by Owen Vanderkolk
Law Student Feature – Case Focus
Over the summer of 2021, while headlines related to the overreach and misconduct of Britney Spears’s conservatorship captivated the public, Massachusetts’ highest court was in the process of deciding a case that provides conservators with a greater level of protection from personal liability. In Hornibrook v. Richard, 488 Mass. 74 (2021), the Supreme Judicial Court (SJC) decided that court-appointed conservators act as “quasi-judicial officers” and are therefore entitled to quasi-judicial immunity from personal liability for conduct carried out under express authorization or approval by a probate court. The decision is part of a judicial trend toward expanding immunity to individuals acting in the service of the court and marks conservators as protected from personal liability alongside court clerks, guardians ad litem, and personal representatives. The opinion follows similar rulings from other jurisdictions but may result in unintended protection for actions that are contrary to the interests of the individuals whom conservators are appointed to protect.
Hornibrook Facts and Procedural History
In Hornibrook, a probate court appointed a conservator for an elderly woman suffering from dementia and living with her alcoholic son. The conservatee, Kathleen Hornibrook, moved into a nursing care facility and her other son was appointed guardian. The alcoholic son remained living in the home and refused to leave. The guardian son formulated a plan to rent out the top two floors of the triple-decker home to pay for in-home care. To accomplish this plan, however, the alcoholic son would need to be evicted. The conservator received the probate court’s permission to evict the alcoholic son and attempted to do so in December of 2014 without success. There is no record the conservator attempted another eviction for over a year.
In early 2016, the conservator received notice that the home was being foreclosed on due to a home equity mortgage on the home with a provision requiring the mortgagor’s occupancy. The conservator finally acted, defending against the foreclosure action and evicting the alcoholic son. In May of 2016, the conservator informed the guardian of her intention to sell the home in order to pay for the substantial nursing care debt accumulated by the conservatee. After a dispute between the conservator and the guardian about the selling price, the probate court issued the license to sell in August 2016.
In January 2018, the guardian son filed a complaint against the conservator in probate court. The complaint alleged breach of fiduciary duty, legal malpractice, conversion, and fraud. Following a transfer to the Superior Court, the conservator filed a motion to dismiss on quasi-judicial immunity grounds, which the court granted. The son moved for relief from judgment, but the court denied the motion without prejudice. In 2019, the conservatee died, and her guardian son was appointed personal representative of her estate. He filed a renewed motion for relief from judgment that included an opposition to the motion to dismiss and sought to amend the complaint by substituting parties. The court granted relief from judgment and allowed the substitution of parties. On the motion to dismiss, the court again dismissed the counts of legal malpractice and fraud but allowed the breach of fiduciary duty and conversion counts to remain, stating that although the allegations were “paper thin” they were substantial enough to warrant a trial. The conservator appealed the decision, and the SJC, on its own motion, transferred the case for direct appellate review.
Hornibrook Reasoning and Holding
To determine whether an individual performs a quasi-judicial function, and is therefore entitled to quasi-judicial immunity, the SJC applies a “functional analysis.” Hornibrook, 488 Mass. at 79. This analysis focuses on the “nature of the duties performed, and whether they are closely associated with the” functions of the court. Id. at 79 (quotation omitted). If the duties being performed by the individual are “integrally related to the judicial process,” then those individuals must be free to carry-out their work without the threat of lawsuit. Id. at 80. Following this reasoning, the SJC noted that courts appoint conservators to manage the estate of a protected person, which requires managing properties and paying bills for work done. The SJC held that, when fulfilling this estate management function on behalf of the probate court, the conservator is entitled to absolute immunity. Id. at 79.
The SJC noted that the duties being performed by the conservator must be expressly authorized by a court to be entitled to immunity from liability. Id. So, while a court-appointed psychiatrist is immune from liability for assessments performed at the request of the court, see LaLonde v. Eissner, 405 Mass. 207 (1989), a court clerk who assaults a co-worker while at work is not immune from personal liability, see Commonwealth v. O’Neil, 418 Mass. 760 (1994).
“Quasi-Judicial Immunity” as a Judicial Trend
Although the issue of whether conservators are entitled to judicial immunity remains unsettled law in many states, federal courts have been more willing to grant the privilege to conservators. See, e.g., Holmes v. Silver Cross Hosp., 340 F. Supp. 125 (N.D. Ill. 1972); Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989). The Hornibrook decision charts a similar course to one taken by the Connecticut Supreme Court in 2012. In Gross v. Rell, the court held that conservators who had obtained express authorization from the probate court were acting as agents of the probate court rather than on behalf of the conservatee and were thus entitled to judicial immunity in the performance of the authorized conduct. 304 Conn. 234, 251-52 (2012).
The Hornibrook decision exemplifies a broader judicial trend of expanding judicial immunity to individuals serving a function of the court. When the SJC held that a court-appointed psychiatrist was entitled to judicial immunity, the SJC adopted the same reasoning for why judges are entitled to immunity, finding them “exempt from liability to an action for any judgement or decision rendered in the exercise of jurisdiction vested in him [or her] by law.” LaLonde, 405 Mass. at 210. Similar reasoning was used when Massachusetts courts extended quasi-judicial immunity to court clerks, Temple v. Marlborough Division of the District Court Dep’t, 395 Mass. 117 (1985), guardians ad litem, Sarkisian v. Benjamin, 62 Mass. App. Ct. 741, 745 (2005), and personal representatives, Farber v. Sherman, 2018 Mass. App. Div. 46 (Dist. Ct. Mar. 15, 2018).
Where Does Quasi-Judicial Immunity End?
Hornibrook leaves some questions unanswered. The most pressing is where immunity ends for court-appointed conservators. The SJC’s only guidance is that personal liability exists for acts “not authorized by the probate court.” Hornibrook, 488 Mass. at 81. This standard begs the key question: how much of a delay in action is allowed by the probate court before the court’s authorization is no longer a safe harbor from liability for the conservator? Considering the facts from Hornibrook, how long could the conservator have waited before taking action to evict the troublesome brother, while the nursing care facility continued to collect fees for the conservatee’s care and the house depreciated in value? The decision isn’t clear about when a conservator’s inaction can be considered a fiduciary breach that nullifies the judicial immunity conferred by the court for actions taken to sell the house. Hypothetically, a conservator could delay any attempts to create a sustainable in-home care plan until the costs from the care provided by the nursing facility had accumulated to an amount that necessitated selling the home. At that point, the conservator could choose a buyer willing to reciprocate, set an artificially low price, and only adjust the price if the conservatee’s guardian filed an objection with the probate court, a process not every guardian may be savvy or attentive enough to carry out. The conservator would be protected from personal liability for any injury sustained by the conservatee’s estate because every action was done with the approval of the probate court.
Risks of Over-Extending Judicial Immunity
In Hornibrook, the SJC followed a clear judicial trend of expanding judicial immunity to individuals acting as an “arm of the court.” The public policy rationale is clear: those tasked with carrying-out the objectives of the court must be unafraid to make principled decisions that could otherwise expose them to personal liability from a litigant dissatisfied with the outcome. Judges cannot maintain objectivity when a sword of Damocles in the form of personal liability hangs over their head. So, too, conservators acting under the authority of the probate court.
However, expanding the umbrella of judicial immunity to protect more categories of individuals serving the court is not without risk. Exploitation by profiteers within the system is a danger. When conservators are charged with protecting valuable assets of vulnerable conservatees and pursuant to an appointment by an over-worked and understaffed probate court, circumstances arise that are ripe for abuse. For guardians, the injury to the estate may not be discovered until after it is too late to object. Questions of whether the conservator was acting in bad faith could be explored at trial, but if a probate court has approved the action at the center of the controversy, the investigative process afforded by a trial will be denied. This creates an environment where backroom dealing, hidden from the eyes of the court, could lead to negotiations that benefit unscrupulous buyers and illegitimate conservators, and injure the estates conservators are appointed to protect.
Owen Vanderkolk is a third-year law student at New England Law | Boston and has a strong interest in property law, tax law, and estate planning. He is an associate member of the New England Law Review, president of his school’s Real Estate Law Society, and moved to Boston from Seattle to attend law school.