Spring v. Constantino

• Decision Date: 10 June 1975
• Citation: 168 Conn. 563,362 A.2d 871
• Court: Connecticut Supreme Court
• Parties: Mary SPRING v. Peter L. CONSTANTINO.

Page 871

362 A.2d 871

168 Conn. 563

Mary SPRING v.Peter L. CONSTANTINO.

Supreme Court of Connecticut.

June 10, 1975.

Henry D. Marcus, Hartford, with whom, on the brief, was Frank B. Cochran, New Haven, for appellant(plaintiff).

Barney Lapp, Asst. Atty. Gen., with whom, on the brief, were Carl R. Ajello, Atty, Gen., and John G. Haines, Asst. Atty. Gen., for appellee(defendant).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

The defendant is an attorney at law.The plaintiff, his client, whom he represented in a Circuit Court criminal proceeding, brought this action for malpractice, alleging in her complaint, that the defendant was negligent in disclosing to the court his belief that the plaintiff was insane.It is further alleged that the court thereupon set bail and ordered the plaintiff placed in a mental institution and that the defendant negligently failed to advise the plaintiff of bail procedures whereby her release could be secured.For these alleged actions and their alleged consequences, the plaintiff sought damages.At the time the present action was commenced and at the time of the occurrences pleaded in the complaint, the defendant was a public defender in the Circuit Court and had been appointed to defend the plaintiff.The attorney general entered a special appearance in behalf of the defendant and filed a plea in abatement alleging immunity from suit.The plea was sustained, and the court dismissed the action.The plaintiff has appealed from that judgment.

The issue to be decided on this appeal, whether an attorney occupying the position of public defender and assigned to represent an indigent defendant enjoys immunity from liability for professional malpractice, is one of first impression.Three grounds have been advanced by the state for the public defender's immunity: judicial immunity, common-law sovereign immunity which extends to public officials, and the statutory immunity of public officers and state employees.

The state argues that the doctrine of judicial immunity, long recognized in this state;Phelps v. Sill, 1 Day 315, 329; should be extended to public defenders on the ground that the policy supporting immunity for judges and officers exercising a judicial function is applicable to the public defender.It is pointed out that the immunity rule if designed to promote 'principled and fearless decision-making' by removing a judge's 'fear that unsatisfied litigants may hound him with litigation charging malice or corruption';Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288; and that this policy has been applied in extending immunity to a prosecuting attorney;Fanale v. Sheehy, 385 F.2d 866, 868(2d Cir.); for acts done in 'his official capacity' on grounds that 'his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest.In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench.'Bauers v. Heisel, 361 F.2d 581, 589-90(3d Cir.), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457.'The key to the immunity . . . held to be protective to the prosecuting attorney is that the acts, allege to have been wrongful, were committed by the officer in the performance of an integral part of the judicial process.'Robichaud v. Roman, 351 F.2d 533, 536(9th Cir.);see alsoHilliard v. Williams, 465 F.2d 1212, 1217(6th Cir.) and cases cited therein on the qualified nature of a prosecuting attorney's immunity from liability.The state's argument is that a public defender is appointed by the judiciary ¹ to a judicial office and that in performing his functions he is, as is a state's attorney or prosecutor, 'in the performance of an integral part of the judicial process.'

This argument sweeps too broadly for it encompasses any privately retained attorney who is representing a criminal defendant.In this state, attorneys admitted to practice are all officers of the court;Heiberger v. Clark, 148 Conn. 177, 186, 169 A.2d 652;they are all, when they undertake a criminal case, 'in the performance of an integral part of the judicial process'-the defense of the accused and the protection of the innocent.But they are in no sense judicial officers.Yudkin v. Gates, 60 Conn. 426, 429, 22 A. 776.

Concededly, there is a public interest aspect to the public defender system in that it functions to fulfill the constitutional requirement that indigents be ensured competent representation, ² but a public defender, unlike a state's attorney who is a 'representative of the state';State v. Zimnaruk, 128 Conn. 124, 128, 20 A.2d 613; and who is under a jury to see that impartial justice is done to the accused as well as to the state;State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199; upon assignment to an indigent client is the representative of that client;seeMerwin v. Richardson, 52 Conn. 223, 234; his role is that of an adversary and his function does not differ from that of a privately retained attorney.SeeState v. Jackson, 162 Conn. 440, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121.The function of the public defnder or of any other attorney in representing a defendant does not afford a basis upon which the cloak of judicial immunity may be extended.Nor does the policy behind the doctrine of judicial immunity require that it be applied to a public defender, who is like any other attorney whose duties as an officer of the court and to an individual client and 'whose principled and fearless' conduct of the defense are not deterred by the prospect of liability.But seeJohn v. Hurt, 48. F.2d 786(7th Cir.);Brown v. Joseph,463 F.2d 1046(3d Cir.), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003.

It is also argued that the common-law doctrine of sovereign immunity which extends to public officials applies in this action and that, unless the state has authorized or consented to suit, the court is without jurisdiction to entertain the suit or to render judgment binding on the state.The doctrine of sovereign immunity is well established in this state.Simmons v. Parizek, 158 Conn. 304, 306, 259 A.2d 642;Anderson v. Argraves, 146 Conn. 316, 319, 150 A.2d 295;Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468.Although the present action was brought against the defendant in his personal capacity, the state is correct in asserting that '(t)he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent. . . .The vital test is to be found in the essential nature and effect of the proceeding.'Somers v. Hill,supra, 479, 123 A.2d 469.The Somers case (p. 480, 123 A.2d p. 469) laid down the following criteria for determining whether 'the suit is, in effect, one against the state and cannot be maintained without its consent': (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3)the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.It is questionable whether any of these elements exist in the present action, but this need not be decided because the first element-that a state official has been sued-is not satisfied.A public defender in representing an indigent is not a public official as that term has been defined by this court.The essential characteristics of a 'public office' are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government.Kelly v. Bridgeport, 111 Conn. 667, 671,151 A. 268;Mechem, Public Officers§ 1.A key element of this test is that the 'officer' is carrying out a sovereign function.Even though the state must ensure that indigents are represented by competent counsel, it can hardly be argued that the actual conduct of the defense of an individual is a sovereign or governmental act.The principle that the state cannot function both as prosecutor and defender is so deeply rooted in our system of justice as to require no citation.The public defender when he represents his client is not performing a sovereign function and is therefore not a public or state official to whom the doctrine of sovereign immunity applies.

The third ground of immunity raised by the state is § 4-165 of the General Statutes which provides that '(n)o state office or employee shall be personally liable for damage or injury, not wanton or wilful, caused in the performance of his duties and within the scope of his employment.Any person having a complaint for such damage or injury shall present it as a claim against the state' under the provisions of chapter 53, §§ 4-141 to 4-165 of the General Statutes.General Statutes § 4-141 defines state officers and employees as including 'every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification or function and whether he serves with or without remuneration or compensation.'With the passage of chapter 53, the General Assembly established a mechanism by which to resolve claims against the state: ³'There shall be a commission on claims which shall hear and determine all claims against the state except: . . . (the exceptions are omitted since they are not relevant here).'§ 4-142.'Claim' under chapter 53 means a petition for the payment or refund of money by the state or for permission to sue the state.§ 4-141.'When the commission deems it just and equitable, it may authorize suit against the state on any claim for more than twenty-five hundred dollars which, in the opinion of the commission, presents...