City of Birmingham v. Monk Brief and Argument of Horace C. Wilkinson

    dmtrt nf tlj£ Itufrfc States
O ctober T er m , 1975 

No. 75-933

I n t h e

R obert A . M cA ulieee ,

v.

Petitioner,

A dolf G. C arlson , Commissioner of Finance 
and Control of the State of Connecticut.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

J ack  Greenberg 
E ric S ch napper  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

M ichael  C h u rg in  
S teph en  W izn er  
D en n is  E . C urtis 

127 Wall Street 
New Haven, Connecticut 06520

Counsel for Petitioner



I N D E X

PAGE

Opinions Below .......... „.................. ...... ............... ...... ......  1

Jurisdiction ..........    2

Questions Presented ................. ............ ............................  2

Constitutional Provision Involved .......................    2

Statement of the Case ...................... .......... ...... .............  2

Reasons for Granting the Writ ....................................... 4

Conclusion .............      12

A ppendix—

Opinion of the District Court, May 30, 1974 .................  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 op A uthorities

Cases:

Chicago, etc., R.R. Co. v. Chicago, 166 U.S. 226 (1897)
5,11

Edelman v. Jordan, 415 U.S. 651 (1974) ........ ..............  11
Ex parte Tyler, 149 U.S. 164 (1893) ............................... 7
Ex parte Young, 209 U.S. 123 (1908) ..........................  6,8



11

PAGE

Fitzpatrick v, Bitzer, 519 F.2d 559 (2d Cir. 1975) ____ 11-
Ford Motor Co. v. Treasury Department, 323 U.S. 459 

(1945) ......................................... - ....................... - ...........  10

Georgia R.R., etc., Co. v. Redwine, 342 U.S. 299 (1952) 8
Great Northern Life Insurance Co. v. Read, 322 U.S.

47 (1944) .... ............... ............... .. ......................... .......... 7

Hopkins v. Clemson Agricultural College, 221 U.S. 636
(1911) .............. ...... ........... .............. ........... ................... , 8

Knight v. State of New York, 443 F.2d 415 (2d Cir. 
1971) ..... ............... ....................... ....... ................... .........  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) ........ ...... ......... ....................................... ..... .. ......  10

Penn oyer v. McConnaughy, 140 U.S. 1 (1891) — ........  7
Poindexter v. Greenhow, 114 U.S. 270 (1885) ........... 6,9,10

Scott v. Donald, 165 U.S. 58 (1897) ........... ...................  7
Smith v. Reeves, 178 U.S. 436 (1900) --------- --------------  10
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) 5

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

Constitutional Provisions:

Eleventh Amendment to the U.S. Constitution ......... 2, 4, 6,
7, 9,11

Fourteenth Amendment to the U.S. Constitution..... ..2, 5, 9



Ill

Statutes and Regulations :  p a g e

28 U.S.C. §1254(1) ........ ........ ................... .........................  2

Conn. Gen. Stat. §4-68c....... ........................... ....................  3

Conn. Gen. Stat. §4-68g ..

Conn. Gen. Stat. §17-318

20 C.F.R. §404.1603

3

3

3



Ix  the

(tart of tf|? Imtefr B M xb
October T erm , 1975 

No. 75-933

R obert A. M cA u lieee ,

y .
Petitioner,

A dole G. C arlsox , 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. 20a-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 IT.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,1 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.E. §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 law2 
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 hank 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.
2 Conn. Gen. Stat. §4-68g.



4

the district court held that the state statute requiring 
plaintiff, but not other patients, to pay for treatment,3 
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 f o r  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 Ms “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-14a. 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., R.R. Co. v. Chicago. 166 U.S. 226 (1897).4

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.5 6 Nor does 
the defendant deny that, had plaintiff known in advance of 
the planned expropriation, he could have obtained an in­

4 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.

6 No appeal w7as taken from the district court’s decision to this
effect.



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 to 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 
Circuit 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.6 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.7 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

6 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 
been unlawfully appropriated by state officials. See also 
United States v. Peters, 5 Crunch. (9 TJ.S.) 115 (1809) (ac­
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.8

The principle of Tindal v. 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

8 “ [W] here a suit is brought again'st 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, to 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.” Ex Parte 
Tyler, 149 U.S. 164, 190 (1893). (Emphasis added)

“ [Wjhere 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, to 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 unconstitu­
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).



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.8. at 698, n. 20.9

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.8. 731 (1947), upheld an action to compel 
the United States Maritime Commission to return certain 
stock.10 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

9 See also Georgia B.B., etc. Go. v. Bedwine, 342 U.S. 299, 304, 
n. 14 (1952); Hopkins v. Clemson Agricultural College, 221 U.S. 
636, 643 (1911) ; E x Parte Young, 209 U.S. 123, 152 (1908).

10 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.



9

in his individual capacity and title thereto remains at all 
time with the private owner.11 Thus in the instant case 
there is no need to spend any funds that are now or ever 
were part of the public fisc, 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.12 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.13 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-

11 “ 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 Craneh.) 115, 141 (1809).

12 “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 stains 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).

13 “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. & 0. B. 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

meriting public policies of the highest importance.14 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.15

In United States v. Lee, this Court asked:f
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? I f  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 vindicates her integrity as he maintains his own right.” 
Poindexter 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 case is unlike those in which we have held that 
a suit would lie by one person against another person to recover 
possession of specific property, although the latter claimed he 
was in possession as an officer of the state and not otherwise. In 
such a case, the settled 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 Go. v. Treasury Department, 323 U.S. 459 (1945), which 
relied upon and reaffirmed the decision in Smith as to tax refunds, 
in no way questioned the distinction drawn in Smith or the vital­
ity of Tindal.



11

thority of the President of the United States, is forbidden 
as well to individuals claiming to have acted pursuant to 
a concededly 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., B.B. Co. v. Chicago, 166 U.S. 226, 236 (1897).

The Eleventh Amendment was intended only to protect 
“ the general 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. Bitser, 519 F.2d 559 (2nd Cir. 1975). Certiorari was 
granted in Fitzpatrick on December 15, 1975. 44 U.S. LAV 
3354. 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.



12

CONCLUSION

For the above reasons, a Writ of Certiorari should issue 
to review the judgment and opinion of the Second Circuit.

Respectfully submitted,

J ack  Gbeenbebg 
E bic S chist appeb 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

M ichael  C hu bgin  
S teph en  W izeteb 
D e n n is  E . C ubtis 

127 Wall Street 
New Haven, Connecticut 06520

Counsel for Petitioner



A P P E N D I X



UNITED STATES DISTRICT COURT

D. C onnecticut  

May 30, 1974 

Civ. No. 15687

Opinion of the District Court, May 30, 1974

R obert A . M cA ulieee ,

v.

A dole Gr. Carlson , 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.

M em orandum  oe D ecision  on P l a in tiff ’ s M otion for 
S u m m ary  J udgm ent

N e w m a n , 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

The background facts leading up to the current contro­
versy are not in dispute. On August 26, 1971, plaintiff 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 Middle- 
town.1 2 Plaintiff served 218 days of his sentence at the 
Security Treatment Center and was released on April 26, 
1972. Pursuant to Conn.Gen.Stat. § 17-318,3 the Commis­
sioner of Finance and Control billed plaintiff for $1,098.07,

1 Two statute's, Conn.Gen.Stat. §§ 17-194a and 17-246, authorize 
the Commissioner 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 
he paid out of the estate of such person, if he has any estate; 
if he has no estate, it shall he paid hy 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 expen'se 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,

Opinion of the District Court, May 30, 1974



3a

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 and Control had been appointed his con­
servator, pursuant to Conn.Gen.Stat. § 4-68g,* 8 and had used

Opinion of the District Court, May 30, 1974

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).

8 Conn.Gen.Stat. § 4-68g 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 com­
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

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 TLS.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.

Opinion of the District Court, May 30, 1974,

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, beneficial organiza­
tion, executor, administrator, trustee, fiduciary agent, 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 commissioner of finance 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
ganization, 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

I.

Constitutionality of Conn.Gen.8tat. § 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 § 17-318 are premised upon some 
compelling state interest, the State must prove that they



6a

“rationally [further] some legitimate, articulated state pur­
pose and therefore [do] not constitute an invidious discrim­
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.Sd 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 isarne 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 public hu­
mane institutions will not be permitted to receive state 
aid at the taxpayers’ expense if they are capable of reim­
bursing the public for their care.4 Although statutes p:ro-

Opinion of the District Court, May 30, 1974

4 The development of this common law policy and it's impact 
upon legislation was traced in State v. Ikey’s Estate, 84 Yt. 363, 
366-367, 79 A. 850, 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



7a

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 maintenance.5 
More recent cases have upheld prisoners’ liability for 
mental health treatment received while serving their sen­
tences,6 or while in custody at state hospitals because they 
are unable to stand trial by reason of insanity.7

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

Opinion of the District Court, May 30, 1974

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 
in'sane 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).

s See People v. Hawkins, 157 N.Y. 1, 51 N.E. 257; 10 Mi'sc. 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).

6 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. Olezniczak, 302 
Mich. 336, 4 N.W.2d 679 (1942). '

7 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 Yt. 363, 79 A. 850 (1911).



8a

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 o f the inmate or 
the other inmates will be served by such action.” Conn. 
Gen.Stat. § 18-86. Pursuant to § 18-86, a misdemeanant or 
a felon, initially incarcerated at a Community Correctional 
Center under a sentence of one year or less,8 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.9

8 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 fix a term of one year 
or less. (Emphasis added).

9 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

Opinion of the District Court, May 30, 1974



9a,

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 not be transferred to CCI, 
Somers, but may serve the remaining portion of their in­
determinate sentences in a Community Correctional Center.

Opinion of the District Court, May 30, 1974

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 Circuit 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 years. 
There is no statutory minimum sentence for persons sentenced 
under this provision, and it is not uncommon for prisoner's 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 incarceration. 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

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 
year 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. 
However, if an inmate is still in custody, 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. Id. 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, including his readily- 
available accrued wages, from being used for his state hos­
pital costs and to charge inmates at Community Correc­
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 Correc­

Opinion of the District Court, May 30, 1974



11a

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 he 
charged for hospital expenses, it is arguable that female 
misdemeanants incarcerated at CCI, Niantic, are incarcer­
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 plaintiff’s point that 
female misdemeanants at CCI, Niantic, serving the same 
sentence as a male misdemeanant at a Community Correc­
tional Center are in fact not charged for their state hos­
pital costs under § 17-318.

It is difficult to perceive 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, 43% of all women over the age of 16 were
in the labor force, and 18% of all women worked full

Opinion of the District Court, May 30, 1974



12a

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 Niantic are “ in jail” 
within the meaning of Conn.G-en.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,10 * 30

10 See 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).

Opinion of the District Court, May 30, 1974



13a

recent decisions uneqnivocably 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.11 It may well be that in some instances the costs

11 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 care may be 
transferred . . .  to any state hospital having facilities for such

Opinion of the District Court, May 30, 1974



14a

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 
care, 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 be 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.

Opinion of the District Court, May 30, 1974

care. . . . ” Since § 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 incurred by 
prisoners transferred to state mental health facilities.



15a

Opinion of the District Court, May 30, 1974 

II.

Constitutionality of Conn.Gen.8tat. § 4-68g

Corm.Gen.Slat. § 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.12 
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. § 4-68g. 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 opportunity to be heard 
on the issue of his competency.

12 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 alleged incompetent may at­
tend 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.



16a

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); Vlandis

Opinion of the District Court, May 30, 1974



17a

v. Kline, 412 IT.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 
551 (1972); Bell v. Bnrson, 402 U.S. 535, 91 S.Ct. 1586, 
29 L.Ed.2d 90 (1971).

The statute also conflicts with the Equal 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 incapable of 
managing their affairs. Since probate court hearings at 
state mental institutions are not infrequent, a full-scale

Opinion of the District Court, Map 30, 1974



18a

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 § 4-68g 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.Ed.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) (concur­
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 issue of 
his competency.

Since Conn.Gen.Stat. §§ 17-318 and 4-68g violate the
Fourteenth Amendment, plaintiff’s motion for summary 
judgment is granted.13 Judgment will enter declaring

Opinion of the District Court, May 30, 1974

13 Plaintiff has requested this Court to order the defendant to 
return with interest from the date of seizure the property taken



19a

§ 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. § 1-1, and declaring § 4-68g uncon­
stitutional in its entirety.

Opinion of the District Court, May 30, 1974

from him pursuant to Conn.Gen.Stat. §§ 17-318 and 4-68g. No 
order appears neces'sary 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 occur, plaintiff can apply for a 
supplemental judgment. A t 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 defen'se is inapplicable to what is 
essentially a claim for restitution.



20a

UNITED STATES DISTRICT COURT 

D. C onnecticut  

Jan. 16, 1975 

Civ. No. 15687

Opinion of the District Court, January 16, 1975

R obert A . M cA ulieee , 

v.

A dolf G. Carlson , Commissioner of Finance and Control 
of the State of Connecticut.

Michael J. Churgin, Stephen Wizner, New Haven, Conn., 
for plaintiff.

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

R u lin g  on P la in t if f ’s M otion for S u pplem en ta l  R elief

N e w m a n , 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, §§ 17-318 
and 4-68g, 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



21a

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 § 17-318 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. § 4-680/  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(j), 20 C.F.E. §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 payee, plain­
tiff has alleged that this statute confers such authority, defendant 
has not disputed the contention, and no contrary authority has 
been found.

Opinion of the District Court, January 16, 1975



22a

suant to the Secretary’s decision to remove the Commis­
sioner as representative payee. Plaintiff had deposited his 
disability benefits in a patient’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. Mc­
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 II.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

Opinion of the District Court, January 16, 1975



23a

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 fisc, 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 Co. 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 Eleventh 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. I f 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, cf. 
Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973); Rothstein

Opinion of the District Court, January 16, 1975



24a

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 protections.2 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.3 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

2 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.

3 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 such a private 
fiduciary, the Eleventh Amendment would clearly have barred 
plaintiff’s claims, even if the obligation to pay wa's later declared 
to be without legal foundation or if there was a defect in the 
procedure for designating the fiduciary.

Opinion of the District Court, January 16, 1975



25a

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 . . . . ” (Emphasis 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. § 4-68g 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 . . . . ”  4 
(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. Each 
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

4 Neither statute involved here raises the question whether a con­
sent to suit permits such suits to he 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. 305 (E.D.Va. 1974), with. Flores 
v. Norton & Eamsey Lines, Inc., 352 F.Supp. 150 (W.D.Tex. 1972).

Opinion of the District Court, January 16, 1975



26a

the usual legal rights of persons in plaintiff’s circum­
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 § 4-68c, 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 Connecticut 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. §§ 4-68c and 4-68g.

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),

Opinion of the District Court, January 16, 1975



27a

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.Htfd.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 circumstances, 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

Opinion of the District Court, January 16, 1975



28a

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 care. 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.R. § 404.1606. See also McDoagald 
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, Inc. 
v. 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 
be characterized as that kind of “ unreasonable, obdurate 
obstinacy” that justifies imposing attorneys’ fees as a pen­

Opinion of the District Court, January 16, 1975



29a

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 attorneys’ 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 
not 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 may re­
cover his costs.

Opinion of the District Court, January 16, 1975



30a

Opinion of the Court of Appeals, August 1, 1975

UNITED STATES COURT OF APPEALS

F or the  Second C ircuit

No. 951— September Term, 1974.

(Argued June 20, 1975 Decided August 1, 1975.)

Docket No. 75-7125

R obert A . M cA u lieee ,

Plaintiff-Appellee, 
v.

A dolf G. Carlson , Commissioner of Finance 
and Control of the State of Connecticut,

Defendant-Appellant.

B e f o r e  :
L ombard , G ibbons* and Gu rfein ,

Circuit Judges.

Appeal from a supplemental order of the United States 
District Court for Connecticut, Jon 0. Newman, J .. direct­
ing the Defendant Commissioner of Finance of Connecti­
cut 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 
Court of Appeals, Gurfein, J., held that consent to be sued

* Of the United States Court of Appeals for the Third Circuit, sitting 
by designation.



31a

by the state in the federal courts could not be inferred from 
a putative waiver of sovereign immunity.

Reversed.

Opinion of the Court of Appeals. August 1, 1975

M aurice M ystjjST, 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.

M ichael  J. C h u r g in , New Haven, Conn. 
(Stephen Wizner and Dennis E, Curtis, 
New Haven, Conn.), for Plaintiff-Appellee.

Gurff.in , Circuit Judge:

This action was originally brought pursuant to 42 U.S.C. 
§1983 and its jurisdictional counterpart, 28 T.S.C. §1343, 
seeking declaratory relief holding certain Connecticut stat­
utes unconstitutional and ordering moneys 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 McAuliffe’s treatment. The first set of these funds con­
sisted of Social Security benefits due McAuliffe, which 
defendant obtained directly from HEW after having been 
duly named McAuliffe’s “ representative payee” under 42 
IJ.S.C. §405(j). The Commissioner’s authority to appro­
priate such payments for appellee’s hospital expenses was 
derived from Conn. Gen. Rtat. §17-318, quoted in the mar­



32a

gin.1 The second sum was deposited by McAuliffe 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.2

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

Opinion of the Court of Appeals, August 1, 1975

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 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. I f  any person, whether transferred from the 
State Prison, the State Prison for Women, The Connecticut State 
Farm for Women, the Connecticut 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 Mc- 
Auliffe’s Social Security benefits was pursuant to Conn. Gen. Stat. §4-68e, 
which authorized the Commissioner to act in a fiduciary capacity "under 
. . .  any instrumentality . . .  of the United States . ”

2 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 income not in excess of said amount, 
no guardian or conservator shall be appointed, and the commis­
sioner of finance and control 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 shall main­
tain records of such property or funds and the disposition thereof.



33a

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.3 386 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.4

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 -2 d ------ , 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.

Opinion of the Court of Appeals, August 1, 1975

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 AlyesTca Pipeline 
Service Co. v. The Wilderness Society, 43 U.S.L.W. 4561 (TJ.S. May 12, 
1975), limiting the award of fees to adversary counsel in the absence 
of settled doctrine or specific statutory authority. 42 TI.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. 
Mans v. Louisiana, 134 U.S. 1 (1890).



34a

We reject MoAuliffe’s contention that this ease 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 force; 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. 
Department 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); Fitzpatrick 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, 
supra, 415 U.S. 668; Jordan v. Fusari, 496 F.2d 646, 651 
(2 Cir. 1974). In this case 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 
treasury. Whether the payment is called damages, retro­
active payment, or restitution, the effect upon the fisc is 
the same. We believe that Ford Motor, 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
trict Court erred, however, in its holding that Connecticut 
has waived its Eleventh Amendment immunity from fed-

Opinion of the Court of Appeals, August 1, 1975



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 Rotlistein 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. E del man, 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. McAuliffe 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’,” Edelman, supra, 415 U.S. 
at 673 (citation omitted), we hold that Connecticut has not 
waived its immunity to federal suit.



36a

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.5 6 
We think the District Court erred, however, when it went 
further. We have said recently (after the decision below) 
that “ [ujnless 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.

Opinion of the Court of Appeals, August 1, 1975

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 

S econd C ircuit 

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.

3 r e s e n t :
Hon. J. E dward L umbard ,
H on . J ohn  J. G ibbons,
H on . M urray I . G u r fe in ,

Circuit Judges.

R obert A . M cA u liffe ,

Plaintiff-Appellee,
v.

A dolf G. C arlson , 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. D an iel  F usaro

A. Daniel Fusaro, Clerk.



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