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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Trapp v. State, Office of Public Advocacy (8/30/2002) sp-5616

Trapp v. State, Office of Public Advocacy (8/30/2002) sp-5616

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
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     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


SUSAN TRAPP,                  )
                              )    Supreme Court No. S-10043
               Appellant,          )
                              )    Superior Court No.
     v.                       )    3AN-00-6545 CI
PUBLIC ADVOCACY,              )
               Appellee.      )    [No. 5616 - August 30, 2002]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Ethan  G.  Schutt,  Dorsey   &
          Whitney   LLP,   Anchorage,  for   Appellant.
          Venable   Vermont,  Jr.,  Assistant  Attorney
          General,   Anchorage,   Bruce   M.   Botelho,
          Attorney General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.

           The question in this case is whether a conservator  is

shielded by absolute quasi-judicial immunity from claims asserted

by  her ward.  We answer "no" because the conservatorship statute

permits such claims.

Facts and Proceedings

           In 1995 the superior court found Susan Trapp partially

incapacitated and appointed the Office of Public Advocacy as  her

conservator.   In  2000 Trapp filed suit, pro  se,  against  OPA,

claiming  that  its  employees had intentionally  or  negligently

withheld  funds which were meant for Trapp's shelter,  food,  and

clothing,  thereby  placing  her life  in  jeopardy;  told  other

agencies not to help Trapp or provide her with services,  thereby

violating  its  duty of confidentiality; and  defamed  her.   She

sought both injunctive relief and monetary damages.1

          OPA moved to dismiss the suit, asserting absolute quasi-

judicial immunity with respect to all claims.  Trapp opposed  the

motion,  arguing  that under the applicable statute  conservators

are  liable  to  their wards for breaches  of  duty.   The  court

granted  OPA's motion, ruling that the statute does  not  provide

for claims by wards against conservators.

Arguments on Appeal

           On  appeal  Trapp argues that absolute  quasi-judicial

immunity should not be afforded to conservators for the following


      (1)   a  conservator's  duties do  not  resemble  protected

judicial functions;

      (2)   a  conservator  does  not perform  duties  intimately

related to the judicial process because

          (a)  a conservator's duties are not performed on behalf

of a court,

          (b)  a conservator is not a neutral third party,

          (c)  a conservator does not provide the court with pre-

decision assistance, and

           (d)   a  conservator acts outside the supervision  and

direction of the court;

     (3)  quasi-judicial immunity leaves wards without protection

against  abuses by conservators and such abuses are best deterred

and prevented by an action for damages;

      (4)   absolute quasi-judicial immunity conflicts  with  the

conservatorship statute; and

      (5)   even  if there is quasi-judicial immunity  generally,

such  immunity  should  not  extend to intentional  or  malicious


OPA  disputes each of these points.  We address only  the  fourth

point  and conclude that it is well taken.  This conclusion moots

Trapp's other arguments.

The  Conservatorship  Statute  Precludes  Absolute  Immunity  for


           Judges  are shielded by absolute immunity  from  civil

actions for damages arising out of their judicial acts.  Judicial

immunity "serves the twin purposes of protecting the finality  of

judgments  and  preserving judicial independence  `by  insulating

judges   from   vexatious  actions  prosecuted   by   disgruntled

litigants.'  "2   Judicial immunity is "for the  benefit  of  the

public, whose interest it is that the judges should be at liberty

to exercise their functions with independence and without fear of


           Judicial immunity is an absolute form of immunity;  it

applies  "no  matter  how erroneous the act may  have  been,  how

injurious its consequences, how informal the proceeding,  or  how

malicious  the motive.  Only judicial actions taken in the  clear

absence  of  all  jurisdiction will deprive a judge  of  absolute

immunity."4  Absolute judicial immunity is extended not  only  to

judges  but  to  others who perform duties that are  sufficiently

related  to  the judicial process.  The clearest case for  quasi-

judicial immunity is presented in instances where some aspect  of

the  court's adjudicative responsibility is delegated to  another

official such as a master or referee.5  And in Alaska,6  as  well

as  in  almost  all other jurisdictions, neutral  court-appointed

experts  are also shielded by absolute quasi-judicial  immunity.7

But  with respect to the question as to whether a conservator  or

other  person  appointed  by a court  to  manage  the  person  or

property  of a ward or the property of an estate enjoys  absolute

immunity, there is no similar unanimity.

           Cases  applying  a rule of absolute immunity  to  such

officials include Cok v. Cosentino;8 New Alaska Development Corp.

v.  Guetschow;9 Mullis v. United States Bankruptcy Court for  the

District  of  Nevada;10 and Mosher v. Saalfeld.11  Cases  denying

absolute  immunity  to  such officials include  Frey  v.  Blanket

Corp.;12 Collins ex rel. Collins v. Tabet;13 and Edwards v. Pena.14

           We have no occasion here to choose between these lines

of  authority,  or  attempt to reconcile them,  because  absolute

immunity  for  conservators is, in our  view,  precluded  by  the

conservatorship  statute, chapter 26 of title 13  of  the  Alaska

Statutes.   The  most  relevant section  is  AS  13.26.305  which


                (a)   Unless otherwise provided in  the
          contract,  a  conservator is not individually
          liable on a contract properly entered into in
          a   fiduciary  capacity  in  the  course   of
          administration  of  the  estate  unless   the
          conservator    fails    to     reveal     the
          representative  capacity  and  identify   the
          estate in the contract.
                (b)   The  conservator is  individually
          liable for obligations arising from ownership
          or  control of property of the estate or  for
          torts    committed   in   the    course    of
          administration   of  the   estate   only   if
          personally at fault.
                (c)   Claims based on contracts entered
          into   by   a   conservator  in  a  fiduciary
          capacity,   on   obligations   arising   from
          ownership  or  control of the estate,  or  on
          torts    committed   in   the    course    of
          administration of the estate may be  asserted
          against the estate by proceeding against  the
          conservator   in   the  fiduciary   capacity,
          whether    or   not   the   conservator    is
          individually liable for them.
                (d)   Any question of liability between
          the  estate  and the conservator individually
          may   be  determined  in  a  proceeding   for
          accounting, surcharge, or indemnification, or
          other appropriate proceeding or action.
Subsection  (b)  explicitly makes conservators liable  for  torts

committed  in  the  course  of  administration  where  they   are

personally  at fault, and subsection (d) permits claims  asserted

by   the  estate  against  the  conservator  individually  to  be

determined either in the conservatorship proceeding or in another

appropriate action.

           The trial court ruled that subsection .305(b) read  in

the  context of the other subsections of section .305  "addresses

the claims of third parties as against the estate or conservator,

and  does not provide a cause of action for the protected  person

against  the conservator."  We do not so interpret section  .305.

While  subsections (a) and (c) concern claims  of  third  parties

against the estate or the conservator, subsection (b) is  not  so

limited.    And   subsection  (d)  explicitly  contemplates   the

adjudication  of  claims  by the estate against  the  conservator


           As  to  subsection  (d),  OPA  argues  that  liability

questions  between the conservator and the ward are meant  to  be

confined to the conservatorship proceedings and that in light  of

the  court's  power  in such proceedings "there  is  no  need  to

provide  for  tort lawsuits by the protected person  against  her

conservator  .  .  .  ."   OPA's  assertion  that  the  court  in

conservatorship proceedings can fairly adjudicate a claim by  the

ward against her conservator is doubtless true, for the court can

apply  discovery  and  other rules of  civil  procedure  in  such

proceedings  in order to ensure a fair adjudication.15   But  the

relevant  point  for  the present case  is  not  in  which  forum

liability  claims  against a conservator may be adjudicated,  but

whether such claims can be maintained at all.  Subsection .305(d)

plainly allows such claims.

           Other  sections  of the conservatorship  statute  also

suggest  that  wards  may  pursue  claims  against  conservators.

Alaska  Statute  13.26.245 provides that "[i]n  the  exercise  of

powers,  a  conservator shall act as fiduciary and shall  observe

the standards of care applicable to trustees under AS 13.36.225 -

13.36.290."  The phrase "standard of care" is generally  used  to

define the circumstances in which a party is liable in tort,  and

fiduciaries  are generally liable to those whom they are  charged

with protecting when they breach their fiduciary duties.16

           Alaska  Statute  13.26.215  authorizes  the  court  to

require  a  conservator  to  furnish  a  bond  "conditioned  upon

faithful discharge of all duties of the trust according to law."17

Subsection  .220(a)(1) provides that the conservator  is  jointly

and  severally  liable with the sureties on the bond;  subsection

(2) of section .220(a) provides that the bond may be enforced  in

the  court  which  appointed the conservator "in  any  proceeding

pertaining  to  the  fiduciary duties of  the  conservator";  and

subsection (3) provides that "any interested person" can initiate

a  proceeding against the surety.  The statutory bond requirement

thus  contemplates that claims for money damages may  be  brought

for  breaches of fiduciary duties against the conservator and the

surety  by "any interested person."  The statute does not suggest

that  the  latter  category does not include the  ward.   To  the

contrary, the ward is typically the person most directly affected

by a breach of fiduciary duty.

           Based  then on the statute governing conservatorships,

we conclude that conservators are not shielded by absolute quasi-

judicial  immunity.  For this reason the judgment of the superior

court  is  REVERSED  and this case must be REMANDED  for  further

proceedings consistent with this opinion.

1Her full complaint reads as follows:

1.                  [OPA] did intentionally with hold funds which were
          meant  for  shelter, food and clothing and intern placed  my
          life in jeopardy.
2.                   That  [OPA]  had  a  responsibility  as  a  court
          assigned  conservator  to  make  funds  provided  by  social
          security  available  to  me for food clothing  and  shelter.
          This  was  not done frequently sometimes by intent and  some
          times  simply  through neglect and a cold  disregard  to  my
3.                   That [OPA] did tell other agencies not to help me
          or  provide  services and illegally broke  Federal  laws  of
4.                   That [OPA] was intentionally verbally abuse to me
          and many other of their clients with a callous disregard  to
          their   disability  situations.   Frequently  causing   deep
          humiliation and embarrassment in front of groups  of  people
          in the front office.
5.                   That [OPA] had record of how seriously ill I was,
          disregarded  that  .  . . and frequently  caused  me  to  be
          homeless  by  telling others how "hard I was to handle"  and
          setting  up  a self fulfilling prophecy.  Being homeless  in
          Anchorage  is very life threatening but [OPA] would  say  it
          was no big deal "sleep in the streets[.]"
6.                   I want to take this to court where I can prove my
          alligations  through records of [OPA] and  through  witness.
          Even  through  people who work at office of public  advocacy
          and  are  willing to state what kind of behavior  they  have
          seen displayed towards clients.
7.                   I  want to this to go to civil litigation as soon
          as  possible:  to  stop  the  abuse  and  to  have  monetary
          compensation  for the years of degradation  by  a  group  of
          people  who  were  supposed to be in a helping  role.   This
          system of abuse almost cost me my life . . . and I can prove
          this in court.
2Lythgoe  v. Guinn, 884 P.2d 1085, 1086-87 (Alaska 1994) (quoting
Forrester v. White, 484 U.S. 219, 225 (1988)).

                If  judges  were personally liable  for
          erroneous  decisions, the resulting avalanche
          of   suits,   most  of  them  frivolous   but
          vexatious,  would provide powerful incentives
          for   judges  to  avoid  rendering  decisions
          likely  to  provoke such suits. The resulting
          timidity  would be hard to detect or control,
          and   it   would   manifestly  detract   from
          independent and impartial adjudication.
Id. at 1087 (quoting Forrester, 484 U.S. at 226-27).

3Id. (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).
4Cok  v.  Cosentino,  876 F.2d 1, 2 (1st  Cir.  1989)  (citations
omitted).   Absolute judicial immunity is to be  contrasted  with
qualified  public official immunity, under which public officials
are  protected from liability for their discretionary acts within
the  scope of their authority so long as their acts are  in  good
faith and are neither malicious nor corrupt.  Pauley v. Anchorage
Sch.  Dist., 31 P.3d 1284, 1286 (Alaska 2001).  Whether some form
of qualified public official immunity applies to OPA conservators
is  not  at issue in this appeal.  We express no opinion on  this
5See  Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d  1452  (9th
Cir.  1993)  (per curiam) (special master); Smallwood  v.  United
States, 358 F. Supp. 398 (E.D. Mo. 1973) (referee in bankruptcy);
see  also  Ashbrook  v. Hoffman, 617 F.2d  474  (7th  Cir.  1980)
(commissioner in property partition proceeding).
6Lythgoe, 884 P.2d at 1090.
7See cases cited in Lythgoe, 884 P.2d at 1087 n.1.
8876 F.2d 1 (1st Cir. 1989) (conservator).
9869 F.2d 1298 (9th Cir. 1989) (court-appointed receiver).
10828 F.2d 1385 (9th Cir. 1987) (bankruptcy trustee).
11589  F.2d  438  (9th  Cir. 1978) (per  curiam)  (trust  officer
appointed to conserve the estate of an incompetent).
12582 N.W.2d 336 (Neb. 1998) (guardian for incapacitated person).
13806  P.2d 40 (N.M. 1991) (guardian ad litem in role as advocate
for  infant).  Here  the court compared the guardian  ad  litem's
liability  to  that  of a conservator under  the  applicable  New
Mexico statute, accepting as a given conservator liability:

          Fiduciaries,  of  course,  are   subject   to
          liability  to their wards for harm  resulting
          from ordinary negligence in the discharge  of
          their fiduciary duties; if anything, they are
          charged  with a higher standard of care  than
          are  persons who do not owe fiduciary duties.
          See  Pino  v.  Budwine, 568 P.2d 586  (1977);
          Estate  of Guerra v. New Mexico Human  Servs.
          Dep't,   633   P.2d  716  (N.M.  App.   1981)
          (guardian  accepting assets of ward  held  to
          stringent and high standards of conduct).
Id. at 49 (emphasis in original).

1438  S.W.3d 191 (Tex. App. 2001) (guardian appointed to conserve
the estate of incapacitated person).
15See Alaska R. Prob. P. 1(e).
16See Collins, 806 P.2d at 49.
17AS 13.26.215(a).