Carrubba v. Moskowitz

HENNESSY, J.,

dissenting. I respectfully dissent from the conclusion of the majority that those appointed pursuant to General Statutes § 46b-54 as attorneys for minor children are entitled under the common law to qualified quasi-judicial immunity for actions taken during their representation in such matters. I believe that it is the legislature and not the judiciary that should, if it chooses, exercise its authority to extend immunity to court-appointed attorneys for minors. It is clear that neither the statutes of this state, nor the decisions of this court or our Supreme Court, extend the protections of immunity to court-appointed attorneys for minor children under § 46b-54. Consequently, I perceive the conclusion of the majority to be synonymous with legislating and “[m]ore importantly . . . [as] exceeding our constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments.” State v. Reynolds, 264 Conn. 1, 79 , 836 A.2d 224 (2003).

The majority begins its analysis with the proposition that the common law recognized a judicial immunity that protected judges from suit when they resolved disputes between parties or adjudicated private rights. Common-law immunity has, in recent times, been extended to those whose adjudicatory functions or other involvement with the judicial process was deemed to warrant protection from harassment, intimidation or other interference with impartial decision making. The *407 analysis continues that courts have held, in accordance with the common law, that such immunity includes not only judges, but prosecutors as well on the basis of their exercise of discretionary judgment with regard to the evidence presented to them. “It is the functional comparability of their judgments to those of the judge that has resulted in . . . prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well.” Imbler v. Pachtman, 424 U.S. 409 , 423 n.20, 96 S. Ct. 984 , 47 L. Ed. 2d 128 (1976). It was the need to protect the judge like decision-making function of those who ar e an integral part of the judicial system, acting in the public interest, that resulted in the granting of immunity to prosecutors. See Spring v. Constantino, 168 Conn. 563, 565 , 362 A.2d 871 (1975).

In contrast, the lack of a judge like decision-making function resulted in our Supreme Court denying the protections of judicial immunity to public defenders. Id., 566-67 . It is for that same reason that judicial immunity should be denied to attorneys appointed to represent minors pursuant to § 46b-54. It has been argued that public defenders are an integral part of the judicial process and that “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 . . . .” (Citations omitted.) Id. Our Supreme Court, however, denied immunity to public defenders, finding that their independent representation of the client and the decisions and judgments emanating from that representation do not present the functional comparability to a judge required to grant public defenders immunity. 1

*408 The majority concludes that public defenders, for purposes of immunity, serve a function different from that of attorneys for minor children appointed pursuant to § 46b-54, and, therefore, that the Supreme Court’s reasons for denying immunity to public defenders are not applicable. The majority further concludes that attorneys for children, appointed by the court, serve at the court’s discretion and have substantially less independence in representing their clients than public defenders do in representing their clients. See Schult v. Schult, 241 Conn. 767, 780-81 , 699 A.2d 134 (1997). I believe that the role of the attorney for the child, despite the fetters placed on her or him, is more consistent with that of the public defender than that of the prosecutor. The restrictions on the attorney for the child set forth by the majority do not undermine the core responsibility of that office. The role of the attorney for a minor “is limited to the type of representation enjoyed by unimpaired adults. In other words, the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law.” (Emphasis in original.) Ireland v. Ireland, 246 Conn. 413, 438 , 717 A.2d 676 (1998). “The purpose of appointing counsel for a minor child . . . is to ensure independent representation of the child’s interests . . . .” (Internal quotation marks omitted.) Id., 436 . That independent representation and the attorney’s strategic decisions and judgments made incident to that representation do not present the functional comparability to those of the judge. Both public defender and attorney for the child fill the role of adversary, and “his [or her] function does not differ from that of aprivately retained attorney. ” Spring v. Constantino, supra, 168 Conn. 567 .

The immunity proposed by the majority for attorneys appointed to represent minors pursuant to § 45b-54 should be addressed to a lawmaking body. “It is not *409 our office to legislate.” Colchester Savings Bank v. Brown, 75 Conn. 69, 71 , 52 A. 316 (1902).

I would reverse the judgment of dismissal as to count one of the complaint and remand the matter for further proceedings.

The legislature, through the enactment of Public Acts 1976, No. 76-371, § 2, added public defenders to the definition of “state officers and employees” for purposes of statutory sovereign immunity pursuant to General Statutes § 4-165.