Petition — McAuliffe v. Carlson

in ome MICHAEL RODAK, JR. CLERK

——_

Supreme Court of the United States

Octoser TrerRM, 1975

No. 75-933

Ropert A. McAvu.tirre,

Petitioner,

Avotr G. Cartson, Commissioner of Finance

and Control of the State of Connecticut.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JACK GREENBERG

Eric ScHNAPPER

Suite 2030

10 Columbus Circle

New York, New York 10019

MicHAEL CHURGIN

STEPHEN WIZNER

Dennis K. Curtis

127 Wall Street

New Haven, Connecticut 06520

Counsel for Petitioner

INDEX

PAGE

I lice 1

I ili 2

ISIN GETNUIIIIIIINID ccsicxisictcicsehssiiennsstesiendinecisscssesiianesiamsionniauseniaiios 2

Constitutional Provision Involved ..............0.......2.--...------ 2

ey Gr Ce 2a etneiilnaeeameiantdl 2

Reasons for Granting the Writ -.....0...0...........0..2..-sceeeeeee 4

TE A ee A rN OT 12

APPENDIX—

Opinion of the District Court, May 30, 1974 ~....000....... la

Opinion of the District Court, January 16, 1975 .......... 20a

Opinion of the Court of Appeals, August 1, 1975 ........ 30a

Order of the Court of Appeals, September 5, 1975 ........ 37a

TABLE OF AUTHORITIES

Cases:

Chicago, ete., R.R. Co. v. Chicago, 166 U.S. 226 (1897)

5, 11

Edelman v. Jordan, 415 U.S. 651 (1974) 200000... 11

Ex parte Tyler, 149 U.S. 164 (1893) _...00000 ee 7

Ex parte Young, 209 U.S. 123 (1908) ......000000000.... 6.8

ll

Fitzpatrick v. Bitzer, 519 F.2d 559 (2d Cir. 1975) 2... 11

Ford Motor Co. v. Treasury Department, 323 U.S. 459

a ae laeueaainauaaaaeeiiniaiaiandalia 10

Georgia R.R., ete., Co. v. Redwine, 342 U.S. 299 (1952) s

Great Northern Life Insurance Co. v. Read, 322 U.S.

| RE BN ee Me) i RUNES FIO OM A 7

Hopkins v. Clemson Agricultural College, 221 U.S. 636

(1911) bieceinnianiteatadeaadil 8

Knight v. State of New York, 443 F.2d 415 (2d Cir.

RD en CERES Ee aint 6

Land v. Dollar, 330 U.S. 731 (1947) 8

Larson v. Domestic and Foreign Commerce Corp., 337

U.S. 682 (1949) . ‘ 7,8

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400

(1968) it eee aos

Pennover v. MeConnaughy, 140 U.S. 1 (1891) 7

Poindexter v. Greenhow, 114 U.S. 270 (1885) 6,9,10

scott v. Donald, 165 U.S. oS (1897) 7

Smith v. Reeves, 178 U.S. 436 (1900) 10

Sniadach v. Family Finance Corp., 3899 U.S. 337 (1969) 2

Tindal v. Wesley, 167 U.S. 204 (1897) 6, 7, 8,9

("; nstitutional Provisions:

Eleventh Amendment to the U.S. Constitution 2, 4, 6,

Fourteenth Amendment to the U.S. Constitution 2,2,9

Statutes and Regulations:

28 U.S.C. §1254(1)

Conn. Gen. Stat. §4-68¢e

Conn. Gen. Stat. §4-68¢

Conn. Gen. Stat. §17-318

20 C.F.R. §404.1603

iil

ao ww

IN THE

Supreme Court of the United States

Ocroper Term, 1975

No. 75-933

Rosert A. McAvutirre,

Petironer,

Apotr G. Cartson, Commissioner of Finance

and Control of the State of Connecticut.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Robert A. McAuliffe, respectfully prays

that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Second Circuit entered in this proceeding on August 1,

1975.

Opinions Below

The opinion of the court of appeals, which is reported

at 520 F.2d 1305, is set out in the Appendix, pp. 30a-36a.

The order of the court of appeals denying rehearing, which

is not reported, is set out in the Appendix, p. 37a. The

district court opinion of May 20, 1974, which is reported at

377 F.Supp. 896, is set out in the Appendix, pp. la-19a.

The district court opinion of January 6, 1975, which is re-

ported at 386 F.Supp. 1245 is set out in the Appendix,

pp. ?0a-29a.

2

Jurisdiction

The judgment of the court of appeals was entered on

August 1, 1975. The petition for rehearing was denied on

September 5, 1975. On November 21, 1975, Mr. Justice

Marshall signed an order extending the time in which to

file a petition for writ of certiorari until January 2, 1976.

Jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

Questions Presented

1. Does the Eleventh Amendment preclude an action

in federal court against a state official to compel that of-

ficial to return property seized and held in violation of

the Fourteenth Amendment?

2. If the Eleventh Amendment confers immunity from

such an action, was that immunity waived in this case?

Constitutional Provision Involved

The Eleventh Amendment to the United States Consti-

tution provides:

The judicial power of the United States shall not be

construed to extend to any suit in law or in equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

Statement of the Case

In 1971-72 plaintiff was confined in mental health facil-

ities operated by the State of Connecticut. The defendant

3

is the State Commissioner of Finance and Control. In

1971 the defendant, acting pursuant to state law,' per-

suaded the Social Security Administration to pay to him,

as a “representative payee,” certain disability benefits

owed to plaintiff. Under the applicable federal regulations

defendant was required to use these funds “only for the

use and benefit” of the beneficiary and “in the beneficiary’s

best interest.” 20 C.F.R. §404.1603, Instead the defendant,

in his capacity as plaintiff's guardian, paid over to him-

self, in his capacity as Commissioner of Finance and Con-

trol, $1,098.07 for the cost of plaintiff’s treatment.

In 1972 plaintiff deposited $150.00 in a savings account

at the institution where he was then confined. State law?

conclusively presumed that all mental patients with modest

assets were incompetent, and designated defendant as their

conservator or guardian. Acting in this capacity defen-

dant seized the proceeds of this bank account and then

paid them over to himself in his capacity as Commissioner

of Finance and Control, again for the cost of plaintiff's

treatment. The record does not indicate that the defen-

dant as guardian ever maintained a separate bank account

for these funds; apparently the funds were deposited in

an account with other monies under defendant’s control

and the payment effectuated by some form of bookkeeping

entry indicating that the $1,248.07 was henceforth held by

defendant as Commissioner of Finance and Control rather

than as plaintiff’s guardian. .

Plaintiff brought this action in the United States District

Court for the District of Connecticut seeking to compel

the defendant to return the $1,248.07. On May 30, 1974,

1 Conn. Gen. Stat. §4-68c.

? Conn. Gen. Stat. §4-68g.

4

the district court held that the state statute requiring

plaintiff, but not other patients, to pay for treatment,’

and conclusively presuming plaintiff to be incompetent,

were unconstitutional. Pp. la-19a. The district court

thought it unnecessary to order defendant to return the

funds “since it is expected that, in light of this decision

declaring the challenged statutes unconstitutional, defen-

dant will agree to return to plaintiff the property taken

from him”. Pp. 18a-19a, n.13. The defendant, who declined

to appeal the decision invalidating the statutes involved,

refused to return that property. He offered no defense

to the claim that the funds belonged to plaintiff other

than to assert that the Eleventh Amendment rendered him

immune from any order to return that property. Pp. 22a-

29a. On January 16, 1975, the district court ordered de-

fendant to return plaintiff's money. On August 1, 1975,

the court of appeals reversed, holding that the Eleventh

Amendment precluded the federal courts from affording

plaintiff any remedy for the admittedly unconstitutional

seizure of his property.

Reasons for Granting the Writ

Although the illegality of the defendant’s conduct is un-

disputed, the nature of the constitutional violation involved

is important. The defendant never acted as a “guardian”

or “conservator” in the ordinary senses of those terms;

he invoked that capacity conferred upon him by state law

solely for the purpose of seizing plaintiff's funds and trans-

ferring them to himself in his capacity as Commissioner

of Finance and Control. There was no finding or allegation

that plaintiff was in fact incapable of handling the modest

sums of money involved, or that plaintiff in any way

*Conn, Gen. Stat. §17-318.

5

benefited by his “guardian’s” action. In sum, the statutes

designating defendant as plaintiff's conservator served as

an expeditious device by which a state official could ex-

propriate the funds of a mental patient.

Defendant’s conduct violated plaintiff's rights in four

distinct ways. First, in seizing plaintiff’s property with-

out any prior notice, warning, or hearing, defendant vi-

olated plaintiff's right to procedural due process. Sniadach

v. Family Finance Corp., 395 U.S. 337 (1969). Second, the

Connecticut statute requiring plaintiff, but not other classes

of patients, to reimburse the state for treatment denied

plaintiff equal protection of the laws. Pp. 5a-l4a. Third,

the Connecticut statute appointing defendant .as_plain-

tiff’s conservator, based on a conclusive presumption that

any mental patient with less than $5,000 in assets or

annual income was incompetent, violated due process of

law. Pp. 15a-18a. Fourth, having learned that his seizure

of plaintiff’s property was unlawful, the defendant re-

fused to either return that property or otherwise reim-

burse plaintiff, thus violating the Fourteenth Amendment

ban on the taking of property without just compensation.

Chicago, etc., RR. Co. v. Chicago, 166 U.S. 226 (1897).*

The defendant in this case has long ago abandoned any

contention that he has any legal right, as a state official or

otherwise, to possession of plaintiff's money.’ Nor does

the defendant deny that, had plaintiff known in advance of

the planned expropriation, he could have obtained an in-

* There is also a serious question as to whether the designation

of the defendant as plaintiff's conservator violated due process of

law inasmuch as defendant faced an obvious conflict of interest

with his responsibilities as the Commissioner of Finance and Con-

trol. P. 24a.

- No appeal was taken from the district court’s decision to this

effect.

2

6

junction against it under Ex parte Young, 209 U.S. 123

(1908). But the defendant gave plaintiff no prior notice

of the intended seizure, which was accomplished at a time

when plaintiff was incarcerated and state officials main-

tained he was mentally ill and presumably even less able

than usual io protect his rights. Defendant maintains that,

by proceeding in this ex parte manner and by promptly

commingling plaintiff’s property with state funds, he suc-

ceeded in depriving plaintiff of any remedy. The Second

Cireuit held that, if a state official seizes and continues to

hold the private property of a citizen in undisputed viola-

tion of the Constitution of the United States, the Eleventh

Amendment bars the federal courts from issuing an injunc-

tion directing the return of that property.’ The decision

of the court of appeals is squarely in conflict with the deci-

sions of this Court.

This Court has expressly held that the Eleventh Amend-

ment does not bar an action against a state official for the

return of unlawfully appropriated property. Tindal v.

Wesley, 167 U.S. 204 (1897), upheld an action against sev-

eral state officials for the return of real property.’ Poin-

dexter v. Greenhow, 114 U.S. 270 (1885), concluded that the

Eleventh Amendment did not preclude an action against

a state tax collector for the return of a desk seized in viola-

®° The court of appeals’ decision was not limited to the facts of

this case; it reaffirmed its earlier decision in Knight v. State of

New York, 443 F.2d 415 (1971), that state officials who appro-

priated real property were protected by the Eleventh Amendment

from suits to compel the return of that property. P. 34a.

7™“The settled doctrine of this court wholly precludes the idea

that a suit against individuals to recover the possession of real

property is a suit against the state simply because the defendant

holding possession happens to be an officer of the state and as-

serts that he is lawfully in possession on its behalf... . [T]he

11th Amendment gives no immunity to officers or agents of a

state in withholding the property of a citizen without authority

of law.” 167 U.S. at 221-222.

7

tion of the constitution. Ex Parte Tyler, 149 U.S. 164

(1893) sustained a suit to recover railroad cars that had

bee unlawfully appropriated by state officials. See also

United States v. Peters, 5 Cranch. (9 U.S.) 115 (1809) (ae-

tion for return of loan office certificates). On at least four

occasions this Court has stated that the Eleventh Amend-

ment does not bar a suit for the return of a specific sum

of money seized or held in violation of the constitution.‘

The principle of Tindal vy. Wesley has been repeatedly

reaffirmed by this Court. Great Northern Life Insurance

Co, v. Read, 322 U.S. 47 (1944) expressly sanctioned, not-

withstanding the Eleventh Amendment, actions to recover

“possession of specific property likewise wrongfully ob-

tained or held. ... In such cases the immunity of the sover-

eign does not extend to wrongful individual action and the

citizen is allowed a remedy against a wrongdoer person-

ally.” 322 U.S. at 50-51. Larson v. Domestic and Foreign

*“!WhHhere a suit is brought against defendants who claim to

act as officers of a state and, under color of an unconstitutional

statute, commit acts of wrong and injury to the property of the

plaintiff, fo recover money or property in their hands unlawfully

taken by them in behalf of the state .. [it] is not, within the

meaning of the amendment, an action against the state.” Ez Parte

Tyler, 149 U.S. 164, 190 (1893). (Emphasis added)

“(Where a suit is brought against defendants who claim to

act as officers of a state, and, under color of an unconstitutional

statute, commit acts of wrong and injury to the property of the

plaintiff, fo recover money or property in their hands unlawfully

taken by them in behalf of the state ... such a suit is not, within

the meaning of the amendment, an action against the state.” Scott

v. Donald, 165 U.S. 58, 68-70 (1897). (Emphasis added)

“{A] suit .. . brought against defendants who claiming to

act as officers of the State, and under the color of an uneconstitu-

tional statute, commit acts of injury and wrong to the rights and

property of the plaintiff ... to recover money or property in the

hands of such defendants, unlawfully taken by them in behalf

of the State... is not within the meaning of the Eleventh Amend-

ment an action against the State.” Pennoyer v. McConnaughy,

140 U.S. 1, 11 (1891). (Emphasis added)

Tindal v. Wesley, 167 U.S. 204, 220 (1897).

en eS

8

Commerce Corp., 337 U.S. 682 (1949), confirmed the hold-

ing of Tindal “that a suit to recover possession of property

owned by the plaintiff and withheld by officers of a state

was analogous to a suit to enjoin the officers from enforcing

an unconstitutional statute.” 337 U.S. at 698, n. 20.°

The same principle has been consistently applied to suits

against federal officials to recover possession of unconsti-

tutionally seized property. In United States v. Lee, 106

U.S. 196 (1882), federal officials expropriated land of the

late Robert E. Lee for use as a national cemetery *this

Court held that General Lee’s heirs could maintain an

action for ejectment against the officials involved. Land

v. Dollar, 330 U.S. 731 (1947), upheld an action to compel

the United States Maritime Commission to return certain

stock.!° Larson v. Domestic and Foreign Commerce Corp.,

337 U.S. 682 (1949), reaffirmed the decision in Lee that

sovereign immunity affords no defense to public officials

whose “possession of the property was an unconstitutional

use of their power.” 337 U.S. at 697.

The rule of Tindal and Lee is clearly correct. When a

public official seizes and holds private property in violation

of the constitution, he ceases to act as an agent of the state

and assumes the role of a mere private wrongdoer. Ex

parte Young, 209 U.S. 123 (1908). An action for the return

of such property in no sense interferes with the property

of the state, for the defendant holds the property solely

*See also Georgia R.R., etc. Co. v. Redwine, 342 U.S. 299, 304,

n. 14 (1952); Hopkins v. Clemson Agricultural College, 221 U.S.

636, 643 (1911); Ex Parte Young, 209 U.S. 123, 152 (1908).

1°The Court reasoned that where public officials “unlawfully

seize or hold a citizen’s realty or chattels, recoverable by appro-

priate action at law or in equity, he is not relegated to the Court

of Claims to recover a money judgment. The dominant interest

of the sovereign is then on the side of the victim who may bring

his possessory action to reclaim that which is wrongfully withheld.”

330 U.S. at 738.

4

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in his individual capacity and title thereto remains at all

time with the private owner."' Thus in the instant case

there is no need to spend any funds that are now or ever

were part of the public fise, but only to return a specific

amount illegally obtained and withheld by a state official.

The defendant’s continued retention of plaintiff’s property

constitutes an ongoing violation of plaintiff’s rights; in-

junctive relief to end that violation is essentially prospec-

tive in nature.” The Eleventh Amendment cannot bar

judicial redress for the seizure of plaintiff's property by a

state official, for such immunity would nullify the Four-

teenth Amendment’s ban on the taking of such property

without just compensation.'* When a public official unlaw-

fully appropriates such property and a private citizen sues

to enforce the constitution, it is the private citizen not the

official who assumes the mantel of the sovereign in imple-

1 “Since, then, the State of Pennsylvania had neither possession

of, nor right to, the property on which pronounced. ... There

remains no pretext for the allegation that the case is within [the

Eleventh} Amendment. . . .” United States v. Peters, 9 U.S.

(5 Cranch.) 115, 141 (1809).

#2“Although the plaintiff below was nominally the actor, the

action itself is purely defensive. Its object is merely to resist an

attempted wrong and to restore the status in quo as it was when

the right to be vindicated was invaded. In this respect it is upon

the same footing with the preventive remedy of injunction in

equity... .” Poindexter v. Greenhow, 114 U.S. 270, 295 (1885).

*8“Any other view leads to this result: That if a state, by its

officers, acting under a void statute, should seize for public use

the property of a citizen, without making or securing just compen-

sation for him, and thus violate the constitutional provision de-

claring that no state shall deprive any person of property without

due process of law (Chicago, B. d& O. R. Co. v. Chicago, 166 U.S.

226, 236, 241), the citizen is remediless so long as the state by its

agents, chooses to hold his property; for, according to the conten-

tion of the defendants, if such agents are sued as individuals,

wrongfully in possession, they can bring about the dismissal of

the suit by simply informing the court of the official character in

which they hold the property thus illegally appropriated.” Tindal

v. Wesley, 167 U.S. 204, 222 (1897).

10

menting public policies of the highest importance."* This

Court has expressly distinguished such an action for the

return of unlawfully seized and held property from an

ordinary suit for a refund of state taxes.”°

In United States v. Lee, this Court asked:

Shall it be said... that the courts cannot give a rem-

edy when the citizen has been deprived of his property

by force, his estate seized and converted to the use

of the government without lawful authority, without

any process of law, and without any compensation, be-

cause the President has ordered it and his officers are

in possession? If such be the law of this country it

sanctions a tyranny which has no existence in the

monarchies of Europe nor in any other government

which has a just claim to well-regulated liberty and the

protection of personal rights. 106 U.S. at 220.

The retention of illegally seized private property, which is

forbidden to individuals purporting to have acted by au-

14“The defendant in error is not [Virginia's] officer, her agent,

or her representative, in the matter complained of, for he has

acted . . . without her authority. The plaintiff in error, in

fact and in law, is representing her, as he seeks to establish her

law and vindiecates her integrity as he maintains his own right.”

Poinderter v. Greenhow, 114 U.S. 270, 293 (1885). See Newman

v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968).

15 Smith v. Reeves, 178 U.S. 436 (1900), held that such an ac-

tion for a refund was barred by the Eleventh Amendment. It

noted that. “this ease is unlike those in which we have held that

a suit would lie by one person against another person to recover

possession of specifie property, although the latter claimed he

was in possession as av officer of the state and not otherwise. In

such a ease, the settied doctrine of this court is that the question

of possession does not cease to be a judicial question-—as between

the parties actually before the court—because the defendant as-

serts or suggests that the right of possession is in the state of which

he is an officer or agent. Tindal v. Wesley.” 178 U.S. at 439. Ford

Motor Co. v. Treasury Department, 323 U.S. 459 (1945), which

relied upon and reaffirmed the decision in Nmith as to tax refunds,

in no way questioned the distinction drawn in Smith or the vital-

ity of Tindal.

a ee ee

11

thority of the President of the United States, is forbidden

as well to individuals claiming to have acted pursuant to

a coneededly unconstitutional state statute. The Four-

teenth Amendment’s requirement that private property

shall not be taken without just compensation

is but “an affirmance of a great doctrine established

by the common law for the protection of private prop-

erty. It is founded in natural equity, and is laid down

as a principle of universal law. Indeed, in a free gov-

ernment almost all other rights would become worth-

less if the government possessed an uncontrollable

power over the private fortune of every citizen.” Chi-

cago etc., R.R. Co. v. Chicago, 166 U.S. 226, 236 (1897).

The Eleventh Amendment was intended only to protect

“the genera] revenues of a State”, Edelman v. Jordan, 415

U.S. 651, 664 (1974); it does not license state officials to

supplement those revenues by expropriating the social se-

curity disability benefits and meagre savings of the men-

tally ill.

In concluding that the defendant could retain the prop-

erty he had unlawfully taken from plaintiff, the court of

appeals relied heavily on its recent decision in Fitzpatrick

v. Bitzer, 519 F.2d 559 (2nd Cir. 1975). Certiorari was

granted in Fitzpatrick on December 15, 1975. 44 U.S. L.W

3394. Under these circumstances it might be appropriate

to defer consideration of the instant case until a decision

is reached in Fitzpatrick. No. 75-251. Petitioner would sug-

gest, however, that the decision of the court of appeals is

so plainly inconsistent with the decisions of this Court as

to warrant summary reversal.

oe a

CONCLUSION

For the above reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Second Circuit.

Respectfully submitted,

Jack GREENBERG

Eric ScHNAPPER

Suite 2030

10 Columbus Circle

New York, New York 10019

MicHaEL CHURGIN

STEPHEN WIZNER

Dennis EK. Curtis

127 Wall Street

New Haven, Connecticut 06520 APPENDIX

Counsel for Petitioner

Opinion of the District Court, May 30, 1974

UNITED STATES DISTRICT COURT

D. ConNeEcTICUT

May 30, 1974

Civ. No. 15687

Rozsert A. McAu.irre,

v.

Avotr G. Cartson, Commissioner of Finance and Control

of the State of Connecticut.

Michael J. Churgin, and Stephen Wizner, New Haven,

Conn., for plaintiff.

Maurice Myrun, Asst. Atty. Gen., East Hartford, Conn.,

for defendant.

MeMoRANDUM OF Decision oN PLarIntiFr’s MoTION FOR

SuMMaARY JUDGMENT

Newmay, District Judge.

This suit raises interesting questions concerning fees

and procedures which Connecticut imposes upon some per-

sons who are mentally ill. The first is whether the State

can charge some, but not all, prisoners for their main-

tenance at a state mental hospital while they are serving

a criminal sentence. The second is whether the Commis-

sioner of Finance and Control can automatically become

the conservator of state mental patients with modest as-

sets without a hearing to determine their incompetency.

la

2a

Opinion of the District Court, May 30, 1974

The background facts leading up to the current contro-

versy are not in dispute. On August 26, 1971, piaintiff was

sentenced to serve a term of 360 days in the Hartford

Community Corectional Center after conviction for break-

ing and entering. On September 21, 1971, the Commis-

sioner of Corrections transferred him to a state mental

health facility, the Security Treatment Center in Midd'e-

town. Plaintiff served 218 days of his sentence at the

Security Treatment Center and was released on April 26,

1972. Pursuant to Conn.Gen.Stat. § 17-318,° the Commis-

sioner of Finance and Control billed plaintiff for $1,098.07,

1 Two statutes, Conn.Gen.Stat. §§ 17-194a and 17-246, authorize

the Commissicner of Corrections to transfer a state prisoner to a

state hospital for mental illness. Plaintiff does not claim that the

State failed to comply with the commitment requirements of these

statutes, nor does he attack their constitutionality. The constitu-

tionality of transfer procedures is a pending issue in Chesney v.

Manson, 377 F.Supp. 887 (D. Conn.1974).

2 Conn.Gen.Stat. § 17-318 provides:

When any person has been transferred from the State Prison,

the State Prison for Women, The Connecticut State Farm for

Women or the Connecticut Reformatory to a state hospital,

such person’s hospital expense prior to the termination of his

sentence shall be charged to the state. When any person has

been transferred from a jail to a state hospital, such person’s

hospital expense prior to the termination of his sentence shall

be paid out of the estate of such person, if he has any estate;

if he has no estate, it shall be paid by the state. If any per-

son. Whether transferred from the State Prison, the State

Prison for Women, The Connecticut State Farm for Women,

the Connecticut Reformatory or a jail, is committed to a

state hospital after the expiration of his sentence, such per-

son’s hospital expense shall be paid to the state in the manner

provided for payment in this chapter. (Emphasis added).

As a consequence of reorganization of Connecticut correctional

institutions, references to specific institutions in Conn.Gen Stat.

§ 17-318 should be construed as follows:

[“State] Prison” . . . shall be construed to mean the Con-

necticut Correctional Institution, Somers [hereafter CCI,

Le Ne ee el

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3a

Opinion of the District Court, May 30, 1974

the cost of his “hospital expense” at the Security Treat-

ment Center computed at the rate of $5.037 per day for

218 days. This sum was collected from social security

benefits that defendant was holding as representative payee

of the plaintiff. 42 U.S.C. § 405(j).

After expiration of his sentence, plaintiff was involun-

tarily committed to the Norwich Hospital, a state hospital

for the mentally ill. While at Norwich he deposited $150.00

in a patient’s account, intending to save the sum for fu-

ture use. Later he attempted to withdraw money from his

hospital account. However, he was informed that the funds

in his account would not be returned since the Commis-

sioner of Finance xnd Control had been appointed his con-

servator, pursuant to Conn.Gen.Stat. § 4-68g,* and had used

Somers]; “State Prison for Women” shall be construed to

mean the maximum security division of the Connecticut Cor-

rectional Institution, Niantic [hereafter CCI, Niantic] ; “jails”

or “jail” shall be construed to mean the Community Correc-

tional Centers . . . and those portions of the Connecticut Cor-

rectional Institution, Niantic, used to detain female persons

awaiting disposition of pending charges or to confine female

persons convicted of, or who plead guilty to, the commission

of misdemeanors and who have been sentenced to community

correctional centers . . .; “Connecticut Reformatory” shall

be construed to mean the Connecticut Correctional Institution,

Cheshire [hereafter CCI, Cheshire], “The Connecticut State

Farm for Women” shall be construed to mean the Connecticut

Correctional Institution, Niantic. Conn.Gen.Stat. § 1-1 (Supp.

1973).

* Conn.Gen.Stat. § 4-68¢ provides:

Whenever any person having property or an interest in prop-

erty is committed or admitted to a state institution for the

mentally ill or mentally retarded or, subsequent to such ecom-

mitment or admission, acquires property or an interest in

property, and the property is personal property of any kind

or nature, not in excess of five thousand dollars, or annual

income not in excess of said amount, no guardian or con-

servator shall be appointed, and the commissioner of finance

4a

Opinion of the District Court, May 30, 1974

the $150.00 to pay for plaintiff’s hospital treatment. Conn.

Gen.Stat. § 17-295(c). The Commissioner’s appointment as

plaintiff's conservator was not preceded by a probate court

hearing to ascertain whether plaintiff was “incapable of

managing his affairs,” Conn.Gen.Stat. § 45-70, as generally

required for designation of a conservator.

Plaintiff has moved for summary judgment in this ac-

tion seeking a declaratory judgment, pursuant to 42 U.S.C.

§ 1983, that Conn.Gen.Stat. §§ 17-318 and 4-68g violate the

Fourteenth Amendment of the United States Constitution.

Since the parties do not dispute the existence or the truth-

fulness of the material facts alleged in the pleadings and

in plaintiff's affidavits, the merits of plaintiff's constitu-

tional claims can appropriately be considered.

and control shall be the guardian or conservator of such per-

son, without court proceedings, only for the purposes herein-

after specified. He shall have authority to make any compro-

mise or exercise any option, with the approval of the attorney

general, for the purpose of collecting such funds or property.

He shall have authority to release, in behalf of such person,

his estate, any bank, insurance company, benefic’al organiza-

tion, executor, administrator, trustee, fiduciary ag-nt, cor-

poration, or individual, and, upon demand, any bank, insur-

ance company, beneficial organization, executor, administrator,

trustee, fiduciary agent, corporation or individual shall pay

to the corimissioner of finanee and control, or to such person

or persons as said commissioner directs, the amount due. Said

commissioner shall hold or use such property or funds for

the support and benefit of such person in the same manner

as a duly appointed conservator, and shall maintain records

of such property or funds and the disposition thereof. The

receipt of said commissioner or his agent shall be sufficient

authority for such bank, insurance company, beneficial or-

ganizaiion, executor, administrator, trustee, fiduciary agent,

corporation or individual for such payment, and shall dis-

charge its or his liability therefor.

5a

Opinion of the District Court, May 30, 1974

L.

Constitutionality of Conn.Gen.Stat. § 17-318

Plaintiff does not challenge the State’s power to charge

prisoners for their expenses. Instead, he contends that

§ 17-318 violates the Equal Protection Clause by creating

arbitrary classifications as to which prisoners must pay

and which expenses they must pay. Five distinctions are

identified, two concerning who must pay, and three con-

cerning what expenses must be paid. (a) Prisoners trans-

ferred to a state mental hospital must pay hospital costs

if they were transferred from a community correctional

center (jail), but not if they were transferred from other

penal institutions. (b) Prisoners transferred from a com-

munity correctional center to a state mental hospital must

pay hospital costs if they are men, but not if they are

women. (c) Prisoners covered by § 17-318 must pay for

their hospital costs, but not the costs of their maintenance

in jail. (d) Prisoners covered by § 17-318 must pay hospi-

tal costs if they were transferred to a state hospital for

the mentally ill, but not if they were transferred to a

general hospital for any other illness. (e) Prisoners cov-

ered by § 17-318 must pay for medical care at a state hospi-

tal for the mentally ill if they are transferred to such a

hospital for in-patient care, no matter how brief their

stay, but not for out-patient medical care no matter how

prolonged their treatment.

The parties agree that “strict” judicial scrutiny of these

classifications is not appropriate since they are not based

upon “suspect” criteria and do not infringe upon “funda-

mental” rights. Therefore, rather than showing that the

classifications created by 4 17-318 are premised upon some

compelling state interest, the State must prove that they

6a

Opinion of the District Court, May 30, 1974

“rationally [further] some legitimate, articulated state pur-

pose and therefore [do] not constitute an invidious diserim-

ination in violation of the Equal Protection Clause... .”

San Antonio Independent School Dist. v. Rodriguez, 411

U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

The first classification distinguishes between those in-

mates transferred to state mental hospitals from com-

munity correctional centers and those transferred from all

other penal institutions. Only the former are charged for

their hospital costs. Historically, felons were incarcerated

in state prisons and misdemeanants were committed to

county jails. Consequently, defendant argues, § 17-318 re-

flects a legislative decision that misdemeanants “should

have the same obligation to pay for hospital care as the

non-criminal citizen,” since, unlike felons, their brief con-

finement for one year or less does not significantly inter-

fere with their earning capacity or deplete their assets.

In essence, defendant claims that § 17-318 is based upon

the common law policy that persons treated at publie hu-

mane institutions will not be permitted to receive state

aid at the taxpayers’ expense if they are capable of reim-

bursing the publie for their care. Although statutes pro-

* The development of this common law policy and its impact

upon legislation was traced in State v. Ikey’s Estate, 84 Vt. 363,

366-367, 79 A. 856, 851 (1911):

By the common law of England it is the duty of the king to

take care of all his subjects who, by reason of their imbecility

and want of understanding, are incapable of taking care of

themselves. ...

Under our form of government the sovereign state has the

same common law duty resting upon it concerning the care

and custody of persons and estates of those who are idiots

from nativity, or who have lost their intellects, and become

non compos, or unable to take care of themselves .. .; and it

is manifest from the statutory regulations in this respect that

oe

oo mee

7a

Opinion of the District Court, May 30, 1974

viding state aid to citizens generally reflect this policy, its

application to state expenditures for maintaining and treat-

ing prisoners is less frequent, but not novel. Earlier de-

cisions often upheld the validity of statutes requiring

prisoners to reimburse the State for their may ‘enance.®

More recent cases have upheld prisoners’ liability for

mental health treatment received while serving their sen-

tences,* or while in custody at state hospitals because they

are unable to stand trial by reason of insanity.’

Connecticut undoubtedly has a legitimate interest in re-

lieving its taxpayers by requiring prisoners with earning

potential or assets to reimburse the State for the expense

of maintaining them in state hospitals. However, under the

current procedures for placing prisoners in state institu-

the policy of the state is, as at common law, that the estates

of such wards shall be appropriated to their proper main-

tenance, before they can be supported at the expense of the

state. Indeed, . . . the statute concerning the insane poor

. . goes further than this; for in cases falling within the

provisions of that section it must be found not only that the

insane person is destitute of means to support himself, but

also that he is without relatives bound by law to support him,

before an order can issue for his confinement at the expense

of the state. (Citations omitted).

* See People v. Hawkins, 157 N.Y. 1, 51 N.E. 257; 10 Mise. 65,

31 N.Y.S. 115 (1898); Jefferson County v. Hudson, 22 Ark. 595

(1861); State v. Isaac, 13 N.C. (2 Dev.L.) 47 (1828); Washburn

v. Belknap, 3 Conn. 502 (1821).

® See In Re Estate of Hockett v. State Dept. of Social Welfare,

177 Kan. 507, 280 P.2d 573 (1955); Green v. State, 272 S.W.2d

133 (Ct.Civ.App. of Tex.1954) ; Auditor General v. Hall, 300 Mich.

215, 1 N.W.2d 516 (1942); Auditor General v. Olezniezak, 302

Mich. 336, 4 N.W.2d 679 (1942).

’ See Briskman v. Central State Hospital, 264 S.W.2d 270 (Ky.

1954); Estate of Gestner v. Bank of America Nat'l Trust and

Savings Assn., 90 Cal.App.2d 680, 204 P.2d 77 (1949); State v.

Griffith, 36 N.E.2d 489 (Ct.App. Ohio 1941) ; State v. Ikey’s Estate,

84 Vt. 363, 79 A. 850 (1911).

8a

Opinion of the District Court, May 30, 1974

tions, this purpose is not rationally furthered by a stat-

utory classification based upon the assumption that a

prisoner’s place of incarceration is an accurate indicator

of his ability to pay his state hospital expense.

Any prisoner, irrespective of the length of his sentence,

may be transferred from one correctional facility to another

correctional institution if “it appears to the Commissioner

[of Corrections] that the best interests of the inmate or

the other inmates will be served by such action.” Conn.

Gen.Stat. § 18-86. Pursuant to 4 18-86, a misdemeanant or

a felon, initially incarcerated at a Community Correctional

Center under a sentence of one year or less,’ would be

transferred to CCI, Somers, if his background or the

nature of his offense required rehabilitative treatment

available at Somers or commitment to.a maximum security

institution. Therefore, misdemeanants and felons serving

identically brief sentences may be incarcerated at a Com-

munity Correctional Center or at CCI, Somers. However,

the inmate at the Community Correctional Center will be

charged for his state hospital expenses under § 17-318 on

the assumption that he has received a shorter sentence

than an inmate at CCI, Somers, and will be removed from

the competitive job market for a shorter period.°

* The sentencing provisions of Conn.Gen.Stat. § 53a-35(d)_ pro-

vide:

(d) ... [W]hen a person is sentenced for a class C or D

felony or for an unclassified felony, the maximum sentence

for which does not exceed ten years, the court may impose a

definite sentence of imprisonment and fiz a term of one year

or less. (Emphasis added).

*Under Conn.Gen.Stat. § 18-73, any male person between the

ages of sixteen and eighteen years of age who is amenable to re-

formatory methods may be committed by the Superior Court to

CCI, Cheshire, if he is convicted of an offense which is punish-

able by imprisonment in the CCI, Somers, or in a Community

etme ts oe ere ed

A Me te i ll nt te NR t=

ee ee ee

I Ar le. Mls eneni Nee NO Ae

9a

Opinion of the District Court, May 30, 1974

Many inmates at Community Correctional Centers who

are billed for their hospital costs may actually be impris-

oned for longer periods than inmates at CCI, Somers. A

felon receiving an indeterminate sentence in excess of one

year from a Circuit Court, Conn.Gen.Stat. § 53a-35, is

initially incarcerated at a Community Correctional Center.

The Commissioner of Corrections then determines whether

he should remain in a Community Correctional Center or

whether it would be in the inmate’s best interest to trans-

fer him to CCI, Somers, for the balance of his sentence.

Since many felons receiving indeterminate sentences may

have already earned extensive jail credit awaiting trial

and sentencing, they may net be transferred to CCI,

Somers, but may serve the remaining portion of their in-

determinate sentences in a Community Correctional Center.

Correctional Center, for a shorter period than life. A minimum

reformatory sentence of nine months may be imposed under this

section, and a reformatory sentence of any length may be sus-

pended after six months.

Pursuant to Conn.Gen.Stat. § 18-75, the Cireuit Court may sen-

tence any male person between the ages of sixteen and twenty-one

years of age to CCI, Cheshire, if the maximum penalty for his

offense does not exceed imprisonment in state prison for five vears.

There is no statutory minimum sentence for persons sentenced

under this provision, and it is not uncommon for prisoners to be

paroled after serving nine months of their sentence.

Correlating these sentencing provisions with § 17-318, a twenty-

year-old misdemeanant who is incarcerated at CCI, Cheshire, for

nine months pursuant to § 18-75 will not be charged for his state

hospital expenses despite his brief period of inearceration. How-

ever, another twenty-year-old misdemeanant who serves a nine-

month sentence for the same offense in a Community Correctional

Center, because he is not amenable to reformatory methods, will

be billed for his hospital expenses athough his earning capacity

is impeded for an equal period of incarceration. Obviously, what-

ever historical validity may have existed for presuming that in-

dividuals in the State Reformatory would be less able to bear their

hospital costs than inmates in jail has been significantly dimin-

ished by more recent sentencing provisions.

10a

Opinion of the District Court, May 30, 1974

If his jail time credit is added to the remaining portion

of his sentence, a felon serving an indeterminate sentence

in excess of one year at a Community Correctional Center

may actually be imprisoned for a longer period than a

felon or misdemeanant serving a sentence of less than one

vear at Somers.

Even if all inmates at CCI, Somers, were incarcerated

for longer periods than prisoners at Community Correc-

tional Centers, a statutory classification based upon place

of incarceration would not rationally advance the state’s

interest in charging mental hospital expenses only to pris-

oners with income or assets. Under Conn.Gen.Stat. § 18-7,

an inmate at Somers may be employed during his impris-

onment. His wages are deposited in a bank account and

are paid to him upon his release. Conn.Gen.Stat. § 18-85.

Ilowever, if an inmate is still in eustody, the warden at

CCI, Somers, may pay any portion of the funds to the

inmate or his relatives if their expenditure is necessary for

the inmate’s or his relatives’ welfare. Jd. Since an inmate’s

transfer from Somers to a state mental hospital is for his

own welfare, the funds from his employment would pre-

sumably be available for paying his hospital expenses. It

is arbitrary to exempt his assets, ineluding his readily-

available accrued wages, from being used for his state hos-

pital costs and to charge inmates at Community Corree-

tional Centers for such expenses when they may be unable

to obtain employment during confinement or immediately

after release, and may be overburdened with other obliga-

tions. Moreover, there are less job opportunities in jails

than in prisons.

The second classification concerns the distinction between

male misdemeanants imprisoned in a Community Corree-

lla

Opinion of the District Court, May 30, 1974

tional Center and female misdemeanants serving identical

sentences at CCI, Niantic. Conn.Gen.Stat. § 1-1 (Supp.

1973) states that when the term “jail” is employed in a

statute, it means “. . . those portions of the Connecticut

Correctional Institution, Niantic, used to detain female

persons awaiting disposition of pending charges or to con-

fine female persons convicted of, or who plead guilty to,

the commission of misdemeanors and who have been sen-

tenced to community correctional centers. . . .” Since

§ 17-318 provides that the estate of any person who is

transferred from a “jail” to a state hospital shall be

charged for hospital expenses, it is arguable that female

misdemeanants incarcerated at CCI, Niantic, are inearcer-

ated in a “jail” within the meaning of Conn.Gen.Stat. § 1-1

and are therefore liable for their state hospital expenses.

However, the State does not dispute plaintiffs point that

female misdemeanants at CCI, Niantic, serving the same

sentence as a male misdemeanant at a Community Corree-

tional Center are in fact not charged for their state hos-

pital costs under § 17-318.

It is difficult to perecive how a classification based upon

the sex of an inmate bears a substantial relation to the

State’s interest in lightening the burden of taxpayers by

charging prisoners with assets for their state hospital ex-

penses. Perhaps this classification was derived from the

outdated notion that females in our society do not possess

their own income or assets but receive support from their

families or spouses. In Frontiero v. Richardson, 411 U.S.

677, 689 n. 23, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973),

the Supreme Court observed:

In 1971, 48% of all women over the age of 16 were

in the labor foree, and 18% of all women worked full

12a

Opinion of the District Court, May 30, 1974

time 12 months per year. See U.S. Women’s Bureau,

Dept. of Labor, Highlights on Women’s Employment

& Education 1 (W.B. Pub. No. 72-191, Mar. 1972).

Moreover, 41.5% of all married women are employed.

See U.S. Bureau of Labor Statistics, Dept. of Labor,

Work Experience of the Population in 1971, p. 4 (Sum-

mary Special Labor Force Report, Aug. 1972)... .

[T]he median income for all women over the age of

14, including those who are not employed, is approxi-

mately $2,237. See Statistical Abstract of the United

States Table No. 535 (1972), Source: U.S. Bureau of

the Census, Current Population Reports, Series P-60,

No. 80....

Therefore, current employment statistics for females refute

whatever historical validity there may have been for accord-

ing such differential treatment to female misdemeanants

under § 17-318. The Supreme Court’s recent upholding of

a State’s tax exemption for widows, Kahn v. Shevin, 416

U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), does not

validated Connecticut’s attempt to impose added charges

upon prisoners simply because they are males.

It is conceivable that it would be more efficient for the

State not to bill female misdemeanants at CCI, Niantic, for

their state hospital expenses since it might be time con-

suming to determine which females at Niantie are “in jail”

within the meaning of Conn.Gen.Stat. §§ 1-1 and 17-318.

Although the Supreme Court is divided on the issue of

whether a classification based on sex is inherently suspect,’®

1° Nee Kahn v. Shevin, 416 U.S. 351. 94 S.Ct. 1734, 40 L.Ed.2d

189 (1974); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764,

36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251,

30 L.Ed.2d 225 (1971).

ee i be ee

13a

Opinion of the District Court, May 30, 1974

recent decisions unequivocably indicate that “any statutory

scheme which draws a sharp line between the sexes, solely

for the purpose of achieving administrative convenience,

necessarily commands ‘dissimilar treatment for men and

women who are similarly situated, and therefore involves

the ‘very kind of arbitrary legislative choice forbidden by

the [Equal Protection Clause of the Fourteenth Amend-

ment]....’ Reed v. Reed, 404 U.S., at 77, 76, 92 S.Ct. 251.”

Frontiero v. Richardson, supra, 411 U.S., at 690. Obvi-

ously, mere administrative convenience is not sufficient to

sustain § 17-318’s differential treatment of male and female

misdemeanants against a constitutional challenge on equal

protection grounds.

Turning now to the variations among payments that are

charged, the third classification makes a distinction between

maintenance costs at a jail, which are not charged, and

maintenance expenses at a mental hospital, which are

charged. If, as is likely, maintenance costs at a mental

hospital are higher than at a jail, the state’s purpose of

easing the burden on taxpayers might well be rationally

furthered by charging for mental hospital costs but not

jail costs. Even if the factual basis for such a distinction

were demonstrated, the further distinctions that § 17-318

makes among chargeable costs add to its constitutional

infirmity.

The fourth classification makes a distinction between hos-

pitalization costs for mental illness, which are charged, and

hospitalization costs for all other illnesses, which are not

charged."' It may well be that in some instances the costs

't Under § 18-52a, a prisoner incarcerated in a Community Cor-

rectional Center who “becomes sick with a disease or malady which

requires hospitalization for surgery or other medical eare may be

transferred . . . to any state hospital having facilities for such

l4a

Opinion of the District Court, May 30, 1974

of mental illness hospitalization exceed the costs of hos-

pitalization for other illnesses, but there has been no dem-

onstration that this is true generally, or for the class of

transferred prisoners in particular. The State has not

attempted to categorize the costs to be charged by refer-

ence to a minimum hospital stay or a minimum dollar

amount. It has simply selected mental illness out of all the

conditions that may require hospitalization and imposed

on one class of prisoners a charge for such care, There is

no basis for concluding that this classification of costs

rationally furthers a legitimate state interest.

The fifth classification makes a distinction between men-

tal illness expenses of hospitalized prisoners, which are

charged, and out-patient mental illness expenses of pris-

oners, Which are not charged. There may be facts to dem-

onstrate that, on the average, hospitalization expenses for

mentally ill prisoners exceed the costs of their out-patient

are, although the risk of overinclusiveness of this classifi-

cation appears high, especially in view of the modern trend

toward reducing the in-patient treatment time for mental

illness. Whether this classification standing alone would

invalidate the statute need not he decided, since the combi-

nation of all the classifying criteria plainly place the stat-

ute beyond the outer limits of even a restrictive view of

the equal protection clause.

eare....” Sinee § 17-318 refers to charging prisoners for state

hospital expense without limiting the state’s right of reimburse-

ment expenses incurred at state mental hospitals, it is arguable

that prisoners transferred to state hospitals for surgery or other

medical care, are also liable for their hospital expenses. However,

the defendant has conceded that the § 17-318 has been applied to

obtain reimbursement only for hospital expenses ineurred by

prisoners transferred to state mental health facilities.

ee el

l5a

Opinion of the District Court, May 30, 1974

I.

Constitutionality of Conn.Gen.Stat. § 4-689

y

Conn.Gen.Stat. § 4-68g creates a significant exception to

the procedural requirements for the appointment of a con-

servator for a person receiving state care or assistance.”

Prior to the appointment of a conservator, patients at state

institutions for the mentally ill who have personal property

or an annual income of less than $5,000.00 are not afforded

the procedural safeguards of notice and an adversary com-

petency hearing by a probate court. Instead, their mere

commitment or admission to a state institution for the

mentally ill authorizes the Commissioner of Finance and

Control to serve as their conservator and to hold or use

their personal property or income for their support and

benefit “in the same manner as a duly appointed con-

servator.” Conn.Gen.Stat. §4-68¢. Plaintiff contends that

§ 4-68g infringes his right to due process of law, guaran-

teed by the Fourteenth Amendment, because it deprives

him of his civil rights to enter and enforce contracts, settle

obligations or make gifts of his property without the essen-

tial safeguards of notice and an op, ortunity to be heard

on the issue of his competency.

—_—

'? Under Conn.Gen.Stat. § 45-70, the Commissioner of Finance

and Control may apply to a probate court for the appointment of

a conservator for any person with property who is receiving state

care or assistance. If the person receiving state aid is in a state

institution, notice of a competency hearing must be left with the

supervisor of the institution at least five days before the hearing

date. Conn.Gen.Stat. § 45-71. The aileged incompetent may at-

iend the probate hearing with counsel, cross-examine adverse

Witnesses, and present evidence to refute his competency. If there

is evidence sufficient to support a finding that the person receiving

state care is “incapable of managing his affairs,” the probate court

will appoint a conservator for his property. Conn.Gen.Stat. § 45-70.

l6a

Opinion of the District Court, May 30, 1974

Conn.Gen.Stat. § 4-68g¢ creates the presumption that per-

sons with personal property or assets of less than $5,000.00

are incapable of managing their affairs after commitment

or admission to a state mental institution. This presump-

tion of incompetency is irrefutable and irreversible since

mental patients falling within the purview of §4-68g are

never afforded the opportunity to establish their ability

to manage their affairs.

Prior decisions have indicated that involuntary commit-

ment to a mental institution does not support even a pre-

sumption that a mental patient is incompetent. In Winters

v. Miller, 446 F.2d 65, 68 (2d Cir. 1971), the Court of Ap-

peals stated:

... [T]he law is quite clear in New York that a finding

of “mental illness” even by a judge or jury, and com-

mitment to a hospital, does not raise even a presump-

tion that the patient is “incompetent” or unable ade-

quately to manage his own affairs. Absent a specific

finding of incompetence, the mental patient retains

the right to sue or defend in his own name, to sell or

dispose of his property, to marry, draft a will, and,

in general to manage his own affairs. (Citations

omitted).

Relying upon this statement in Winters, Judge Blumenfeld

indicated in Logan v. Arafeh, 346 F.Supp. 1265, 1269-1270

(D.Conn.1972), that involuntary commitment of a mental

patient, pursuant to Conn.Gen.Stat. § 17-183, does not create

a presumption of incompetency. By creating an irrebutable

presumption of incompetency, § 4-68g¢ denies plaintiff due

process of law. Cf. Cleveland Bd. of Education v. LaFleur,

414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Viandis

al te

—

, Dee ee ee ee ee ee ee ee

l7a

Opinion of the District Court, May 30, 1974

v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) ;

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d

291 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586,

29 L.Ed.2d 90 (1971).

The statute also conflicts with the qual Protection Clause

by exempting from the presumption of incompetency per-

sons who own real property of any value or who possess

personal property or income in excess of $5,000.00. These

persons are entitled to an independent competency hearing

in recognition of the fact that all mental patients are not

incapable of managing their affairs. Obviously, it is irra-

tional to think that all or even most state mental patients

without real property and without personal property and

income of more than $5,000.00 are incompetent.

The State undoubtedly has a legitimate interest in ob-

taining reimbursement for state mental health care ren-

dered to individuals with assets. There may also be a

greater urgency in establishing state control over the es-

tates of state mental health patients with modest assets

since their funds could be rapidly depleted.

Pursuant to Conn.Gen.Stat. § 45-72, a probate court may

appoint a temporary conservator for thirty days if two

physicians certify that a person is incapable of managing

his affairs. Prior to the expiration of this thirty-day period,

a permanent conservator may be appointed after the alleged

incompetent has been afforded a full-scale competency hear-

ing. Conn.Gen.Stat. §§ 45-70 and 45-71. It would appear

that these procedures could be used to appoint the Com-

missioner of Finance and Control as the temporary con-

servator of state mental health patients with modest estates

upon certification by physicians that they are ineapable of

managing their affairs. Since probate court hearings at

state mental institutions are not infrequent, a full-scale

18a

Opinion of the District Court, May 30, 1974

competency hearing could be scheduled within thirty days

of the appointment of the Commissioner as temporary con-

servator. Under these procedures, the State would also

avoid the cost of administering the estates of mental

health patients who are competent. Perhaps the statutes

could be amended to permit the Commissioner to initiate

such proceedings.

There is also merit to plaintiff's claim that ‘ 4-68¢ stig-

matizes a mental patient as an incompetent without due

process of law. In Wisconsin v. Cinstantineau, 400 U.S.

433, 91 S.Ct. 507, 27 L.Bd.2d 515 (1970), the Supreme Court

sustained a constitutional challenge to a statute permitting

the “posting” of persons as excessive drinkers without af-

fording them notice or an opportunity to be heard. Pro-

cedural due process must be satisfied whenever the State

attaches a “badge of infamy” to a citizen, although it may

“not involve the stigma and hardships of a criminal con-

viction.” Anti-Facist Comm. v. McGrath, 341 U.S. 123,

168, 71 S.Ct. 624, 647, 95 L.Ed.2d 817 (1951) (eoneur-

ring opinion). In Dale v. Hahn, 440 F.2d 633 (2d Cir.

1971), the Court of Appeals expressly characterized in-

competency as a stigma.

Since the plaintiff’s incompetency cannot be presumed

from his involuntary commitment to Norwich Hospital,

he was not officially branded with the stigma of being un-

able to manage his affairs until the Commissioner of Fi

nance and Control was appointed his conservator, and this

occurred without giving him any hearing on the issu» of

his competeney.

Since Conn.Gen.Stat. §$ 17-318 and 468g violate the

Fourteenth Amendment, plaintiff's motion for su:nimors

judgement is granted.’* Judgment will enter declaring

'’ Plaintiff has requested this Court to order the defendant to

return with interest from the date of seizure the property taken

19a

Opinion of the District Court, May 30, 1974

. 17-318 unconstitutional to the extent that it imposes hos-

pital costs upon any person transferred from a jail as de-

fined in Conn.Gen.Stat. 41-1, and declaring § 4-68g¢ uncon-

stitutional in its entirety.

from him pursuant to Conn.Gen.Stat. §§ 17-318 and 4-68g. No

order appears necessary at present, since it is expected that, in

light of this decision declaring the challenged statutes unconstitu-

tional, defendant will agree to return to plaintiff the property

taken from him. If this does not oecur, plaintiff can apply for a

supplemental judgment. At that time consideration can be given

to whether defendant has available a defense of sovereign immu-

nity, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d

662 (1974). or whether such defense is inapplicable to what is

essentially a claim for restitution.

—.........._...__ eee

20a

Opinion of the District Court, January 16, 1975

UNITED STATES DISTRICT COURT

D. Connecticut

Jan. 16, 1975

Civ. No. 15687

Ropert A. McAvuirre,

v.

Avotr G. Cartsoxn, Commissioner of Finance and Control

of the State of Connecticut.

Michael J. Churgin, Stephen Wizner, New Hava, Conn.,

for plaintiff.

Maurice Myrun, Asst. Atty. Gen., East Hartord, Conn.,

for defendant.

Rvuixe on Puarntirr’s Motion ror SupPpLEMENTAL RELIEF

Newman, District Judge.

Plaintiff’s motion for supplemental relief presents in an

unusual context questions concerning waiver of Eleventh

Amendment protection. In the first stage of this litigation,

brought pursuant to 42 U.S.C. § 1983, this Court granted

plaintiff's motion for summary judgment and entered an

order declaring unconstitutional Conn.Gen.Stat. §4 17-318

and 4-68¢, McAuliffe v. Carlson, 377 F.Supp. 896 (D.Conn.

1974) (McAuliffe I). Under the authority of these stat-

utes defendant, Connecticut’s Commissioner of Finance and

matin %ie

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2la

Opinion of the District Court, January 16, 1975

Control, had taken two sets of funds belonging to plain-

tiff, and had applied the money to reimburse the State

for expenses incurred in providing care for plaintiff at two

State mental health facilities.

The first sum of money taken by defendant was $1,098.07

in disability benefits due plaintiff under Title II of the

Social Security Act. Plaintiff had been transferred to the

Security Treatment Center, Middletown, from the Hart-

ford Community Correctional Center, and 417-318 made

all such transferees liable for the costs of their “hospitali-

zation.” To enforce this liability against plaintiff, defen-

dant applied, under the authority conferred on him by

Conn.Gen.Stat. § 4-68e,' to the Secretary of Health, Edu-

cation and Welfare, who authorized defendant to receive

plaintiff’s social security benefits as “representative payee,”

42 U.S.C. §405()), 20 C.F.R. § 404.1601, and to expend

those funds for plaintiff’s use and benefit.

Plaintiff himself never had control over or possession

of these funds. They were sent directly to defendant as

representative payee, and he, in effect, transferred them

to himself as Commissioner of Finance and Control and

billing agent for the State of Connecticut. McAuliffe I

held the statute making plaintiff liable for his hospital

costs unconstitutional as a denial of equal protection; this

use of plaintiff's funds was therefore unlawful.

The second sum was $150 over which plaintiff did ini-

tially have control. After being transferred from the Se-

curity Treatment Center to Norwich Hospital, plaintiff

had begun receiving his own social security benefits pur-

1 Although the statute does not provide explicitly for the Com-

missioner’s assumption of the role of representative payce, plain-

tiff has alleged that this statute confers such authority, defendant

has not disputed the contention, and no contrary authority has

been found.

22a

Opinion of the District Court, January 16, 1975

suant to the Secretary’s decision to remove the Commis-

sioner as representative payee. Plaintiff had deposited his

disability benefits in a paticnt’s account at the hospital,

expecting to draw on the account for his personal needs.

Section 4-68g¢ authorized defendant automatically to act

as plaintiff’s conservator. Defendant assumed this position

for the purpose of paying the balance in plaintiff's account

to himself, again as billing agent for the State, to cover

plaintiff’s hospital bill. Though plaintiff's obligation to

pay these costs was entirely lawful, McAuliffe I held that

defendant’s automatic “appointment” as conservator vio-

lated due process requirements; defendant’s acquisition

of the $150 was therefore unlawful.

Plaintiff’s complaint sought, in addition to declaratory

relief, an order that the State return plaintiff's funds. Me-

Auliffe I deferred such a ruling, and indicated that if the

State failed to return the funds in response to the declara-

tory judgment, plaintiff could move for supplemental re-

lief, at which time the Court would be confronted with

the issue of sovereign immunity, 377 F.Supp. at 906, n. 13.

The State declined to return the money, and the present

motion for an order directing the return, and for attor-

neys’ fees and costs, followed. Defendant has responded

to the motion by urging that this Court is without juris-

diction. He argues that he is sued in his official capacity,

that the State has not consented to be sued, and that the

claim for monetary relief is therefore barred by the Elev-

enth Amendment.

The initial question is whether the Eleventh Amendment,

if not waived, provides protection against plaintiff’s claims

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d

662 (1974), suggests that it does. Like the claim there for

retroactive welfare benefits, plaintiff’s claims here will be

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23a

Opinion of the District Court, January 16, 1975

paid from the State treasury and are owed because of a

breach of a legal duty by a State official. Plaintiff contends

Jordan, which did not involve money taken from the claim-

ants, should be limited to claims for state funds, pointing

out that the money sought here belonged to the plaintiff

before the defendant acquired it.

The argument suggests that the Eleventh Amendment

does not insulate a state from claims for restitution. Such

an exception would still leave a state protected from un-

limited assaults on its fise, and would therefore appear

consistent with the values generally protected by the

Eleventh Amendment. The Supreme Court, however, has

previously held the Amendment available to bar a tax-

payer’s claim for a refund of his own money unlawfully

collected. Ford Motor‘ v. Department of Treasury, 323

U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The claimant

in Ford Motor Co. made the decision, however unwillingly,

to part with his money, whereas plaintiff here had his

money taken with no action on his part at all, but there

is no intimation in the opinions in Ford Motor Co. or

Jordan that original ownership of the claimed funds de-

termines Eleventh Amendment protection. Once the money

enters the state treasury, the Eleventli Amendment bars

its return. McAuliffe may therefore recover only if the

State has waived the Amendment's protection and con-

sented to McAuliffe’s suit.

Prior decisions on Eleventh Amendment waiver offer

little guidance. If the defendant’s liability arose from

activity outside the normal sphere of governmental oper-

ations, waiver could be found. See Parden v. Terminal R.

Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964).

However, neither maintaining mental health facilities, ¢/.

Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973); Rothstein

24a

Opinion of the District Court, January 16, 1975

v. Wyman, 467 F.2d 226 (2d Cir. 1972), nor seeking reim-

bursement from patients for the services provided in such

facilities, is so far beyond usual state activities as to

remove Eleventh Amendment jrotections.”. But an issue

of waiver nevertheless remains because of the particular

means by which the State authorized the Commissioner

to seek reimbursement for hospitalization expenses.’ With

respect to each set of funds the question presented is

whether the statute authorizing the Commissioner’s as-

sumption of a fiduciary role states with sufficient clarity

that the Commissioner will have the same exposure to suit

as would a private citizen serving in the same role. See

Edelman v. Jordan, supra, 415 U.S. at 673, 94 S.Ct. 1347.

With respect to the funds taken by defendant as repre-

sentative payee, the legislature provided explicitly for the

Commissioner to perform his fiduciary duties with pre-

cisely the same powers and obligations as any other fidu-

ciary. Conn.Gen.Stat. §4-68b creates the office of Estate

Administrator, whose occupant serves under the Commis-

sioner of Finance and Control. It was as the Estate Ad-

* Though the State undoubtedly performs a traditional function

in seeking to collect funds owing to it, there is room for doubt

whether the means used here are sufficiently within normal State

activity to preserve Eleventh Amendment protection. Having a

state official act as representative payee and as conservator for one

alleged to owe funds may be valid techniques for collecting money,

but they are somewhat unusual. Decision need not rest on this

distinction, however, in view of the way the State employed these

techniques,

‘The situation would have been entirely different if, for exam-

ple, a relative of plaintiff had served as representative payee and

as conservator. If the State had collected from sueh a private

fiduciary, the Eleventh Amendment would clearly have barred

plaintiff's claims, even if the obligation to pay was later declared

to be without legal foundation or if there was a defect in the

procedure for designating the fiduciary.

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25a

Opinion of the District Court, January 16, 1975

ministrator that the Commissioner became representative

payee, see n. 1, supra. Section 4-68e empowers one holding

the office of Estate Administrator to act, inter alia, in any

fiduciary capacity “under ... any instrumentality .. . of

the United States qualified to appoint fiduciaries ....”

The statute grants the Administrator all “the same rights

and powers” of other fiduciaries, and subjects him to “the

same duties and obligations as are possessed by and im-

posed upon guardians, conservators, administrators and

other fiduciaries ....” (Kmphasis added.) The Depart-

ment of Health, Education and Welfare is without doubt

an instrumentality of the United States qualified to ap-

point fiduciaries, and a representative payee clearly is

such a fiduciary, see 20 C.F.R. § 404.1601 et seq.

The conclusion is the same with respect to the statute

authorizing the Commissioner’s service as conservator.

Conn.Gen.Stat. §4-68¢ empowers the Commissioner, as

statutory conservator, to “hold or use such property or

funds for the support and benefit of such person in the

same manner as a duly appointed conservator ....”*

(Emphasis added.)

Each statute describes the roles available to the Com-

missioner by reference to traditional fiduciary relation-

ships with clearly defined sets of powers and duties. Fach

statute must thus be taken to reflect not only an intent

to allow the Commissioner to serve effectively as the

State’s bill collector, but also a carefully expressed con-

cern that the Commissioner do so with strict regard for

‘Neither statute involved here raises the question whether a con-

sent to suit permits such suits to be brought only in state courts,

or in both federal and state courts. Compare, e.g., Ford Motor Co.

v. Dept. of Treasury, supra; Medicenters of America, Inc. v. Com-

monwealth of Va. 373 F.Supp. 205 (E.D.Va. 1974), with Flores

v. Norton & Ramsey Lines, Inc., 352 F.Supp. 150 (W.D.Tex. 1972).

26a

Opinion of the District Court, January 16, 1975

the usual legal rights of persons in piaintiff’s cireum-

stances. When the legislature authorized the Commissioner

to become a conservator, it took into account all the con-

tent that centuries of judicial construction have added to

that title. Similarly, although the term “representative

payee” does not appear in § 4-68e, the references in earlier

portions of that statute to specific fiduciary roles make

plain that the Commissioner is to perform the functions

of a particular office and not merely receive checks for the

benefit of the State.

Neither statute states in terms that the Commissioner

qua fiduciary is subject to suit, but such language is for

the foregoing reasons, if not superfluous, certainly unnec-

essary. Each statute involved here very clearly imposes

on the Commissioner the obligations normally associated

with the offices he is empowered to assume. Such careful

specification of obligations would be meaningless unless

the legislature had contemplated that the normal means

for enforcing such obligations would be available. The

inference is thus inescapable that the Connectient General

Assembly has consented to suits against the Commissioner

of Finance and Control to enforce fiduciary obligations

assumed by him when he acts pursuant to the authority

of Conn.Gen.Stat. <4 4-68e and 4-68¢,

There remains for consideration the liability of a fidu-

ciary for the actions taken by the defendant. That liability

is clear as to the $1,098.07 used to pay the obligation un-

constitutionally created by § 17-318. By consenting for

his ward to payments not constitutionally required, the

Commissioner violated his fiduciary duties. When a fidu-

ciary receives funds to be used for the benefit of his ward,

he becomes debtor to the ward for that amount, cf. Law-

rence v. Security Co., 56 Conn, 423, 441, 15 A. 406 (1888),

wea ©

———s

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27a

Opinion of the District Court, January 16, 1975

and he relieves himself of that obligation only by making

payments to or for the benefit of the ward. Ibid. An im-

proper payment does not affect the debtor-creditor rela-

tionship thus established, but rather becomes the personal

obligation of the fiduciary. Elmendorf v. Poprocki, 155

Conn. 115, 120, 230 A.2d 1 (1967); Lawrence v. Security

Co., supra; Brown v. Eggleston, 53 Conn. 110, 116-117, 2

A. 321 (1885).

Among the duties imposed on Connecticut fiduciaries is

the protection of the ward’s assets from unjust and illegal

claims. Winchell v. Sanger, 73 Conn. 399, 47 A. 706 (1900) ;

Clement’s Appeal from Probate, 49 Conn. 519 (1882). A

fiduciary who makes an improper payment is accountable

to his ward for the sum so disbursed. Elmendorf v. Pop-

rocki, supra; Dettenborn v. Hartford National Bank &

Trust Co., 121 Conn. 388, 185 A. 82 (1936); Brown v. Egg-

leston, supra, and good faith is no defense to that liability.

Cf. State v. Washburn, 67 Conn. 187, 34 A. 1034 (1896);

Stempel v. Middletown Trust Co., 7 Conn.Supp. 205

(Super.Ct.1tfd.Cty.1939), remanded on other grounds, 127

Conn. 206, 15 A.2d 305 (1940). If restitution is not made

voluntarily, it may be ordered by a court. Ibid.

Defendant’s breach of duty also involves a second ele-

ment. The funds were taken not only in payment of an

obligation unconstitutionally imposed, but also for the

benefit of the fiduciary and the fiduciary’s employer. See

Clement’s Appeal from Probate, supra; Holbrook v. Brooks,

33 Conn. 347 (1866). Under all the cireumstances, the

breach of trust is patent, and restitution is a particularly

appropriate remedy.

The appropriateness of surcharging the Commissioner

for his acts as conservator in using the $150 of social secur-

ity payments is somewhat less obvious. Although the Com-

missioner’s appointment as conservator pursuant to § 4-68g

28a

Opinion of the District Court, January 16, 1975

was defective, the payment he made in that capacity was

in response to a legitimate obligation imposed on plaintiff

to reimburse the State, to the extent he was able, for the

expenses of his eare. It could be argued that on these

facts the Connecticut courts would treat the Commissioner

as a guardian de son tort, see 39 C.J.S. Guardian and Ward

<3, at p. 13, and credit him for the expenditures. See In re

Gilfillen’s Estate, 170 Pa, 185, 32 A. 585 (1895).

Defendant has chosen to rely solely on the Eleventh

Amendment defense, however, see Fed.R.Civ.P. 12(b). He

has not raised any other defense, perhaps because he has

concluded that his state more closely resembles that of a

creditor who would not be permitted to reach these social

security funds, Philpott v. Essex County Welfare Board,

409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 698 (1973), 42 U.S.C.

«407, than it does that of a bona fide fiduciary who could

appropriately apply the funds against plaintiff's obligation

to the State. see 20 C.F.LR. § 404.1606. See also McDougald

v. Norton, 361 F.Supp. 1325, 1326 n. 2 (D.Conn.1973) (three-

judge court). In any event, the Eleventh Amendment de-

fense has failed, no other defense has been interposed, and

restitution is therefore proper.

Plaintiff's motion for attorneys’ fees stands on a differ-

ent footing. The Court does have discretionary authority

to award fees in a $1983 suit, Bridgeport Guardians, Ine.

y. Members of Bridgeport Civil Service Commission, 497

F.2d 1113 (2d Cir. 1974), but the facts of the present case

do not make such an award appropriate. Defendant’s con-

tinued refusal to refund the money, even after the declara-

tory judgment, raised legitimate and substantial questions

of Eleventh Amendment law. The refusal certainly cannot

he characterized as that kind of “unreasonable, obdurate

obstinacy” that justifies imposing attorneys’ fees as a pen-

29a

Opinion of the District Court, January 16, 1975

alty, compare Stolberg v. Members of the Board of Trustees

for the State Colleges of the State of Connecticut, 474 F.2d

485, 490 (2d Cir. 1973). Section 1983 itself provides no

explicit encouragement for the award of attornevs’ fees

Bridgeport Guardians, supra, 497 F.2d at 1115: compare

Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct.

2006, 40 L.Ed.2d 476 (1974), and plaintiff's victory has

me created a fund for the benefit of a class, see id. at 706

n. 8.

Accordingly, it is hereby ordered that judgment enter

against the defendant Commissioner of Finance and Con-

trol for $1,098.07 plus $150.00, with interest at 6% from

June 30, 1972, and January 19, 1973, respectively. Plain-

tiff’s motion for attorneys’ fees is denied, but he mav re-

cover his costs.

30a

Opinion of the Court of Appeals, August 1, 1975

UNITED STATES COURT OF APPEALS

For tHe Seconp Circvit

—_—_—_—_~-e+

No. 951—September Term, 1974.

Decided August i, 1975.)

Docket No. 75-7125

(Argued June 20, 1975

-—_ =

Ropert A. McAvutirre,

Plaintiff -A ppellee,

ve

Apotr G. Carusoxn, Commissioner of Finance

and Control of the State of Connecticut,

Defendant-A ppellant.

7

y

Before:

Lus«BaARD, Grppons* and GuRFEIN,

Circuit Judges.

Appeal from a supplemental order of the United States

District Court for Connecticut, Jon O. Newman, J., direct-

ing the Defendant Commissioner of Finance of Connecti-

eut to return to plaintiff certain property taken from him

under Connecticut statutes later declared to be unconsti-

tutional. The District Court held the Eleventh Amendment

inapplicable because of an alleged waiver by the State. The

(‘ourt of Appeals, Gurfein, J., held that consent to be sued

Of the United States Court of Appeals for the Third Circuit, sitting

hy designation.

3la

Opinion of the Court of Appeals, August 1, 1975

by the state in the federal courts could not be inferred from

a putative waiver of sovereign immunity.

Reversed.

+o

Maurice Myrvuy, Assistant Attorney General,

Hartford, Conn. (Carl R. Ajello, Attorney

General, and Paige J. Everin, Assistant

Attorney General, Hartford, Conn., of coun-

sel), for Defendant-Appellant.

MicnaeL J. CHurcix, New Haven, Conn.

(Stephen Wizner and Dennis E. Curtis,

New Haven, Conn.), for Plaintiff-A ppellee.

—————_+ 9

Giurreix, Circuit Judge:

This action was originally brought pursuant to 42 U.S.C.

§1983 and its jurisdictional counterpart, 28 U.S.C. §1343,

seeking declaratory relief holding certain Connecticut stat-

utes unconstitutional and ordering monevs taken from the

plaintiff-appellee, Robert McAuliffe, to be returned to him.

McAuliffe was hospitalized in Connecticut mental health

facilities after having been convicted of the crime of break-

ing and entering. Pursuant to two Connecticut statutes,

the defendant-appellant, Connecticut’s Commissioner of

Finance and Control, obtained two sets of funds belong-

ing to McAuliffe and applied the money toward the costs

of Me Auliffe’s treatment. The first set of these funds con-

sisted of Social Security benefits due MeAuliffe, which

defendant obtained directly from HEW after having been

duly named MeAuliffe’s “representative pavee” under 42

U.S.C". §405(5). The Commissioner’s authority to appro-

priate such payinents for appellee's hospital expenses was

derived from Conn, Gen. Stat. \17-318, quoted in the mar-

32a

Opinion of the Court of Appeals, August 1, 1975

gin.' The second sum was deposited by MeAuliffe in a

patient’s account at one of the hospitals at which he was

treated: this defendant obtained in his statutory role as

McAuliffe’s conservator.’

In an earlier opinion reported at 377 F. Supp. 896 (D.

Conn, 1974) Judge Newman had rendered a declaratory

judgment that the Connecticut statutes which authorized

defendant’s actions were unconstitutional. The District

Court in that opinion expressly reserved the «question

1 Conn. Gen. Stat. §17-318 provides:

When any person has been transferred from the State Prison, the

State Prison for Women, The Connecticut State Farm for Women

or the Connecticut Reformatory to a state hospital, such person's

hospital expense prior to the termination of his sentence shall be

charged to the state. When any person has been transferred from

a jail to a state hospital, such person's hospital expense prior to

the termination of his sentence shall he paid out of the estate of

such person, if he has any estate; if he has no estate, it shall be

paid by the state. If any person, whether transferred from the

State Prison, the State Prison for Women, The Connecticut State

Farm for Wemen, the Conneeticvt Reformatory or a jail, is com-

mitted to a state hospital after the expiration of his sentence, such

person's hospital expense shall be paid to the state in the manner

provided for payment in this chapter.

The Commissioner's designation as “representative payee" of Me-

Auliffe’s Social Security benefits was pursuant to Conn. Gen. Stat. §4-68c.

which authorized the Commissioner to act in a fiduciary capacity “under

. any instrumentality . . . of the United States... .”

: Conn. Gen. Stat. §4-68g¢ provides in pertinent part:

Whenever any person having property or an interest in property is

committed or admitted to a state institution for the mentally ill

or mentally retarded or. subsequent to such commitment or admis

sion, acquires property or an interest in property, and the property

is personal property of any kind or nature, not in excess of five

thousand dollars, or annual ineome not in excess of said amount,

ao guardian or conservator shall be appointed, and the commis

sioner of finance and contro) shall be the guardian or conservator

of such person, without court proceedings, only for the purposes

hereinafter specified. . . . Said commissioner shall hold or use such

property or funds for the support and benefit of such person in

the same manner as a duly appointed conservator, and shali main-

tain records of such property or funds and the disposition thereof.

33a

Opinion of the Court of Appeals, August 1, 1975

whether the Eleventh Amendment barred a claim for resti-

tution as an incident to the present federal action if Con-

necticut should refuse to return plaintiff's property. 377

F, Supp. at 906 n.13. A supplementary decision ordering

the Commissioner to return the money was rendered in

response to Connecticut’s continued refusal to do so in

spite of the declaratory judgment of unconstitutionality.

Judge Newman held that the Commissioner’s acts violated

fiduciary obligations imposed on him as a matter of

Connecticut law.* 386 F. Supp. 1245 (D. Conn. 1975). On

this appeal, the issue is whether there is federal juris-

diction for the order in light of the Eleventh Amendment.'

The Eleventh Amendment applies even when a state

official is the only formal defendant and the state itself

is not a named defendant. See Fitzpatrick v. Bitzer, ——

F.2d ——,, slip op. pp. 3923, 3932-33 (2 Cir., June 2, 1975).

The state in such cases can, nevertheless, be the real

party in interest because at issue is a “liability which

must be paid from public funds in the state treasury.”

Edelman v. Jordan, 415 U.S. 651, 663 (1974) (funds wrong-

fully withheld). “These funds will obviously not be paid

out of the pocket of petitioner |Carlson]” Id. at 664.

3 Judge Newman also declined to award attorney's fees, which at the

time the decision was rendered was thought to be a discretionary matter.

A cross-appeal from that determination was withdrawn by permission

of the court after the decision of the Supreme Court in Alyeska Pipeline

Service Co. v. The Wilderness Society, 43 U.8.L.W. 4561 (U.S. May 12,

1975), limiting the award of fees to adversary counsel in the absence

of settled doctrine or specific statutory authority. 42 U.S.C. $1983, the

provision underlying the present action, contains no such authorization.

4 The Eleventh Amendment provides:

The judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.

The Amendment also bars suits against a state by its own citizens.

Hans v. Louisiana, 134 U.8. 1 (1890).

34a

Opinion of the Court of Appeals, August 1, 1975

We reject MeAuliffe’s contention that this case is not

within the Eleventh Amendment because the money was

taken from him involuntarily. Equitable restitution is, in

practical effect, indistinguishable from an award of dam-

ages against the state. Edelman, supra, 415 U.S. at 668-

69. Even in those cases where the claim is that a state

has illegally taken or used plaintiff's property, not merely

wrongfully withheld it, the Eleventh Amendment applies

with full foree: and neither the means of obtaining such

funds nor the formalities of the manner in which they are

held limits the scope of the Eleventh Amendment rejec-

tion of federal judicial power. Ford Motor Company v.

Denartment of Treasury, 323 U.S. 459 (1945) (taxes un-

constitutionally collected): Knight v. State of New York,

443 F.2d 415 (2 Cir. 1971) (real property unconstitution-

ally taken); Fitepatrick v, Bitzer, supra (money held in

separate fund).

The only exception in this area allows federal courts to

require expenditure of state funds in implementing pro-

spective relief, since such relief is said to have only an

“ancillary” impact on the state treasury. See Edelman,

suvra, 415 U.S. 668; Jordan v. Fusari, 496 F.2d 646, 651

(2 Cir. 1974). In this ease no injunctive relief was sought

or granted, and the payment ordered is not ancillary to

prospective relief. The order requires the state to make

a payment in restitution of a past wrong from the state

treasurv. Whether the payment is called damages, retro-

active payment, or restitution, the effect upon the fise is

the same. We believe that Ford Votor, as reaffirmed in

Edelman. 415 U.S. at 668-69, makes this clear, and the

District Court so held.

Appellant’s essential ground of appeal is that the Dis-

triet Court erred, however, in its holding that Connecticut

has waived its Eleventh Amendment immunity from fed-

a A a

FS ay ee ie tt

35a

Opinion of the Court of Appeals, August 1, 1975

eral suit. We agree. The District Court held that both

Connecticut statutes at issue contained implied waivers of

immunity concerning disputes arising out of the Commis-

sioner’s fiduciary activities toward prisoner-patients. That

may well be true, but it does not determine the question of

federal jurisdiction. A state may waive Eleventh Amend-

ment immunity, but “a clear declaration of the state’s

intention to submit its fiscal problems to other courts than

those of its own creation must be found.” Great Northern

Ins, Co, v. Read, 322 U.S. 47, 54 (1945). See Rothstein v.

Wyman, 467 F.2d 226, 238-39 (2 Cir. 1972), cert. denied.

411 U.S. 921 (1973). No such intention can be found here.

The fact that the funds taken from the appellee were

funds to be paid to him by the Social Security Admin-

istration does not affect the Eleventh Amendment issue.

Participation in the Social Security Act falls short of a

“constructive” waiver of a participating state’s Eleventh

Amendment immunity. Edelman, supra, 415 U.S. at 673.

In any event, the assumption by the Commissioner of fidu-

ciary duties with attendant consequences was based upon

Connecticut’s own statutes. MeAuliffe did not allege that

federal statutes required these functions to be performed.

Compare Johnson v. Harder, 383 F.Supp. 174 (D.Conn.

1974), affd. per curiam, 512 F.2d 1188 (2 Cir. 1975), peti-

tion for cert, filed, 44 U.S.L.W. 3007 (U.S. June 2. 1975)

(No. 74-1552). The extent of the fiduciary obligations at

issue is thus a matter of state law.

In these circumstances, applying the test of the Supreme

Court that such waiver may be found “only where stated

‘by the most express language or by such overwhelming

implications from the text as [will] leave no room for any

other reasonable construction’,” Edel:nan, supra, 415 U.S.

at 673 (citation omitted), we hold that Connecticut has not

waived its immunity to federal suit.

36a

Opinion of the Court of Appeals, August 1, 1975

We do not necessarily disagree with the District Court

that the assumption of fiduciary obligations under the

Connecticut statutes suggests the availability of judicial

review. That would ordinarily mean state court review.”

We think the District Court erred, however, when it went

further. We have said recently (after the decision below)

that “{u]nless a ‘clear indication’ to submit to suit in fed-

eral as well as state court can be found, a federal court

cannot read the state’s consent to be sued in its own courts

as embracing federal jurisdiction.” Fitzpatrick v. Bitzer,

supra, slip op. at 3935. Considerations of comity under-

lying the Eleventh Amendment support the conclusion,

moreover, that the state court is the more appropriate

forum for judical review of the Commissioner’s actions.

If federal rights should become involved in a state court

action for restitution, the state courts will give them full

effect. Employees v. Missouri Public Health Dept., 411

U.S. 279, 298 (1973) (concurring opinion of Marshall, J.).

We express no opinion, however, on Judge Newman’s treat-

ment of the substantive issues involved.

The supplemental order is reversed without prejudice

to further proceedings in the state court.

5 We have been cited to no Connecticut decisions which would aid in

determining whether its courts have ever assumed jurisdiction to enforce

such obligations under these statutes. Compare Fitzpatrick v. Bitzer,

supra, slip op. at 3934; Knight v. State of New York, supra, 443 F.2d

at 418-22.

37a

Order of the Court of Appeals, September 5, 1975

UNITED STATES COURT OF APPEALS

Seconp Circuit

75-7125

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held

at the United States Court House, in the

City of New York, on the 5th day of Sep-

tember, one thousand nine hundred and sev-

enty-five.

Present:

Hon. J. Epwarp LuMmsBarp,

Hox. Jonn J. Grpsons,

How. Murray I. Gurren,

Circuit Judges.

Rosert A. McAULIFrE,

Plaintiff-Appellee,

v.

Apvotr G. Cartson, Commissioner of Finance and Control

of the State of Connecticut,

Defendant-Appellant.

A petition for a rehearing having been filed herein by

counsel for the appellee

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

/s/ A. Daxtet Fvsaro

A. Daniel Fusaro, Clerk.