newman failed to bring this jurisdictional defect to the court’s

16 attention. (As will be explained infra, it was on the basis of this defect that the Connecticut

17 Superior Court eventually granted Gross’s petition for a writ of habeas corpus and held the

18 conservatorship void ab initio.)

19 On September 1, 2005, Brunnock appointed Kathleen Donovan as conservator to manage

20 Gross’s person and estate. Connecticut state law provides that the probate court must require a

21 probate bond and, “if it deems it necessary for the protection of the respondent, [it may] require a

22 bond of any conservator” as well. CONN. GEN. STAT. ANN. § 45a-650(g). Donovan never posted
-8-

1 a bond.

2 A week or two later, Donovan placed Gross in the “locked ward” of Grove Manor

3 Nursing Home. Gross alleges in his complaint that his roommate was a confessed robber who

4 threatened and assaulted him. Gross also claims that Grove Manor, with the knowledge and

5 consent of Donovan, kept him in a room with the violent roommate after it learned of the assault,

6 which was not reported to the police.

7 In April of 2006, Gross was on an authorized day visit to Long Island. While there, he

8 experienced chest pains and was admitted to a hospital. According to the complaint, Donovan

9 came to Long Island with an ambulance and insisted that Gross be returned to Connecticut. 

10 When the doctor indicated that this was medically unwise, Donovan nonetheless removed Gross

11 from the hospital against his wishes and returned him to the locked ward at Grove Manor.

12 Gross alleges in his complaint that there was no reason to put him in the locked ward. He

13 further alleges that Ewald, the state ombudsman, and Donovan, the conservator, were aware of

14 these problems but failed to take steps to alleviate them. The parties do not dispute that Donovan

15 obtained from Brunnock ex parte orders limiting Gross’s contact with family and with counsel;

16 Gross claims that there was no evidence suggesting that such contact was harmful to him. We

17 are very troubled by one such order in particular. According to Gross’s complaint, this order

18 restricted Gross’s daughter’s ability to visit him: the visits were required to be on-premises, only

19 once per day, for no longer than one hour. Strangely, it also prohibits her from bringing “any

20 recording devices (visual and/or audio) into Grove Manor Nursing Home.” The restrictive nature

21 of the order, and the prohibition on the use of recording devices, gives credence to Gross’s

22 allegation that there was a conspiracy to deprive him of his rights — and potentially, to prevent
-9-

1 the exposure of such injustices.

2 On June 9, 2006, Gross filed a petition for a writ of habeas corpus in Connecticut

3 Superior Court. A hearing was held on July 12. Brunnock moved to dismiss, making the (rather

4 remarkable) argument that habeas relief was unnecessary because, if the Probate Court acted

5 without jurisdiction, the conservatorship was void ab initio and Gross could leave Grove Manor

6 at any time. The Superior Court granted the writ:

7 [O]ut of an absolute caution that somebody else may come in and

8 file [an] appearance in this case, I’m going to grant the writ of

9 habeas corpus[;] I’m going to find in accordance with the statute

10 that he has – is and has been, since September 1, been deprived of

11 his liberty. And at the time of his – of his appointment of the

12 conservator of both his person and his estate, Probate Court lacked

13 the jurisdiction on the basis that he was not a domiciliary and/or a

14 resident of the [S]tate of Connecticut. The conservatorship is

15 terminated as a result of the decision on the habeas corpus and Mr.

16 Gross is free to leave here today.

17

18 The court also halted all pending transactions involving Gross’s property, saying “that nothing [is

19 to] be done with the sale of [Gross’s] house in New York,” and that “any previous orders of the

20 Probate Court with reference to that real property in New York are also terminated, so there is

21 nothing in New York.” The Superior Court said there had been “a terrible miscarriage of

22 justice.”

23 Upon returning to New York, Gross found that his house had been, in his words,

24 “ransacked.” The complaint alleges that a chandelier and some furniture were missing. Gross

25 lived independently in his home from the time of his release at least until the time of the

26 complaint, and apparently until the time of his death in 2007.

27 In 2007, plaintiff brought the complaint and the District Court dismissed it as to all
 The statutory claims against the nursing home alleged violations of the Omnibus Budget 3

Reconciliation Act of 1989, 42 U.S.C. § 1396r, and the Patients’ Bill of Rights, CONN. GEN.

STAT. ANN. § 19a-550. 

 The negligent infliction of emotional distress claim against the ombudsman was 4

dismissed because Connecticut state officials have immunity for negligent acts. CONN. GEN.

STAT. ANN. § 4-165. 

-10-

1 defendants. The District Court found that Brunnock was entitled to judicial immunity. The court

2 went on to reason that the conservator, attorney, and nursing home were entitled to immunity

3 because they were serving the judicial process. However, the District Court reasoned that the

4 nursing home was not entitled to derivative, quasi-judicial immunity for discretionary acts that

5 were not performed specifically for the purpose of complying with a Probate Court order. Thus,

6 the nursing home’s decision to leave Gross in a room with his roommate for several days, after

7 his roommate attacked him, was held to be discretionary and not protected by quasi-judicial

8 immunity. This left statutory and tort claims against the nursing home. The District Court 3

9 dismissed the statutory claims on the basis of waiver, leaving only the tort claims, which

10 consisted of claims for intentional and negligent infliction of emotional distress. 

11 The District Court also dismissed all claims against the governor and most claims against

12 the ombudsman, essentially on failure to prosecute or waiver grounds. However, it initially let

13 stand the claims against the ombudsman for failure to investigate complaints about Gross’s

14 detention in the nursing home. Thus, there were two sets of claims remaining: intentional and

15 negligent infliction of emotional distress against the nursing home regarding the violent

16 roommate and intentional infliction of emotional distress against the ombudsman for failure to

17 investigate.4

18 Then, at the end of a telephone conference about discovery and the course of the lawsuit,
 We note that the intentional infliction of emotional distress claim against Ewald and the 5

nursing home, and the negligent infliction of emotional distress claim against the nursing home,

were dismissed without prejudice for want of jurisdictional minimum. These claims may be

reasserted if quasi-judicial immunity does not apply and the claims as to Donovan, Newman, and

Grove Manor are reinstated. They may also be reasserted in a separate action in any event.

Additionally, as noted earlier, James J. Lawlor (Connecticut’s Probate Court

Administrator) is listed in the caption; however, the revised complaint asserts no claims against

him.

-11-

1 the District Court announced that it did not think those remaining claims would exceed $75,000

2 and said it would dismiss the case. Counsel did not object to this dismissal, and those claims

3 were dismissed without prejudice. Once these were dismissed, there were no remaining claims. 

4 Gross’s timely appeal followed.

5 DISCUSSION

6 The main issue in this case pertains to judicial and quasi-judicial immunity. For the

7 reasons described below, Brunnock is entitled to judicial immunity. However, we certify to the

8 Connecticut Supreme Court certain questions relating to quasi-judicial immunity as to the

9 conservator, the attorney, and the nursing home. We affirm the District Court’s dismissal of all

10 other claims as to Rell and Ewald and the statutory claims against the nursing home. We note at 5

11 the outset that, although we affirm the District Court’s dismissal of many claims, we do not

12 condone the actions of the defendants. 

13 I. An Overview of Judicial and Quasi-Judicial Immunity

14 A. In General

15 In this case, there are several intersecting issues. The first question is whether defendants

16 Brunnock, Donovan, Newman, and Grove Manor may assert judicial or quasi-judicial immunity

17 as a defense. The second question, assuming immunity applies, pertains to the scope of that
-12-

1 immunity. Finally, as to each of the defendants and claims pled in this case, there is the question

2 of whether federal or state law on immunity governs. The defendants’ briefs — and, to be sure,

3 some of the cases in this area — either blur, or do not recognize, these distinctions.

4 Gross is asserting federal and state law claims against state officials. The doctrine of

5 judicial and quasi-judicial immunity is, in the main, a creation of the U.S. Supreme Court with

6 regard to federal claims and thus a federal law doctrine. The cases support employing the federal

7 defense of quasi-judicial immunity as against federal claims. However, Gross had also pled state

8 law claims against state defendants. Connecticut has adopted tests for judicial and quasi-judicial

9 immunity that are nearly identical to the federal law tests. However, the state law doctrine is

10 conceptually distinct from the federal law doctrine. 

11 With regard to the state law claims, we recognize the uncertainty regarding the state law

12 doctrine of quasi-judicial immunity and certify questions to the Connecticut Supreme Court as to

13 the availability of immunity. Normally, we would apply federal law to the federal claims and

14 simply decide them. However, in this case, the federal test involves applying the so-called

15 Cleavinger factors. See Cleavinger v. Saxner, 474 U.S. 193 (1985). These factors — which

16 inquire into the nature of the actor in the judicial system, the existence of safeguards, the role of

17 precedent, and so on — implicate unsettled questions of state law. Therefore, we ask the

18 Connecticut Supreme Court for its guidance as to those factors. After the court responds, we will

19 make the ultimate determination, as a matter of federal law, of whether immunity applies. 

20 B. Applicable Legal Standards

21 Defendant Brunnock asserts the defense of judicial immunity, while defendants Donovan,

22 Newman, and Grove Manor assert the defense of quasi-judicial immunity. The first, threshold
-13-

1 question is whether these defendants may assert these defenses at all. The cases indicate that the

2 federal common law on judicial immunities applies even to state officials when they are sued in

3 federal court on federal claims. See Pierson v. Ray, 386 U.S. 547 (1967) (§ 1983 action against

4 local police officers and judges); Tucker v. Outwater, 118 F.3d 930 (2d Cir), cert. denied, 522

5 U.S. 997 (1997) (§ 1983 action against New York town justice). We apply this federal test even

6 when the substantive inquiry involves state law. See Tucker, 118 F.3d at 932 (noting that

7 whether the judge “acted in the clear absence of all jurisdiction” turned on New York law

8 regarding the scope of the judge’s jurisdiction); Huminski v. Corsones, 396 F.3d 53, 76 (2d Cir.

9 2005) (noting, in a § 1983 action against state judges, that courts “look to state law to determine

10 whether [the judges] acted within their jurisdiction and . . . as to whether they acted . . . in their

11 judicial capacities,” and then applying the federal law test for judicial immunity). As we describe

12 below, we may apply settled federal law to dispose of the question of judicial immunity as to

13 Brunnock with regard to federal claims.

14 In this case, federal jurisdiction over the state-law claims against Brunnock were based on

15 diversity jurisdiction. Diversity of citizenship cases, though brought pursuant to federal subject

16 matter jurisdiction, are decided on the basis of state substantive law. Krauss v. Manhattan Life

17 Ins. Co. of N.Y., 643 F.2d 98, 100 (2d Cir. 1981). Therefore, as to those claims, we look to

18 Connecticut law to determine if judges enjoy immunity and, if so, under what circumstances. 

19 Connecticut has a doctrine of judicial immunity, which is, in all respects relevant here, identical

20 to the federal test. See Shay v. Rossi, 253 Conn. 134, 170 (2000) (citing Stump v. Sparkman, 435

21 U.S. 349, 364 (1978)), overruled on other grounds, Miller v. Egan, 265 Conn. 301 (2003);
-14-

1 Leseberg v. O’Grady, 115 Conn. App. 18, 22 (2009) (citing Mireles v. Waco, 502 U.S. 9, 11-12

2 (1991)). Therefore, because Connecticut law is clear as to judicial immunity, we may decide that

3 question as well.

4 As to the remaining defendants, the issue is closer. Donovan, Newman, and Grove

5 Manor are asserting not judicial immunity, but quasi-judicial immunity. In this context, the U.S.

6 Supreme Court has set forth a “functional” test that is binding on this court on matters of federal

7 law. See Cleavinger, 474 U.S. at 201-02 (explaining that quasi-judicial immunity is determined

8 by a functional approach, in light of several enumerated factors); see also Butz v. Economou, 438

9 U.S. 478, 511-12 (1978) (describing the functional approach). We clarify now that the federal

10 law on quasi-judicial immunity applies to state officials sued in federal court on federal claims. 

11 Courts have so held in the context of judicial immunity. Cf. Pierson, 386 U.S. 547; Tucker, 118

12 F.3d 930. Judicial and quasi-judicial immunity are both absolute immunities. See Mitchell v.

13 Forsyth, 472 U.S. 511, 521 (1985) (noting that both are absolute immunities); but see Kalina v.

14 Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring) (noting that, historically, quasi15 judicial immunity “was more akin to what we now call ‘qualified,’ rather than absolute,

16 immunity”). We discern no reason to treat them differently with regard to choice of law

17 questions. Thus, federal law on quasi-judicial immunity, and specifically, the functional

18 approach specified in Cleavinger, applies to Gross’s federal claims against Donovan, Newman,

19 and Grove Manor. 

20 However, again because our jurisdiction over state claims is grounded in diversity of

21 citizenship, state substantive law applies to Gross’s state-law claims against Donovan and
 As we explain infra, all state law claims against the nursing home have been dismissed. 6

Therefore, there is no need to decide whether a nursing home may raise the defense of quasijudicial immunity under state law. We will, of course, have to decide the question as a matter of

federal law with respect to the federal claims. 

-15-

1 Newman. See, e.g., Bonime v. Avaya, Inc., 547 F.3d 497, 501 n.4 (2d Cir. 2008). Once again, 6

2 we look to Connecticut law to determine if conservators and court-appointed attorneys for

3 conservatees are entitled to absolute quasi-judicial immunity, and, if so, under what

4 circumstances. Connecticut law, like federal law, employs a “functional” approach to quasi5 judicial immunity. See Carrubba v. Moskowitz, 274 Conn. 533, 542-43 (2005) (employing a test

6 derived from Butz, 438 U.S. at 513-17). Carrubba involved state claims (emotional distress and

7 malpractice) against a court-appointed counsel for a minor child. Id. at 536. The Connecticut

8 Supreme Court noted that Butz involved claims brought under federal law pursuant to § 1983. 

9 See id. at 542. However, the Carrubba court did not suggest that the test should be any different

10 when state law claims were at issue, as they were in that case. See id. (stating that it was

11 adopting the Supreme Court’s test for quasi-judicial immunity to determine whether attorneys

12 appointed as counsel for minor children “should be accorded absolute immunity under

13 [Connecticut] state common law”).

14 Thus, in the normal course, to determine whether quasi-judicial immunity extends to

15 Donovan and Newman, we would simply apply Cleavinger to test the validity of the quasi16 judicial immunity defense to the federal law claims and the similar Carrubba functional analysis

17 in connection with the state law claims. However, in this particular case and on these facts, both

18 analyses intersect unsettled questions of state law. First, as to the quasi-judicial immunity
-16-

1 defense regarding state law claims: no Connecticut case squarely addresses whether conservators

2 and court-appointed attorneys for conservatees may enjoy quasi-judicial immunity. The most

3 analogous case pertains only to attorneys appointed as counsel for minor children, see Carrubba,

4 274 Conn. 533, and it is not sufficiently similar to this case for us to determine with confidence

5 what state law on this point is. Therefore, we certify questions to the Connecticut Supreme Court

6 so that it may decide whether conservators and court-appointed attorneys for conservatees may

7 assert quasi-judicial immunity as to state claims, and the scope of any such immunity, as a matter

8 of state law. The state court’s pronouncement as to those questions will be final.

9 As to the quasi-judicial immunity defense to the federal law claims, Cleavinger instructs

10 courts to analyze various factors, described infra, in determining whether quasi-judicial

11 immunity applies. Cleavinger, 474 U.S. at 201-02. In this case, these factors intersect with the

12 nature and function of the Connecticut probate court system. Although we could analyze those

13 factors and simply decide the immunity question as a matter of federal law, we deem it the more

14 prudent course to allow the Connecticut Supreme Court to speak to the issue first. 

15 In deciding the federal immunity question, we would apply the Cleavinger factors, which

16 we detail infra. We respectfully request that the Connecticut Supreme Court discuss these

17 factors in light of the role played by conservators, attorneys, and nursing homes. We will decide,

18 after receiving the Connecticut Supreme Court’s guidance, the federal law immunity questions. 

19 In so doing, we do not intend to suggest that judicial immunity always turns on state law. 

20 Indeed, the common law doctrine predates even our government. See Floyd v. Barker, 77 Eng.

21 Rep. 1305 (Star Chamber 1607). The U.S. Supreme Court has recognized judicial immunity for
-17-

1 over one hundred years, see Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871), as have federal

2 courts around the country, see, e.g., Cok v. Consentino, 876 F.2d 1 (1st Cir. 1989), including our

3 own, see Tucker, 118 F.3d 930, when addressing federal civil rights claims. Nevertheless,

4 application of Cleavinger in this case directly implicates the role and function of conservators,

5 attorneys, and nursing homes in the Connecticut probate court system and Connecticut public

6 policy, matters that the Connecticut Supreme Court is better equipped to speak to.

7 If, based on the Connecticut Supreme Court’s guidance as to the Cleavinger factors, we

8 conclude that the quasi-judicial immunity defense is not available to Donovan, Newman, or

9 Grove Manor, as a matter of federal law, then we need not decide the precise outer bounds of

10 immunity. However, if we ultimately conclude that the immunity defense is available to any of

11 the defendants under federal law, we will have to determine the circumstances under which

12 immunity is defeated. Even judicial immunity, which provides judges with very broad

13 protection, may be overcome if the judge acts in the clear absence of all jurisdiction or if he is not

14 acting in his judicial capacity. See, e.g., Tucker, 118 F.3d at 933 (citing cases). It may be the

15 case that quasi-judicial immunity may similarly be overcome: for example, if the plaintiff alleges

16 that the actions a defendant took were discretionary (as opposed to in strict compliance with

17 court orders), undertaken in bad faith, intentional torts, etc. No case in our Circuit spells out the

18 circumstances under which quasi-judicial immunity may be surmounted. If such immunity exists

19 in this case, we will undertake to decide this second-order question. If it does not, then Gross’s

20 lawsuit may proceed in the normal course.

21 The nature of this “second step” can be illustrated with an example from Donovan’s brief. 
 Indeed, at least at one juncture — with regard to Gross’s forcible return to Grove Manor 7

from New York — Donovan concedes that the probate court did not have actual knowledge of

what was happening, suggesting only that “it can reasonably be inferred that returning Gross to

Grove Manor was done under the supervision, knowledge, and implied consent of the Court.” 

Brief for Defendant-Appellee Donovan at 22 (emphasis added). Because we must draw all

inferences in the light most favorable to the plaintiff, we must decline Donovan’s invitation to

reasonably infer that she forcibly returned Gross to Grove Manor from New York “under the

supervision, knowledge, and implied consent of the Court.”

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1 Donovan argues that the actions she took — selling Gross’s property, maintaining a bank account

2 with him, changing the locks on his house, etc. — were proper and within the scope of the duties

3 that a conservator typically carries out. However, these arguments do not go to whether a

4 conservator has immunity (step one). They go to whether Gross’s complaint, assuming there is

5 immunity, alleges sufficient facts to overcome it. It may, or it may not (we do not decide that

6 question now), but it is a distinct question from whether quasi-judicial immunity even extends to

7 these kinds of defendants.

8 Of course, it should go without saying that Donovan (or any defendant) cannot, at this

9 stage, argue that certain actions (such as placing Gross in the locked ward of the nursing home,

10 restricting his access to his children, and forcibly returning him to Grove Manor from a New

11 York hospital) were for his own protection. At this stage, we must construe all facts in the light

12 most favorable to Gross. A defendant may not bootstrap an argument that she should not be

13 liable on the merits into an argument that she is protected by absolute immunity. We cannot

14 resolve factual disputes in the defendants’ favor at this stage to conclude that they are absolutely

15 immune from suit.

7

16 With this background in mind, we analyze the judicial and quasi-judicial immunity
-19-

1 questions as to Brunnock, Donovan, Newman, and Grove Manor.

2 II. Judicial Immunity: Judge Thomas P. Brunnock

3 Plaintiff makes several claims against Brunnock, including violation of the Americans

4 with Disabilities Act, conspiracy (per 42 U.S.C. § 1985), violation of due process rights, abuse of

5 process, and negligent and intentional infliction of emotional distress. It is unnecessary to parse

6 the specifics of each claim because the only issue on appeal is immunity. We affirm the grant of

7 judicial immunity as to the judge. 

8 The problems in this case began when Brunnock signed an order on August 25, 2005

9 indicating that a hearing would occur on September 1 — and that Gross was to be notified of the

10 hearing by August 24. Moreover, there is no indication that Gross even learned of the hearing

11 until August 30, just two days prior. Additional diligence on Brunnock’s part could have

12 uncovered the fact that Gross was neither a resident nor a domiciliary of Connecticut; as Judge

13 Gormley of the Superior Court noted at the hearing on the habeas petition, there was not “a

14 scintilla of evidence that [Gross was] a resident or domiciliary of the state of Connecticut.” 

15 Obviously, Brunnock to some extent had to rely on the representations of Gross’s appointed

16 counsel, but — in particular, knowing that Gross was not served with notice of the hearing until

17 past the statutory deadline, and obviously aware of the fact that Gross was not at the hearing

18 itself — it would have been advisable to inquire further into the facts. Indeed, as Judge Gormley

19 noted, “Mr. Gross doesn’t get to go to the hearing, or get notice of the hearing, and has no ability

20 to say to anybody[, ‘]I don’t live here.[’] . . . [T]his case has disturbed me from day one. I kept

21 looking for some evidence that would support what has taken place in this case but I find none . .
-20-

1 . .”

2 Nevertheless, Brunnock’s mishandling of the case is insufficient to defeat judicial

3 immunity. “A judge will not be deprived of immunity because the action he took was in error,

4 was done maliciously, or was in excess of his authority; rather, he will be subject to liability only

5 when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349,

6 356-57 (1978) (internal quotation marks omitted and emphasis added). The critical question is

7 whether he had jurisdiction. Id. at 356. However, there is a difference between exceeding

8 jurisdiction and acting in the absence of jurisdiction:

9 if a probate judge, with jurisdiction over only wills and estates,

10 should try a criminal case, he would be acting in the clear absence

11 of jurisdiction and would not be immune from liability for his

12 action; on the other hand, if a judge of a criminal court should

13 convict a defendant of a nonexistent crime, he would merely be

14 acting in excess of his jurisdiction and would be immune. 

15

16 Id. at 357 n.7. Judicial immunity is not defeated “even when the judge is accused of acting

17 maliciously and corruptly.” Pierson v. Ray, 386 U.S. 547, 554 (1967). 

18 Gross suggests that it should be easier to defeat judicial immunity when the judge in

19 question is sitting on a court of limited jurisdiction. However, this is not the law. Admittedly,

20 some discussion in Stump suggests that the judge was immune because he sat on a court of

21 general jurisdiction. See Stump, 435 U.S. at 357 (noting that the judge had “original exclusive

22 jurisdiction in all cases at law and in equity whatsoever”) (internal quotation marks omitted). 

23 The point is not that a judge on a court of general jurisdiction enjoys “more” immunity than one

24 on a court of limited jurisdiction. Rather, the point is that a judge on a court of general
-21-

1 jurisdiction is less likely to have acted in the clear absence of all jurisdiction. 

2 More to the point, the discussion in these cases — and in the parties’ briefs in this case —

3 involve an “elastic,” and therefore imprecise, “concept of jurisdiction.” United States v. Cotton,

4 535 U.S. 625, 630 (2002). In this context, a court acts in the absence of all jurisdiction when it

5 does not have any “statutory or constitutional power to adjudicate the case.” Id. (internal

6 quotation marks omitted). Here, it is undisputed that Brunnock had the power to adjudicate

7 conservatorship applications. The defect arose out of the erroneous conclusion that Gross was a

8 resident of Connecticut. This erroneous legal conclusion is insufficient to strip the judge of

9 immunity. 

10 In Maestri v. Jutkofsky, 860 F.2d 50 (2d Cir. 1988), we addressed judicial immunity in

11 the context of a lawsuit against a town justice. In that case, the plaintiffs were arrested, based on

12 an arrest warrant issued by the defendant, in the town of Germantown. However, the defendant

13 was a town justice in Taghkanic, which is not adjacent to Germantown. By statute, town justices

14 have jurisdiction “only in the town in which the offense was committed [or, in certain

15 circumstances,] any adjoining town within the same county.” Id. at 52. We explained in Maestri

16 that “a judge will be denied immunity only where it appears, first, that the judge acted in the clear

17 absence of jurisdiction, and second, that the judge must have known that he or she was acting in

18 the clear absence of jurisdiction.” Id. at 53 (emphasis added). In that case, we held that

19 immunity did not apply, because the offense in question occurred in a non-adjoining town, and

20 “[n]o reasonable town judge would have thought himself to have had jurisdiction over a non21 adjoining town.” Id. 
-22-

1 Gross seizes on that language here, arguing that no reasonable Connecticut Probate Court

2 judge would have thought he had jurisdiction over a New York resident. This misses the crucial

3 distinction between Maestri and this case, viz., that it was undisputed that the judge in Maestri

4 knew the plaintiffs were from a town over which he had no jurisdiction. See id. at 51-52. Here,

5 Brunnock had subject matter jurisdiction over cases like Gross’s, and though it was ultimately

6 held that he did not have personal jurisdiction over Gross, Brunnock did not know it at the time. 

7 Immunity therefore applies. 

8 Plaintiff also argues that Brunnock knew or should have known that he did not have

9 jurisdiction as of the September 1, 2005, hearing, because (1) the notice that Brunnock signed on

10 August 25 was facially defective, as it did not allow for the statutorily-mandated seven days’

11 notice, see CONN. GEN. STAT. ANN. § 45a-649(a); (2) the return of service indicated that

12 Limauro, and not Gross himself (or his attorney), was the person served; and (3) Newman’s

13 report to the court indicated that Gross lived in New York, so that a reasonable judge would

14 have, at a minimum, engaged in further fact-finding to determine if jurisdiction were proper. 

15 These claims find some support in the statute, which provides that the respondent must be given

16 seven days’ notice of a hearing and that he himself must be served. Moreover, if the respondent

17 wishes to attend the hearing, the judge must either hold the hearing in a convenient location or

18 visit the respondent. Id. § 45a-649(a)-(b). 

19 But as the Supreme Court has instructed, “judges should be at liberty to exercise their

20 functions with independence and without fear of consequences.” Pierson, 386 U.S. at 554. 

21 Moreover, “the scope of the judge’s jurisdiction must be construed broadly where the issue is the
-23-

1 immunity of the judge.” Stump, 435 U.S. at 356. Brunnock clearly had jurisdiction over cases

2 like Gross’s. The judge simply did not have jurisdiction over Gross’s case itself. Indeed, as a

3 recent Connecticut Appellate Court case explains, “[a] judge does not act in the complete

4 absence of authority, even if she acts erroneously, unless the judicial conduct is so far outside the

5 normal scope of judicial functions that the judge was in effect not acting as a judge.” Leseberg v.

6 O’Grady, 115 Conn. App. 18, 23 (2009) (internal quotation marks omitted). That test is not met

7 here; ruling on conservatorship applications and related matters are judicial functions within the

8 realm of a probate judge. See id. at 24. A judge’s “fail[ure] to comply fully with statutory

9 procedures,” as was the case here, is insufficient to strip the judge of immunity. Id. at 23.

10 The foregoing analysis applies to state as well as federal claims. As explained above,

11 Connecticut’s common law of judicial immunity is, so far as relevant here, the same as the

12 federal test. See Shay v. Rossi, 253 Conn. 134, 170 (2000) (citing Stump v. Sparkman, 435 U.S.

13 349, 364 (1978)), overruled on other grounds, Miller v. Egan, 265 Conn. 301 (2003); Leseberg

14 v. O’Grady, 115 Conn. App. 18, 22 (2009) (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). 

15 For the reasons discussed above, we hold that Brunnock is entitled to judicial immunity on state

16 law claims.

17 Thus, Brunnock did not act in the clear absence of subject matter jurisdiction, and he was

18 not aware of the defects in personal jurisdiction, making judicial immunity appropriate. We

19 therefore affirm the District Court’s grant of judicial immunity to Brunnock and its dismissal of
Case v. Bush, 93 Conn. 550 (1919), does not change the analysis. According to a 8

treatise, Case stands for the proposition that a judge who acts without subject matter jurisdiction

could be subject to civil liability. See RALPH H. FOLSON & GAYLE B. WILHELM, PROBATE

JURISDICTION & PROCEDURE IN CONN. § 2:5, at 2-19 (2d ed. 2008). However, Case significantly

predates the U.S. and Connecticut Supreme Courts’ authorities on the question and, most

important, does not distinguish between a judge exceeding his jurisdiction and acting in the clear

absence of jurisdiction, which is the relevant legal test.

-24-

1 all claims against him. 

8

2 III. Quasi-Judicial Immunity

3 A. Federal vs. State Law

4 As discussed above, there are two distinct but related questions in this case: first, whether

5 Donovan, Newman, and Grove Manor are entitled to the defense of absolute quasi-judicial

6 immunity as to federal claims (a question of federal law), and second, whether Donovan and

7 Newman are entitled to such immunity as to state law claims (a question of state law). We are

8 certifying questions as to both of these issues. We are certifying questions regarding the state

9 law issue because the Connecticut Supreme Court has not definitively spoken on the subject of

10 quasi-judicial immunity for conservators and court-appointed attorneys for conservatees. 

11 We are also certifying a question that relates to the federal law question. We do so

12 because application of the factors the Supreme Court has outlined intersects unsettled questions

13 of Connecticut state law and policy. Therefore, we ask the Connecticut Supreme Court to give

14 us guidance as to the role of conservators, attorneys, and nursing homes within the Connecticut

15 probate court system. Upon receiving this guidance, we will decide the federal claims at issue

16 here.
 A recent case from the D.C. Circuit illustrates the potential for difference. In Atherton 9

v. District of Columbia, 567 F.3d 672 (D.C. Cir. 2009), the court had to address the question of

whether a juror officer and an Assistant United States Attorney were entitled to quasi-judicial

immunity for dismissing a juror, allegedly on account of his ethnicity. The D.C. Circuit

employed a three-part functional analysis based on Butz to determine the question of quasijudicial immunity, see id. at 683, just as the Connecticut Supreme Court did, see Carrubba, 274

Conn. at 542-43.

However, Connecticut seems to extend immunity to those who are “performing a function

that was integral to the judicial process.” Id. at 542. The D.C. Circuit, on the other hand —

relying on the same Supreme Court case as Connecticut — seems to extend immunity only to

those who are exercising a judicial function or acting in a way integrally related to adjudication. 

See Atherton, 567 F.3d at 683. For example, in Atherton, the D.C. Circuit explained that the

juror officer “was not involved in the resolution of any factual or legal issue; and her

responsibilities did not involve handling any pleadings, disputes, or controversies of law.” Id. at

683-84. Thus, even officials who are important in providing the necessary conditions for the

operation of the judicial system are not protected by immunity unless they are performing

adjudicative functions. See id. at 684. The D.C. Circuit, relying at least in part on the same cases

as the Connecticut Supreme Court, appears to have developed a test for quasi-judicial immunity

that is narrower than that in Connecticut.

We note this difference, not to suggest that the Connecticut test is “incorrect,” but only to

point out how a federal court and a state court, employing the same legal framework, may come

to different conclusions when one is applying federal law and the other is applying state law. 

Such an outcome may or may not arise in this case, but such a possibility is what requires us to

certify two sets of questions.

-25-

1 We note that, in practice, the division between the federal and state law issues may

2 vanish. As we explain infra, the Connecticut Supreme Court, in its most recent case on quasi3 judicial immunity, explained that it was adopting U.S. Supreme Court case law on the subject. It

4 does not appear to us that the federal and Connecticut tests diverge much, if at all. However, we

5 do not presume to decide the contours of Connecticut law. After all, the Connecticut Supreme 9

6 Court may expand, restrict, abandon, or otherwise modify its current state common law doctrine

7 on this point. Even if that is the case, we would nonetheless find helpful a discussion of the role
-26-

1 of the various actors in the Connecticut probate system in light of the federal law factors as

2 enunciated in Cleavinger. 

3 Of course, if Connecticut’s state law analysis of quasi-judicial immunity relies on the

4 same factors as the federal law test, then the Connecticut Supreme Court will so advise us. 

5 In either event, we will ultimately apply and elaborate on the federal law test for quasi6 judicial immunity. First, in light of the guidance received by the Connecticut Supreme Court, we

7 will decide whether the defense of quasi-judicial immunity is available to these defendants at all. 

8 Then, we may also need to decide related questions, such as whether the defense should be raised

9 at a motion to dismiss, or at a later stage. If we conclude that quasi-judicial immunity applies to

10 any of the federal claims against the defendants, we may also need to answer the second-order

11 question of precise scope and contours of that immunity. These determinations would be made

12 as a matter of federal law.

13 Therefore, although state and federal law questions are posed with regard to each

14 defendant, we do not bifurcate our analysis below.

15 B. Conservator Kathleen Donovan

16 Gross pleads several federal and state law claims against the former conservator,

17 Kathleen Donovan: conspiracy pursuant to § 1985, violation of his right to due process, negligent

18 and intentional infliction of emotional distress, breach of fiduciary duty, false arrest and tortious

19 assault, and false imprisonment. The District Court dismissed all of these claims, concluding

20 that Donovan, as a court-appointed conservator acting pursuant to the Probate Court’s order, was

21 entitled to quasi-judicial immunity. The District Court wrote,
-27-

1 Donovan’s argument to extend Judge Brunnock’s judicial

2 immunity to her actions is a simple one as the law is clear and well

3 established. Donovan was acting as an agent of the Probate Court,

4 at the direction and under the supervision of Judge Brunnock. If

5 Judge Brunnock is immune from suit, than [sic] Donovan as

6 conservator acting as his agent or at his direction must be immune.

7

8 However, we are not of the view that “the law is clear and well-established.” To the

9 contrary, as we read them, the statutes and case law in Connecticut do not sufficiently enable us

10 to analyze the factors set forth by the Supreme Court in deciding when an individual is entitled to

11 quasi-judicial immunity. 

12 At the outset, we note that Donovan is correct: courts are willing to extend absolute

13 judicial immunity to those who “perform functions closely associated with the judicial process.” 

14 Cleavinger v. Saxner, 474 U.S. 193, 200 (1985). Those who seek this absolute immunity bear

15 the burden of demonstrating that public policy requires such a broad exemption from suit. See

16 id. at 201. The Supreme Court has set forth a “functional” approach to determine whether a

17 particular individual is entitled to quasi-judicial immunity. The factors include

18 (a) the need to assure that the individual can perform his functions

19 without harassment or intimidation; (b) the presence of safeguards

20 that reduce the need for private damages actions as a means of

21 controlling unconstitutional conduct; (c) insulation from political

22 influence; (d) the importance of precedent; (e) the adversary nature

23 of the process; and (f) the correctability of error on appeal.

24

25 Id. at 202; see also Butz v. Economou, 438 U.S. 478, 511-12 (1978) (describing the factors in

26 greater detail).

27 In this case, the application of these factors directly intersects the nature and function of

28 the Connecticut probate court system and considerations of Connecticut public policy. For
-28-

1 example, although all individuals connected to the judicial process in some way would surely

2 like to “perform [their] functions without harassment or intimidation,” Cleavinger, 474 U.S. at

3 202, certain of those individuals enjoy absolute immunity, see, e.g., Imbler v. Pachtman, 424

4 U.S. 409 (1976) (prosecutors entitled to absolute immunity) , while others do not, see, e.g.,

5 Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) (court reporters not entitled to absolute

6 immunity). Which side of the line a court-appointed conservator falls on necessarily involves

7 questions regarding the role of a conservator in Connecticut and the way that position is

8 envisioned in Connecticut’s statutory and common law scheme.

9 Connecticut case law is not sufficiently on point to provide a rule of decision here. In

10 Carrubba v. Moskowitz, 274 Conn. 533 (2005), the Connecticut Supreme Court held that court11 appointed counsel for minor children were entitled to quasi-judicial immunity. The court began

12 the analysis by noting that the “extension [of judicial immunity to others] generally has been very

13 limited.” Id. at 540. Moreover, 

14 not every category of persons protected by immunity are entitled to

15 absolute immunity. In fact, just the opposite presumption prevails

16 — categories of persons protected by immunity are entitled only to

17 the scope of immunity that is necessary to protect those persons in

18 the performance of their duties. The presumption is that qualified

19 rather than absolute immunity is sufficient to protect government

20 officials in the exercise of their duties.

21

22 Id. at 541 (internal quotation marks and alteration omitted). These comments might lead one to

23 conclude that courts should be very reluctant to expand the reach of quasi-judicial immunity. 

24 However, after adopting the U.S. Supreme Court’s functional approach, the court

25 determined that court-appointed counsel for minor children were entitled to absolute immunity. 
-29-

1 The court reasoned that court-appointed counsel for minor children were “subject to the court’s

2 discretion,” could “be removed by the court at any time,” and were, “just as any other attorney, . .

3 . subject to discipline for violations of the Code of Professional Conduct.” Id. at 543. The court

4 emphasized that court-appointed counsel for minor children served a dual function; in addition to

5 being attorneys advocating their clients’ (i.e., the child’s) wishes, they must “promot[e] the best

6 interests of the child,” id. at 544, which involves “be[ing] more objective than a privately

7 retained attorney,” id. at 545. The court acknowledged that the “dual obligations imposed on the

8 attorney for a minor child . . . are not easily disentangled.” Id. However, the role as advocate

9 “must always be subordinated to the attorney’s duty to serve the best interests of the child.” Id.

10 at 546. The court also distinguished the case of representing a child — which “imposes a higher

11 degree of objectivity on [an] attorney” — from that of representing an adult. Id. at 545 (internal

12 quotation marks omitted).

13 Thus, after explaining that the attorney had an objective role (i.e., not purely as an

14 advocate) that made her integral to the judicial process, and that the complaint made no

15 allegation that the attorney “acted outside the usual role of an attorney for the minor children,”

16 the court concluded that the attorney was entitled to absolute quasi-judicial immunity. Id. at 549.

17 Relying primarily on Carrubba, Donovan argues that she should be immune from suit. 

18 Carrubba, however, is not sufficiently instructive. The application of the factors set forth in

19 Cleavinger to the circumstances of this case (a federal question) depends on the nature of the role

20 a conservator serves under Connecticut law, a topic that Carrubba does not discuss. Therefore,

21 we think it most prudent to seek the assistance of the Connecticut Supreme Court with respect to
-30-

1 the Cleavinger factors. 

2 Indeed, Connecticut law seems to recognize that, in certain circumstances, conservators

3 can be liable for their official actions. First, a probate court is required by statute to require the

4 posting of a probate bond if it appoints a conservator for the estate of a respondent. See CONN.

5 GEN. STAT. ANN. § 45a-650(g). The court also has the ability, in its discretion, if it appoints a

6 conservator of the person, to require the conservator to post a bond “for the protection of the

7 respondent.” Id. The court did not require such a bond in this case, which Gross claims was part

8 of the conspiracy against him. Regardless, the fact that the law requires a probate bond, and

9 permits a bond for the protection of the conserved person, suggests that the legislature was aware

10 of the possibility of conservators’ liability.

11 The Connecticut Supreme Court’s decision in Jewish Home for the Elderly of Fairfield

12 County, Inc. v. Cantore, 257 Conn. 531 (2001), is instructive. The home at which the decedent

13 stayed sued the conservator when the conservator did not pay it for its services. It alleged “an

14 action on the probate bond to recover for the loss it suffered as a result of [the conservator’s]

15 failure to ensure timely payment for [the conservatee Kosminer’s] care.” Id. at 539. The

16 Connecticut Supreme Court determined that the complaint had stated a claim against Cantore and

17 that the home had standing to bring its claim. Id. at 543. It held that Cantore had a duty, among

18 other things, to use Kosminer’s estate to support her and pay her debts. Id. at 540. Thus, the

19 Connecticut Supreme Court’s holding in the Cantore litigation seems to recognize that a

20 conservator can be sued in an action on the probate bond when he fails to perform his duty. 

21 Moreover, a conservator is defined as a fiduciary, see CONN. GEN. STAT. ANN. § 45a-
-31-

1 199, and fiduciaries “who[,] in good faith[,] make[] payments . . . pursuant to the order of the

2 court of probate having jurisdiction before an appeal has been taken from such order, shall not be

3 liable for the money so paid . . . even if the order under which such payment . . . has been made is

4 later reversed, vacated, or set aside,” id. § 45a-202(a). It could be, however, that a fiduciary may

5 be liable (1) if he did not act in good faith, (2) if the probate court lacked jurisdiction, or (3) if he

6 acted after an appeal was taken and the underlying order is reversed.

7 Thus, Connecticut law seems to imply that (at least certain types of) conservators may be

8 liable in certain circumstances. This suggests that conservators do not have absolute immunity

9 from suit (the first-order question) but that they may raise certain affirmative defenses to liability. 

10 In such a context, it appears inappropriate for us to hold that conservators are absolutely immune

11 from suit. 

12 It would be particularly inappropriate for us to so hold because, in other contexts,

13 Connecticut law explicitly recognizes certain conservators’ immunity. By law, “[a]ll receivers or

14 conservators of trust banks or uninsured banks . . . shall be immune from suit and liability, both

15 personally and in their official capacities . . . .” CONN. GEN. STAT. ANN. § 36a-237h(a)-(b) (West

16 2008 pocket part) (emphasis added). Moreover, immunity under this section does not extend to

17 attorneys retained by the conservator, id. § 36a-237h(a), or to “intentional or wilful and wanton

18 misconduct of the receiver or conservator,” id. § 36a-237h(b). Other types of conservators are

19 similarly immune, see, e.g., id. §§ 45a-683 (guardians of people with mental retardation). These

20 provisions do not apply to the kind of conservator at issue in this case. The fact that the

21 legislature specifically made several types of guardians and conservators immune but not others
Collins is currently on appeal before our court. However, to the extent that Collins 10

overlaps, our panel has precedence, because Collins has not yet been heard.

-32-

1 lends support for the proposition that conservators like Donovan are not immune or that, if such

2 immunity exists, it is not absolute. Inclusio unius est exclusio alterius.

3 To be sure, the Connecticut Supreme Court may disagree and conclude that it is more

4 consistent with the overall statutory scheme to hold that conservators like Donovan are immune

5 despite the fact that no statute explicitly confers immunity. For example, the court may reason

6 that if other conservators are immune, Donovan should be as well. This underscores the

7 rationale for certification; the state court is in a better position to speak to that question of state

8 policy. Cf. See Sealed v. Sealed, 332 F.3d 51, 59 (2d Cir. 2003) (“Where a question of statutory

9 interpretation implicates the weighing of policy concerns, principles of comity and federalism

10 strongly support certification.”) (citation omitted).

11 Admittedly, other federal cases have held that a conservator is entitled to quasi-judicial

12 immunity. See, e.g., Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989) (per curiam); Collins v. West

13 Hartford Police Department, 380 F. Supp. 2d 83 (D. Conn. 2005); Rzayeva v. United States, 492

14 F. Supp. 2d 60 (D. Conn. 2007); Sasscer v. Barrios-Paoli, No. 05-cv-2196, 2008 WL 5215466,

15 at *5 n.5 (S.D.N.Y. Dec. 8, 2008).

10

16 Donovan suggests that conservators are simply an arm of the probate court. But this is

17 not the end of the inquiry. Although “it is clear that the conservator acts under the supervision

18 and control of the Probate Court,” they do so “in the care and management of the ward’s estate”

19 or person. Probate of Marcus, 199 Conn. 524, 529 (1986) (emphasis added). Indeed, Marcus,
 Defendants have argued that plaintiff implicitly recognized that the judge’s orders were

11

proper because there was no appeal. This ignores the obvious fact that if one is held to be

incompetent, possibly without notice, it is difficult if not impossible to file an appeal.

-33-

1 which Donovan cites, held that it was impermissible for a conservator to make a gift to herself

2 from the ward’s estate. (The conservatrices sought to make such a gift, the probate court denied

3 them permission, and they appealed.) Id. It seems at first cut illogical to hold that, if the

4 conservatrices in that case made such an ultra vires distribution, they would be absolutely

5 immune from suit by the ward, even though the actions they took were clearly impermissible. 

6 In sum, our conclusion as to quasi-judicial immunity as to federal claims against

7 Donovan is governed by the Cleavinger factors. The analysis of those factors implicates

8 questions of Connecticut state law that, as described above, are not entirely clear. For example,

9 there is obviously a need to assure that conservators can operate without the threat of harassing

10 litigation, but Connecticut courts, familiar with the role of the conservator within that state’s

11 system, may believe that this factor deserves less weight than we might otherwise give it. 

12 Similarly, the Connecticut Supreme Court might inform us that there are strong procedural

13 safeguards in place (the second factor), but that these are undercut by the fact that probate judges

14 in Connecticut are elected (the third factor). The Connecticut court can also assist us in

15 determining, for example, the chances of errors being corrected on appeal or the role of precedent

16 in the Connecticut probate system.11

17 Therefore, as to Gross’s federal claims against Donovan, we certify a question to the

18 Connecticut Supreme Court. We ask the court to explain the role and function of a court-
-34-

1 appointed conservator, in the context of Connecticut’s probate court system, in light of the

2 factors set forth by Cleavinger v. Saxner, 474 U.S. 193, 202 (1985). Upon receiving the

3 Connecticut Supreme Court’s response, we will decide whether quasi-judicial immunity extends

4 to conservators as a matter of federal law, and if so, the second-order question of what the precise

5 scope of that immunity is. 

6 As to the state claims against Donovan, we simply certify the question of whether

7 conservators are entitled to quasi-judicial immunity. Regarding the state law claims, the

8 Connecticut Supreme Court’s determination will be final.

9 C. Attorney Jonathan Newman

10 Gross makes several federal and state claims against Newman: conspiracy (by way of

11 § 1985), violation of his right to due process, intentional and negligent infliction of emotional

12 distress, and malpractice. Although Donovan and Newman are both attorneys, there is a

13 significant caveat: Newman, as Gross’s attorney, was an advocate, while Donovan, as the

14 conservator, was not. The parties seem to dispute whether Newman’s role was solely that of an

15 advocate (Gross’s position) or whether he was to advocate Gross’s views tempered by his own

16 judgment (Newman’s position). However, it is clear that, at least to some extent, Newman was

17 supposed to act as an advocate. Therefore, his role was to some degree less as an “arm of the

18 court,” and he has a correspondingly weaker claim to quasi-judicial immunity.

19 The Cleavinger factors are relevant here, as they were for Donovan: 

20 (a) the need to assure that the individual can perform his functions without

21 harassment or intimidation; (b) the presence of safeguards that reduce the need for

22 private damages actions as a means of controlling unconstitutional conduct; (c)
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1 insulation from political influence; (d) the importance of precedent; (e) the

2 adversary nature of the process; and (f) the correctability of error on appeal.

3

4 474 U.S. at 202.

5 Newman argues that he is entitled to quasi-judicial immunity because he was acting as an

6 arm of the court, noting that he was “appointed by the [probate] court to represent the interests of

7 a person being considered for a conservatorship.” Brief of Defendant-Appellant Newman at 6. 

8 However, this statement misleadingly evokes the “best interests” standard that applies to court9 appointed counsel for minor children. See Carrubba, 274 Conn. at 544-45 (holding that counsel

10 for a minor child has a “duty to secure the best interests of the child”). By contrast, the statute on

11 conservatorships indicates that the court may appoint an attorney to “represent the respondent,”

12 CONN. GEN. STAT. ANN. § 45a-649(b)(2), with no mention of “best interests.” In light of this

13 statute, Newman’s argument that “[a] physician has already determined that the person is”

14 incompetent and therefore “the attorney could not simply parrot the client’s wishes, but was

15 obligated to assist the court in serving the client’s best interest,” is particularly weak. It also

16 appears to misconstrue the nature of the proceedings. The court must find by clear and

17 convincing evidence that the respondent is incompetent. Id. § 45a-650(d). Until that time, the

18 respondent is like any other competent client. Moreover, after the conservator is appointed, she

19 is the one who manages the ward’s affairs and his person. Id. Thus, if anyone, it is the

20 conservator who exercises independent judgment as against the ward’s wishes, not the attorney. 

21 Indeed, one can imagine that the system works best when the conservator reports to the court an

22 independent judgment about what the ward’s “best interests” would be, and the attorney
 We note that Newman’s citation to Lesnewski v. Redvers, 276 Conn. 526 (2005) 12

appears entirely inapposite. 

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1 advocates for his client’s wishes, with the probate court ultimately responsible for the ward’s

2 protection. Of course, whether such a system “works best” is a matter of Connecticut policy.12

3 Newman also points to various facts that he says support his claim that he acted properly:

4 Gross could not attend the hearing because he was in the hospital (though alternative

5 arrangements could have, and by statute must have, been made); signing papers as “attorney for

6 ward” when Gross had not yet been adjudged incompetent was merely a technical error; the lack

7 of notice was curable; and so on. However, just as with Donovan, Newman may not bootstrap

8 his arguments on the merits into an argument for immunity. At this stage, we must take all facts

9 in the light most favorable to Gross. The only issue on appeal is that of quasi-judicial immunity. 

10 Whether Newman was or was not negligent is not before us.

11 Instead, our analysis is governed by the Cleavinger factors, and as with Donovan, that

12 analysis implicates questions of state probate law. For example, though attorneys typically

13 should operate without the threat of harassing litigation, Connecticut policy may favor giving

14 relatively less protection for attorneys appointed for conservatees than for those for minor

15 children. Cf. Carrubba, 274 Conn. at 541-42 (noting that prosecutors in Connecticut are entitled

16 to absolute immunity but public defenders are entitled to only qualified immunity). As with

17 Donovan, the Connecticut Supreme Court might inform us that there are strong procedural

18 safeguards in place (the second factor), but that these are undercut by the fact that probate judges

19 in Connecticut are elected (the third factor). The Cleavinger analysis is also affected by the fact
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1 that Newman has some role as an advocate, making him commensurately less of an “arm of the

2 court.”

3 Therefore, as to Gross’s federal claims against Newman, we certify a question to the

4 Connecticut Supreme Court. We ask the court to explain the role and function of a court5 appointed attorney for a conservatee, in the context of Connecticut’s probate court system, in

6 light of the factors set forth by Cleavinger v. Saxner, 474 U.S. 193, 202 (1985). Upon receiving

7 the Connecticut Supreme Court’s response, we will decide whether quasi-judicial immunity

8 extends to court-appointed attorneys for conservatees as a matter of federal law, and if so, the

9 second-order question of what the precise scope of that immunity is. 

10 As to the state claims against Newman, we simply certify the question of whether court11 appointed attorneys for conservatees are entitled to quasi-judicial immunity. As to the state law

12 claims, the Connecticut Supreme Court’s determination will be final.

13 D. Grove Manor Nursing Home

14 Gross pled six claims against Grove Manor: two civil rights conspiracy claims pursuant

15 to § 1985, two statutory violations (concerning the Omnibus Budget Reconciliation Act of 1989

16 and the Patients’ Bill of Rights), and emotional distress (intentional and negligent). Of these, the

17 civil rights claims are preserved on appeal and the remainder are waived. However, as to the

18 emotional distress claims, dismissal was without prejudice and these claims may be reasserted in

19 the future. 

20 1. Civil Rights Claims

21 The civil rights claims against Grove Manor rise and fall with the determination of quasi-
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1 judicial immunity. If the conservator and attorney have quasi-judicial immunity, then the nursing

2 home may as well, at least to the extent that it was merely carrying out their orders. If they do

3 not, then the nursing home likely does not. For the reasons discussed above in connection with

4 Donovan and Newman, we certify questions regarding the nursing home’s immunity as well. 

5 However, we note that the case for derivative immunity is weakest with regard to the nursing

6 home. Grove Manor was furthest removed from the judicial process. Moreover, no court case

7 that we have found extends judicial immunity to an institution (as opposed to an individual). 

8 Once again, our analysis is governed by the Cleavinger factors. We will not rehash them

9 here, but we note that, as with Donovan and Newman, the application of those factors to Grove

10 Manor implicates Connecticut probate law. Because Grove Manor is more removed from the

11 judicial process than Donovan or Newman, it may have a weaker case for immunity. However,

12 despite this fact, the policy considerations may exist that militate toward finding Grove Manor

13 immune, particularly if Donovan and Newman are immune. The Connecticut Supreme Court is

14 in the best position to address these questions in the first instance. Therefore, as to Gross’s

15 federal claims against Grove Manor, we certify a question to the Connecticut Supreme Court. 

16 We ask the court to explain the role and function of a nursing home in the context of

17 Connecticut’s probate court system, in light of the factors set forth by Cleavinger v. Saxner, 474

18 U.S. 193, 202 (1985). Upon receiving the Connecticut Supreme Court’s response, we will

19 decide whether quasi-judicial immunity extends to nursing homes as a matter of federal law, and

20 if so, the second-order question of what the precise scope of that immunity is.

21 2. Statutory and Tort Claims
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1 The District Court declined to grant Grove Manor quasi-judicial immunity as to the

2 statutory claims and the tort claims. The District Court reasoned that these causes of action went

3 to Grove Manor’s decision to assign Gross to a particular room, to assign him a particular

4 roommate, and to keep him in the room with the roommate after the roommate attacked him. 

5 The District Court concluded that these decisions were discretionary and not specifically called

6 for by court order; thus, even if immunity applied to Grove Manor, it would not apply to these

7 discretionary acts.

8 The District Court went on to dismiss plaintiff’s statutory claims because he did not

9 discuss them in his opposition to Grove Manor’s motion to dismiss. We affirm the dismissal of

10 these claims because they were waived below and are not discussed in the plaintiff’s opening

11 brief on appeal (other than in connection with whether Grove Manor has quasi-judicial

12 immunity).

13 This leaves the intentional and negligent infliction of emotional distress claims against

14 the nursing home. As noted above, these claims survived the District Court’s quasi-judicial

15 immunity analysis. Roughly three weeks later, the District Court held a telephone conference to

16 get further background on the case and determine issues for discovery and the subsequent course

17 of litigation. Then, at the very end of that conversation, the following transpired:

18 [THE COURT:] So with respect to the ombudsman the period of

19 non-economic damages would not exceed two months[, the time

20 from Ewald receiving the complaint and Gross being released]. 

21 And with respect to the nursing home the period of non-economic

22 damages would not exceed four days[, the time after Gross getting

23 attacked and the nursing home reassigning him to a different

24 room]. Is that inaccurate?
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1 MR. PETERS[, counsel for Gross]: With the facts before me I

2 can’t say that it is, your Honor.

3

4 THE COURT: All right. Given that, of course you understand that

5 in order to sustain an action in district court there has to be a

6 showing by you, the plaintiff, that your damages are $75,000 or

7 greater. And to be honest with you, I’m at a loss to see how that

8 could possibly be the case on these facts. I don’t believe I have

9 [subject-matter] jurisdiction.

10

11 That’s not to say that if I dismiss this case you would not be able to

12 file it in superior court. But I don’t believe you have Federal Court

13 jurisdiction any longer given the remaining claims and the extent

14 of the damages associated with those remaining claims.

15

16 MR. PETERS: We all – we would like to – I mean, we would not

17 oppose that analysis which would call for you dismissing the case

18 because then we could appeal.

19

20 THE COURT: That you could. All right. 

21

22 Do you want to withdraw the case?

23

24 MR. PETERS: No.

25

26 THE COURT: Do you object to the dismissal of the case?

27

28 MR. PETERS: No, I do not.

29

30 THE COURT: All righty, I’ll enter the order.

31

32 Gross does not address this issue in his principal brief. This constitutes waiver. See, e.g.,

33 Zhang v. Gonzalez, 426 F.3d 540, 541 n.1 (2d Cir. 2005). Gross refers to the emotional distress

34 claims in his reply brief and points out that his arguments about them were raised at the District

35 Court. However, this is also insufficient to properly present an issue on appeal. See McCarthy v.

36 S.E.C., 406 F.3d 179, 186 (2d Cir. 2005) (“[A]rguments not raised in an appellant’s opening
 Unlike Donovan and Newman, no state-law claims remain as to Grove Manor. 13

Therefore, we need not certify a separate question as to whether, as a matter of state law, nursing

homes may enjoy quasi-judicial immunity. However, because dismissal was without prejudice,

there is a possibility of that question arising in the future. We note this only to point out that this

posture may affect the Connecticut Supreme Court’s handling of the certified question.

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1 brief, but only in his reply brief, are not properly before an appellate court even when the same

2 arguments were raised in the trial court.”) (emphasis added). Merely mentioning the relevant

3 issue in an opening brief is not enough; “[i]ssues not sufficiently argued are in general deemed

4 waived and will not be considered on appeal.” Frank v. United States, 78 F.3d 815, 833 (2d Cir.

5 1996), vacated on other grounds, 521 U.S. 1114 (1997). “[S]imply stating an issue does not

6 constitute compliance with [Federal Rule of Appellate Procedure] 28(a): an appellant or cross7 appellant must state the issue and advance an argument.” Id. Because Gross did not advance

8 any argument until the reply brief, the issue is waived. 

9 Accordingly, we affirm the dismissal of the statutory and tort claims against Grove

10 Manor. The tort claims may be reasserted in the future as they were dismissed without

11 prejudice.

13

12 E. Sanctions Other Than Civil Liability

13 In Carrubba, the Connecticut Supreme Court recognized that, even though a court14 appointed attorney for a minor child might be absolutely immune from suit, he or she, “just as

15 any other attorney, is subject to discipline for violations of the Code of Professional Conduct.” 

16 See 274 Conn. at 543. Similarly, even if Brunnock, Donovan, Newman, and Grove Manor were

17 immune from suit, they may be subject to discipline for violations of their respective professional
 Gross pled both intentional and negligent infliction of emotional distress against Ewald, 14

but she enjoys immunity for negligent (but not intentional) torts under state law, CONN. GEN.

STAT. ANN. § 4-165. We affirm the District Court’s dismissal of that claim.

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1 ethics rules and/or licensing requirements. The question of whether defendants violated such

2 obligations is not before us. However, we note this fact because the possibility of such discipline

3 may affect the Connecticut Supreme Court’s analysis. Moreover, referral to disciplinary

4 authorities, if any, would be a matter of state, not federal, law.

5 IV. Governor M. Jodi Rell and Ombudsman Maggie Ewald

6 Gross alleged that Rell violated the Americans With Disabilities Act, 42 U.S.C. § 12101

7 et seq., and negligently inflicted emotional distress. He alleges that Ewald violated Section 504

8 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the First Amendment, and that she

9 intentionally and negligently inflicted emotional distress.

10 Gross does not discuss these claims in his opening brief. (The ADA, First Amendment,

11 and Rehabilitation Act claims are not mentioned at all and the emotional distress claims are only

12 mentioned in connection with Donovan and Newman.) Rell and Ewald argue that these claims

13 should be deemed waived. Gross has now explicitly abandoned all claims against Rell and the

14 Rehabilitation Act claim against Ewald, and does not discuss the First Amendment claim in

15 either his opening or reply brief. However, he argues in his reply brief that the dismissal of the

16 intentional infliction of emotional distress claim against Ewald in her individual capacity should

17 be vacated.14

18 However, we will not consider this argument because it is waived for the reasons
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1 discussed above with regard to Grove Manor. Therefore, we affirm the District Court’s dismissal

2 of the negligent infliction of emotional distress claim against Ewald. Again, we note that this

3 claim was dismissed without prejudice for failing to exceed the jurisdictional minimum. If the

4 Connecticut Supreme Court concludes that quasi-judicial immunity does not apply to Donovan,

5 Newman, and/or Grove Manor, the claim against Ewald may be reasserted. Moreover, the claim

6 may be reasserted in a separate action in any event. 

7 CONCLUSION

8 For the reasons discussed above, the District Court’s decision is AFFIRMED in part and

9 CERTIFIED in part to the Connecticut Supreme Court. We affirm the grant of judicial immunity

10 as to Brunnock and the dismissal of the claims against Rell and Ewald. We also affirm the

11 dismissal of the emotional distress claims against Grove Manor.

12 However, because there is no controlling appellate decision, constitutional provision, or

13 statute in Connecticut that explains whether conservators and court-appointed attorneys for

14 conservatees enjoy quasi-judicial immunity, we certify the following questions to the

15 Connecticut Supreme Court:

16 1. Under Connecticut law, does absolute quasi-judicial immunity extend to

17 conservators appointed by the Connecticut Probate Courts?

18

19 2. Under Connecticut law, does absolute quasi-judicial immunity extend to attorneys

20 appointed to represent respondents in conservatorship proceedings or to attorneys

21 appointed to represent Conservatees? 

22

23 In answering these two questions, the Connecticut Supreme Court may, if necessary, also

24 define the scope and contours of any such immunity. The Connecticut Supreme Court’s
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1 pronouncement as to these state law questions will be final. 

2 Gross has also pled federal law claims against Donovan, Newman, and Grove Manor. 

3 With regard to these claims, we must decide if the federal defense of quasi-judicial immunity

4 applies to a conservator, court-appointed attorney for a conservatee, or nursing home. However,

5 our determination of this question implicates questions of Connecticut law and policy. 

6 Therefore, we certify an additional question to the Connecticut Supreme Court, asking for its

7 guidance in connection with the Cleavinger factors:

8 What is the role of conservators, court-appointed attorneys for conservatees, and

9 nursing homes in the Connecticut probate court system, in light of the six factors

10 for determining quasi-judicial immunity outlined in Cleavinger v. Saxner, 474

11 U.S. 193, 201-02 (1985)? 

12

13 The certified questions may be deemed modified to cover any further pertinent questions

14 of Connecticut law involved in this appeal that the Connecticut Supreme Court chooses to

15 answer. This panel retains jurisdiction and will decide the federal quasi-judicial immunity

16 question as well as any issues that may remain on appeal once the Connecticut Supreme Court

17 has either provided us with its guidance or declined certification.

18 It is therefore ordered that the Clerk of this Court transmit to the Clerk of the Connecticut

19 Supreme Court a Certificate, as set forth below, together with a complete set of the briefs,

20 appendices, and record filed in this Court by the parties.

21 The parties shall bear equally any costs or fees imposed by the Connecticut Supreme

22 Court.

23
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1 CERTIFICATE

2 The foregoing is hereby certified to the Connecticut Supreme Court, pursuant to CONN.

3 GEN. STAT. ANN. § 51-199b and 2d Cir. R. 0.27, as ordered by the United States Court of

4 Appeals for the Second Circuit.