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Illinois Supreme Court Grants Quasi-Judicial Immunity to Guardian Ad Litem

On June 20, 2019, the Illinois Supreme Court decided an important case, Nichols v. Fahrenkamp, 2019 IL 123990 in which it held that a guardian ad litem (a lawyer appointed by a court to represent the interests of a minor child in a divorce case) is immune from suit for conduct related to his appointment.

There have been prior decisions granting immunity where the guardian was sued by one or more parents. This case is different because it expands the immunity significantly.

Nichols essentially alleged that Fahrenkamp did not prevent Nichols’ mother from misusing money that belonged to Nichols. The court relied upon a review of the Illinois Probate Act and the Illinois Dissolution of Marriage Act as well as cases from other states:

¶ 14 The only question on appeal is whether quasi-judicial immunity protects David Fahrenkamp from civil liability for his conduct within the scope of his appointment as Alexis Nichols’s guardian ad litem. Quasi-judicial immunity originates in the common-law principle that judges are immune from liability for the acts they perform as part of their judicial duties. See, e.g., Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (explaining that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872)“); In re Mason, 33 Ill. 2d 53, 57 (1965); In re McGarry, 380 Ill. 359, 365-66 (1942); People ex rel. Chicago Bar Ass’n v. Standidge, 333 Ill. 361, 367 (1928).

¶ 15 This common-law immunity extends beyond the judges themselves to protect other actors in the judicial process. Rehberg v. Paulk, 566 U.S. 356, 366-67 (2012); Briscoe v. LaHue, 460 U.S. 325, 335 (1983) (finding that trial witnesses have immunity for their testimony because “the common law provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral parts of the judicial process”); Butz v. Economou,438 U.S. 478, 513 (1978) (holding that federal administrative law judges have absolute immunity). In Cleavinger v. Saxner, 474 U.S. 193 (1985), the United States Supreme Court applied the “functional test” to determine whether an actor’s role is sufficiently connected to the judicial process to merit this absolute immunity. That test considers

“(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.” Id. at 202 (citing Butz, 438 U.S. at 512).

¶ 16 The “functional test” requires the court to look past the title attached to an office or position and look to that position holder’s role. Fahrenkamp did not either receive or forfeit immunity simply by acquiring the title “guardian ad litem,” especially because American authorities have not always used this phrase consistently. See, e.g., Fox v. Willis, 890 A.2d 726, 732 (Md. 2006) (observing that “there is little uniformity in the case law and statutes of other states with regard to the functions, duties, and immunities of `guardians ad litem‘”). Rather than looking at the title “guardian ad litem” to determine whether Fahrenkamp has quasi-judicial immunity, the court must consider what function he performed. Here, however, the parties do not agree what that function was…..

¶ 42 Although no Illinois court has specifically considered whether this position merits quasi-judicial immunity, other state supreme courts have granted immunity to actors who fulfill a comparable function. For example, in Kimbrell v. Kimbrell, the Supreme Court of New Mexico applied quasi-judicial immunity to a guardian ad litem who served as a “`best interests attorney'” and made recommendations to the court on the ward’s best interests. 2014-NMSC-027, ¶ 10, 331 P.3d 915; see Fleming, 483 S.E.2d at 756; McKay v. Owens, 937 P.2d 1222, 1231 (Idaho 1997); Barr v. Day, 879 P.2d 912 (Wash. 1994) (en banc). But accord Collins v. Tabet, 806 P.2d 40, 47-48 (N.M. 1991) (concluding that the guardian ad litem would be entitled to quasi-judicial immunity if his role was limited to helping the court assess the reasonableness of a medical malpractice settlement but that additional fact-finding was necessary to determine whether that particular guardian ad litem acted as an advocate); see also Briscoe, 460 U.S. at 335-36 (finding police officers immune from liability for their testimony as witnesses).

¶ 43 Federal appellate courts have also found that guardians ad litem are immune when their function is to report to the court on a child’s best interests. In Cooney,the United States Court of Appeals for the Seventh Circuit held that child representatives under Illinois’s Marriage Act have absolute immunity. 583 F.3d 967. In the course of its discussion of child representatives, the Seventh Circuit accepted that guardians ad litem also have quasi-judicial immunity. Id. at 970.

¶ 44 Partially in reliance on Cooney, the Tenth Circuit observed the “widespread recognition” that quasi-judicial immunity protects guardians ad litem. Dahl v. Charles F. Dahl, M.D., P.C. Defined Benefit Pension Trust, 744 F.3d 623, 630 (10th Cir. 2014). This “widespread recognition” did not involve simply the title “guardian ad litem” but also the guardian ad litem‘s role as witness and reporter. Cooney, 583 F.3d 967; Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989) (finding immunity because a “GAL typically gathers information, prepares a report and makes a recommendation to the court regarding a custody disposition”); Gardner v. Parson,874 F.2d 131, 146 (3d Cir. 1989) (explaining that although guardians ad litem are not immune when they function as advocates, a “guardian ad litem would be absolutely immune in exercising functions such as testifying in court, prosecuting custody or neglect petitions, and making reports and recommendations to the court in which the guardian acts as an actual functionary or arm of the court, not only in status or denomination but in reality”); see also Hughes v. Long, 242 F.3d 121, 127 (3d Cir. 2001); Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir. 1987),abrogated on other grounds by Burns v. Reed, 500 U.S. 478 (1991).

Comment: this is an important decision of the Illinois Supreme Court. It protects those who serve as guardians ad litem. I question the decision because immunity means that even gross negligence by a guardian ad litem will be shielded. Furthermore, plaintiff sustained real economic injuries – whether it was the fault of the guardian ad litem is unclear. Remember her the guardian ad litem has a professional duty to the minor child – not just to the court.

In sum, I question the result. The holding (immunity) invites bad conduct because there is no legal remedy for those who suffer from it.

Ed Clinton, Jr.

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