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J. Lythgoe v. J. Guinn (11/25/94), 884 P 2d 1085
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
JACQUELIN LYTHGOE, f/k/a )
JACQUELIN WELLMAN, )
) Supreme Court No. S-5696
Appellant, )
) Superior Court No.
) 3AN-92-9124 CIVIL
v. )
) O P I N I O N
JANET GUINN, Ph.D., )
) [No. 4150 - November 25, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: J. Jeffrey Mayhook, Law
Offices of J. Jeffrey Mayhook, Anchorage, for
Appellant. Timothy A. McKeever and Matthew
D. Regan, Faulkner, Banfield, Doogan &
Holmes, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MOORE, Chief Justice.
INTRODUCTION
In the course of a child custody dispute between
Jacqueline Lythgoe, f/k/a Jacqueline Wellman, and Paul Wellman,
the superior court appointed Dr. Janet Guinn to act as an
independent custody investigator. Subsequent to the preparation
of Guinn's evaluation, which was not used by the court, Lythgoe
filed suit against Guinn, alleging negligent and intentional
torts in the course of her investigation and the preparation of
her report. Guinn moved to dismiss, asserting quasi-judicial
immunity, a doctrine heretofore unrecognized by this court. The
superior court agreed with Guinn and dismissed Lythgoe's claims.
We affirm.
FACTS AND PROCEEDINGS
In early 1992 the superior court Judge Andrews
appointed Dr. Janet Guinn as an independent custody investigator
in a divorce and custody proceeding involving Jacqueline Lythgoe,
her ex-husband Paul Wellman, and their six-year-old son, Cooper.
Under the terms of this appointment, the parties were each
required to pay half of the costs and fees incurred by the
investigator. The court further ordered the parties to fully
cooperate with Dr. Guinn's investigation. Dr. Guinn's report
recommended that Wellman be given sole custody of the child.
Lythgoe filed a motion requesting that a separate
evaluation be performed, which was granted. Judge Andrews also
ordered an in camera review of files maintained by the State
Division of Occupational Licensing pertaining to an investigation
of Dr. Guinn "to determine if there are any relevant documents
. . . relating to Guinn's qualifications or the weight to give
her report or testimony." Following this inspection, the court
ordered that "all reports and testimony produced by Dr. Guinn be
stricken from the record." The court further directed that none
of the documents produced by Dr. Guinn be provided to the new
custody evaluator.
In October 1992 Lythgoe filed suit against Dr. Guinn,
alleging that she performed the custody investigation
negligently, willfully and wantonly, that she intentionally or
negligently misrepresented statements of third parties in her
report, that she failed to conform to the minimum professional
standards for licensed psychologists in the State of Alaska, that
she violated statutes governing such professionals, and that she
breached her fiduciary duties to Lythgoe. In an amended
complaint, Lythgoe further alleged that Dr. Guinn acted as an
advocate for Wellman, thereby forfeiting any immunity she might
have had.
Dr. Guinn responded to the suit by filing a Rule
12(b)(6) motion to dismiss, alleging quasi-judicial and witness
immunity. She also moved to stay discovery and any investigation
by the Health Care Expert Advisory Panel convened to review the
matter, pending the court's ruling on the motion to dismiss. The
superior court, Judge Shortell, granted the stay and ultimately
granted Dr. Guinn's motion to dismiss, finding that her actions
fell within the scope of quasi-judicial immunity. Lythgoe now
appeals.
DISCUSSION
I. Is Dr. Guinn, a court-appointed custody investigator,
protected under the doctrine of absolute quasi-judicial
immunity?
A. Absolute Judicial Immunity
It is well-settled that judges are accorded absolute
immunity from liability for damages for acts performed in the
exercise of their judicial functions. See Forrester v. White,
484 U.S. 219, 225 (1988); Pierson v. Ray, 386 U.S. 547, 553-54
(1967); Howard v. Drapkin, 271 Cal. Rptr. 893, 896 (Cal. App.
1990). This absolute immunity protects even the judge who acts
maliciously or corruptly. Pierson, 386 U.S. at 555; Howard, 271
Cal. Rptr. at 897; Seibel v. Kemble, 631 P.2d 173, 177 (Hawaii
1981).
The United States Supreme Court has noted that absolute
judicial immunity serves the twin purposes of protecting the
finality of judgments and preserving judicial independence "by
insulating judges from vexatious actions prosecuted by
disgruntled litigants." Forrester, 484 U.S. at 225 (citing
Bradley v. Fisher, 80 U.S. 335, 348 (U.S. 1871)).
If judges were personally liable for
erroneous decisions, the resulting avalanche
of suits, most of them frivolous but
vexatious, would provide powerful incentives
for judges to avoid rendering decisions
likely to provoke such suits. The resulting
timidity would be hard to detect or control,
and it would manifestly detract from
independent and impartial adjudication.
Id. at 226-27 (citations omitted).
The Court has further noted that the broad scope of the
immunity is not intended to protect the malicious or corrupt
wrongdoer, but instead is "for the benefit of the public, whose
interest it is that the judges should be at liberty to exercise
their functions with independence and without fear of
consequences." Pierson, 386 U.S. at 554 (citation omitted); see
also J. Randolph Block, Stump v. Sparkman and the History of
Judicial Immunity, 1980 Duke L.J. 879, 922 (1980) ("Judicial
immunity exists not to protect judges but to protect
litigants.").
In Denardo v. Michalski, 811 P.2d 315 (Alaska 1991),
this court recognized the existence of absolute judicial immunity
in Alaska. However, we have not yet addressed or recognized the
existence of quasi-judicial immunity, under which persons, other
than judges, who perform judicial functions are granted immunity
coextensive with that accorded judges.
B. Quasi-Judicial Immunity Caselaw
In the instant case, the superior court dismissed
Lythgoe's suit, finding that her claims fell within the
recognized scope of absolute quasi-judicial immunity. Indeed,
with virtual uniformity, courts have granted absolute immunity to
persons who perform functions analogous to those performed by Dr.
Guinn in the present case.1
For example, in S.T.J. v. P.M., 556 So. 2d 244 (La.
App. 1990), a Louisiana appellate court held that psychologists
appointed by the court to aid in resolving custody disputes were
absolutely immune from liability for the performance of their
delegated functions. In reaching this conclusion, the court
stated that "appointed psychologists are non-judicial persons
fulfilling quasi-judicial functions and are classified as
officers of the court with functions intimately related to the
judicial process. Hence, . . . they are entitled to absolute
immunity protecting them from having to litigate the manner in
which they perform those functions." Id. at 247.
An Arizona court reached the same result in Lavit v.
Superior Court, 839 P.2d 1141 (Ariz. App. 1992). In Lavit, the
parties to a marriage dissolution sought to employ a psychologist
to conduct a child custody evaluation. The court adopted the
parties' stipulation asking that Dr. Lavit be named to fill the
position. Id. at 1142-43. The court eventually incorporated Dr.
Lavit's recommendations into its dissolution decree. Id. at
1143. Subsequently, however, the father sued Dr. Lavit, alleging
that his evaluation was improperly biased in favor of the child's
mother. Id.
The appeals court granted summary judgment in favor of
Dr. Lavit, holding that "[j]udicial immunity protects a non-
judicial officer performing a function pursuant to a court
directive related to the judicial process." Id. at 1144. In
reaching this conclusion, the court stated that "[t]he question
becomes not how the psychologist was first chosen but whether his
activity is an integral part of the judicial process so that to
deny immunity would disserve the broader public interest that non-
judicial officers act without fear of liability." Id.; see also
LaLonde v. Eissner, 539 N.E.2d 538, 541 (Mass. 1989) ("common law
immunity protects persons appointed by a court to conduct medical
or psychiatric evaluation and render an opinion or to provide
other expert assistance because of their integral relation to the
judicial process").
The superior court relied principally on Howard v.
Drapkin, 271 Cal. Rptr. 893 (Cal. App. 1990), in finding that
Lythgoe's claims were precluded by quasi-judicial immunity. As
in the cases discussed above, the Howard court held that a
psychologist engaged by the court to evaluate the parties to a
custody dispute is entitled to the protection of absolute quasi-
judicial immunity. Id. at 894.
In Howard, the parties to a child custody dispute
agreed to hire a licensed psychologist to conduct an independent
custody evaluation. As in Lavit, the parties' stipulation
regarding the appointment was approved by the trial court and
converted into an order. Id. Following the preparation of the
evaluation report, the mother sued the psychologist, alleging
professional negligence, negligent and intentional infliction of
emotional distress, and fraud. Id. at 894-95. The trial court
dismissed the claims. Id. at 896.
The court of appeals affirmed the dismissal, noting
that quasi-judicial immunity applied
to people connected with the judicial
process . . . such as (1) mediators,
guardians ad litem, therapists, receivers,
bankruptcy trustees and other persons
appointed by the courts for their expertise
and (2) persons whose work product comes into
the judicial process to be used by the court
even though they were not court-appointed,
such as social workers and probation
department employees.
Id. at 899.
The court further noted that the psychologist performed
a function "intimately related to the judicial process"and which
involved "impartiality and neutrality." Id. at 901-902. Thus,
the court concluded that "there should be entitlement to the same
immunity given others who function as neutrals in an attempt to
resolve disputes,"such as judges, commissioners and referees.
Id. at 902. Based on this analysis, the court held that
quasi-judicial immunity is properly
extended to these neutral third-parties for
their conduct in performing dispute
resolution services which are connected to
the judicial process and involve either (1)
the making of binding decisions, (2) the
making of findings or recommendations to the
court or (3) the arbitration, mediation,
conciliation, evaluation or other similar
resolution of pending disputes.
Id. at 903.
In the present case, Dr. Guinn was appointed by the
superior court to provide professional advice and expertise
regarding the custody of Lythgoe's child. Lythgoe's allegations
stem directly from Dr. Guinn's role in the custody proceeding.
In acting pursuant to her court-appointment, Dr. Guinn served as
an "arm of the court"and performed a function "integral to the
judicial process." See Seibel, 631 P.2d at 179. Thus, we
conclude that the trial court did not err in granting Dr. Guinn
absolute quasi-judicial immunity.
C. Public Policy Considerations
The superior court's determination that Dr. Guinn was
protected by quasi-judicial immunity is also well-supported by
policy considerations. In Lavit, the court identified several
grounds supporting absolute judicial immunity:
(1) the need to save judicial time in
defending suits; (2) the need for finality in
the resolution of disputes; (3) to prevent
deterring competent persons from taking
office; (4) to prevent the threat of lawsuit
from discouraging independent action; and (5)
the existence of adequate procedural
safeguards such as change of venue and
appellate review.
Lavit, 839 P.2d at 1144 (citing Grimm v. Arizona Bd. of Pardons &
Paroles, 564 P.2d 1227, 1231-31 (Ariz. 1977)); see also Seibel,
631 P.2d at 178 (noting "the unfairness of requiring an opinion
and the exercise of judgment to which is given special deference
and then subjecting that person to liability based on the opinion
of another"). The Lavit court further noted that "[t]hese policy
reasons apply equally to court-appointed officials such as
psychologists and psychiatrists who assist the court in making
decisions." Lavit, 839 P.2d at 1144; see also Seibel, 631 P.2d
at 178 ("The reasons underlying judicial immunity . . . apply
equally to court-appointed officials.").
In extending absolute judicial immunity to quasi-
judicial officers such as court-appointed psychotherapists, most
courts have relied in particular on the fear that "[e]xposure to
liability could deter their acceptance of court appointments or
color their recommendations." Lavit, 839 P.2d at 1144. For
example, in Seibel, the court noted that "failure to extend
absolute immunity to [court-appointed psychiatrists] would
produce a chilling effect upon acceptances of future court
appointments." Seibel, 631 P.2d at 180; see also, e.g., LaLonde,
539 N.E.2d at 541 ("[p]sychologists and other experts would be
reluctant to accept court appointments if they thereby opened
themselves to liability for their actions in this official
capacity") (citation omitted).
Similarly, courts have consistently recognized that the
threat of civil liability may affect the manner in which such
court-appointed experts perform their jobs. In Antoine v. Byers
& Anderson, Inc., the United States Supreme Court stated that
"[w]hen judicial immunity is extended to officials other than
judges, it is because their judgments are 'functional[ly]
comparab[le]' to those of judges--that is, because they, too,
'exercise a discretionary judgment' as part of their function."
___ U.S. ___, 113 S. Ct. 2167, 2171 (1993) (emphasis added)
(citation omitted). Certainly, it is undeniable that a
psychotherapist appointed by the court to conduct a child custody
investigation exercises discretionary judgment in rendering an
evaluation.2 See Williams v. Rappeport, 699 F. Supp. 501, 507
(D. Md. 1988) ("Professionals appointed by a judge to assist . .
. in evaluating individuals involved in a lawsuit before the
court do perform discretionary functions within the judicial
process."), aff'd sub nom. Williams v. Dvoskin, 879 F.2d 863 (4th
Cir.), cert. denied, 493 U.S. 894 (1989).
The sine qua non of the exercise of such discretion is
the freedom to act in an objective and independent manner.
Recognizing this concern, the Williams court stated that "[t]he
proper approach is to consider the precise function at issue, and
to determine whether the officer is likely to be unduly inhibited
in the performance of that function by the threat of liability
for tortious conduct." Id. (quoting McCray v. Maryland, 456 F.2d
1, 3-4 (4th Cir. 1972)).
This danger is clearly present in the context of the
court-appointed professional. As the court noted in LaLonde,
"human nature indicates that court-appointed experts, faced with
the threat of personal liability, will be less likely to offer
the disinterested objective opinion that the court seeks."
LaLonde, 539 N.E.2d at 541; see also Howard, 271 Cal. Rptr. at
897 ("to submit all officials . . . to the burden of a trial and
to the inevitable danger of its outcome, would dampen the ardor
of all but the most resolute, or the most irresponsible, in the
unflinching discharge of their duties") (citation omitted);
Williams, 699 F. Supp. at 507 (quasi-judicial officers, "[l]ike
judges, . . . require the insulation of absolute immunity to
assure the courageous exercise of their discretionary duties").
Thus, the extension of absolute judicial immunity to quasi-
judicial officers such as court-appointed psychotherapists is a
proper recognition of the "possibility that a professional who is
delegated judicial duties to aid the court will become a
'lightning rod for harassing litigation.'" Lavit, 839 P.2d at
1144 (quoting Kermit Constr. Corp. v. Banco Credito Y Ahorro
Ponceno, 547 F.2d 1, 3 (1st Cir. 1976)).3
D. Lythgoe's Arguments
Lythgoe offers several arguments, each of which we find
unpersuasive, in support of her assertion that Dr. Guinn should
not have been accorded absolute immunity. First, she argues that
Guinn was entitled to only qualified, not absolute immunity.4 In
advancing this argument, she relies exclusively on this court's
decision in Aspen Exploration Corp. v. Sheffield, 739 P.2d 150
(Alaska 1987). In Aspen, a case involving a suit against the
governor, the court adopted a multi-factor case-specific test to
determine whether a public official is protected by absolute or
qualified immunity. Id. at 159-60.
In the present case, the superior court dismissed
Lythgoe's argument, concluding that official immunity "serves
entirely different ends"than does judicial immunity. Indeed, in
Grimm, the Arizona Supreme Court stated that "[i]t is clear that
the policy reasons for official immunity are much weaker than for
judicial immunity." 564 P.2d at 1232. In particular, the court
noted that the concerns regarding the finality of disputes and
the saving of judicial time are far less compelling outside of
the judicial context. Id. The court also noted that procedural
safeguards, while present in the judicial setting, are "often
totally lacking"in the administrative context. Id. Based on
these findings, the Arizona court held that "absolute immunity
for public officials in their discretionary functions acting in
other than true judicial proceedings is . . . improper." Id.
(emphasis added).
The Supreme Court has noted an additional rationale
underlying the distinction between absolute judicial immunity and
qualified executive or public official immunity. In Forrester v.
White, 484 U.S. 219 (1988), the Court recognized that
the nature of the adjudicative function
requires a judge frequently to disappoint
some of the most intense and ungovernable
desires that people can have. . . . [T]his is
the principal characteristic that
adjudication has in common with legislation
and with criminal prosecution, which are the
two other areas in which absolute immunity
has most generously been provided.
Id. at 226. The concerns expressed in Forrester certainly apply
in the emotional and often inflammatory divorce and child custody
context. Thus, the superior court was correct in concluding that
Aspen's analysis of public official immunity is inapposite to the
present case.
Lythgoe also argues that granting Dr. Guinn absolute
immunity violates public policy in that it fails to provide her
with an adequate remedy or safeguard from Dr. Guinn's alleged
misconduct. She asserts that "the Superior Court's expansion of
absolute immunity here gives Guinn . . . greater license to
perform her work in whatever manner she deems appropriate--
without regard to professional standards and without fear of
being held accountable for her tortious misconduct."
On the contrary, several courts have noted that
adequate remedies and safeguards, other than civil liability,
exist to hold court-appointed experts accountable for their
actions. For example, in LaLonde, the court stated that "[w]hile
we are cognizant of the need to prevent negligently performed
evaluations, our judicial system has inherent safeguards that
minimize the risk of decisions based on inaccurate, misleading,
or negligently conducted evaluations." LaLonde, 539 N.E.2d at
542. In particular, the court noted that, where the expert
testifies or the expert's report is presented to the court, the
complaining party has the opportunity to examine the expert and
bring to the judge's attention any alleged deficiencies in the
evaluation. In addition, the court further noted that the
complaining party is "free to seek appellate review or . . .
request a modification of the [trial court's] order." Id.; see
also Casenote, Absolute Immunity for the Negligent Expert
Witness: Bruce v. Byrne-Stevens, 26 Willamette L. Rev. 1051, 1076
(1990) (noting remedies of appellate review and opportunity for
cross-examination).
Similarly, in Seibel, the court noted additional
safeguards against tortious conduct by a court-appointed expert:
Although appellees would not be civilly
liable for the consequences of their alleged
negligent acts, the court is able to insure
that its agents will be accountable for their
conduct and actions. The court, in its
discretion, has the authority to impose or
recommend that numerous sanctions be imposed
for negligent conduct. Some of the sanctions
that could be imposed include appointing
another doctor to serve on the panel,
prohibiting the doctor from further service
to the court and reporting that doctor's
behavior to the medical boards for further
action.
Seibel, 631 P.2d at 177 n.8.
In the present case, Lythgoe successfully availed
herself of such alternative remedies. She deposed Dr. Guinn and
presented her objections to the trial court, which issued an
order that Dr. Guinn's report be stricken from the record. She
additionally would have had the opportunity to seek appellate
review had the trial court denied her motion to exclude Dr.
Guinn's report. These alternative mechanisms for review are
"largely free of the harmful side-effects inevitably associated
with exposing judges [and quasi-judicial officers] to personal
liability." Forrester, 484 U.S. at 227. Thus, Lythgoe's public
policy argument is unpersuasive.
Lythgoe also argues that Dr. Guinn abandoned her
neutral role and assumed the role of an advocate for Wellman,
thereby waiving any immunity to which Guinn was entitled. In
advancing this argument, Lythgoe relies on two cases, both of
which are inapposite to the instant case. In Collins ex rel.
Collins v. Tabet, 806 P.2d 40 (N.M. 1991), and Barr v. Day, 854
P.2d 642 (Wash. App. 1993), the courts held that where a guardian
ad litem acts as a private advocate for his or her ward, as
opposed to a functionary of the court, he or she is not immune
from suit brought by the ward for malpractice. Collins, 806 P.2d
at 44; Barr, 854 P.2d at 649-50.
In reaching this conclusion, the Collins court stated:
Where the guardian ad litem is acting as
an advocate for his client's position--
representing the pecuniary interest of the
child instead of looking into the fairness of
the settlement . . . on behalf of the court--
the basic reason for conferring quasi-
judicial immunity on the guardian does not
exist. In that situation, he or she
functions in the same way as does any other
attorney for a client--advancing the
interests of the client, not discharging (or
assisting in the discharge of) the duties of
the court.
Collins, 806 P.2d at 48. The court further held, however, that
where the guardian acts as an "arm of the court," absolute
immunity is proper, noting that the "objectivity of a guardian's
investigation and recommendation might be compromised by the
threat of liability; and . . . this could impair the judge's own
ability to perform his or her judicial duties." Id. at 47-48.
In the present case, all of Lythgoe's allegations arise
from Dr. Guinn's role as a court-appointed custody investigator.
Unlike the guardian ad litem/ward relationship, it cannot be
argued that a court-appointed expert acts "in the same way as
does [an] attorney for a client." Id. at 48; see Howard, 271
Cal. Rptr. at 902 (psychologist mediating custody dispute "is not
an advocate for either parent").
To accept Lythgoe's argument would render quasi-
judicial immunity meaningless and defeat the purposes underlying
the doctrine, as it would open the door to allegations of waiver
by advocacy in every case where the quasi-judicial officer makes
a recommendation contrary to a party's position. In this case,
the superior court found that Lythgoe's proposed amendment to her
complaint, which added the allegation of advocacy, was "based on
the same factual occurrences set forth in her original
complaint." We agree with this conclusion and find her waiver
argument unpersuasive.5
Finally, Lythgoe argues that absolute immunity is
improper in the present case, because the superior court did not
rely on Dr. Guinn's report in resolving the custody issue.
Lythgoe relies on Lavit, 839 P.2d 1141, in advancing this
argument. In Lavit, the court held that a psychologist was
absolutely immune from liability in an action arising from a
custody evaluation. Id. at 1146. In so holding, the court
stated that the psychologist's "activities are protected because
(1) at least to some extent, his evaluations and recommendations
aided the trial court in determining child custody, and (2) his
services were performed pursuant to a court order." Id.
(Emphasis added).
Lavit appears to stand alone in suggesting that actual
assistance to the trial court is a prerequisite to the granting
of quasi-judicial immunity. For example, both Howard and Seibel
expressly note that absolute quasi-judicial immunity is
appropriate where the findings and opinions of the quasi-judicial
officer are not binding and where the final determination rests
solely with the court. Howard, 271 Cal. Rptr. at 902-03; Seibel,
631 P.2d at 180.
In any event, to the extent Lavit may be interpreted to
require actual reliance in the present case, we find that it is
bad law. As discussed above, the central policy consideration
supporting the doctrine of absolute quasi-judicial immunity for
court-appointed experts is the fear that "[e]xposure to liability
could deter their acceptance of court appointments or color their
recommendations." Lavit, 839 P.2d at 1144. The rule suggested
by Lythgoe would do injury to this concern.
Undoubtedly, potential civil liability would discourage
qualified professionals from accepting court appointments, even
if such liability arose only where the court disregarded the
experts' recommendations. In addition, exercise of the experts'
independent judgment would be impaired, as they would have an
incentive to make recommendations that are more likely to be
adopted by the court. Also, the Seibel court recognized an
additional danger inherent in limiting immunity to those
situations of actual reliance: "a fear of bringing down
litigation on the [court-appointee] might color a court's
judgment in some cases, and if the court ignores the danger of
harassing suits, tensions between [appointee] and judge seem
inevitable." Seibel, 631 P.2d at 180 (quoting Kermit Constr.
Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir.
1976)). Finally, such a rule would place a court in the awkward
position of determining the factors which guided a coequal
court's decision. In light of these concerns, we find
unpersuasive Lythgoe's argument that actual reliance be required.6
CONCLUSION
Based on the above analysis, we affirm the superior
court's dismissal of Lythgoe's complaint. Caselaw and policy
considerations clearly support the granting of absolute quasi-
judicial immunity to Dr. Guinn, a psychologist/child custody
investigator appointed by the court to assist in its custody
determination.7
AFFIRMED.
_______________________________
1 See, e.g., Grimm v. Arizona Bd. of Pardons & Paroles,
564 P.2d 1227, 1233 (Ariz. 1977) (participants in legal
proceedings enjoy absolute judicial immunity); Seibel v. Kemble,
631 P.2d 173, 177 (Hawaii 1981) (psychiatrists appointed by court
to render opinion regarding defendant's mental condition accorded
absolute judicial immunity; such persons act as "arm of the
court" and perform "functions essential to judicial process");
Delbridge v. Shaeffer, 569 A.2d 872, 880-82 (N.J. Super. Ct. Law
Div. 1989) (psychologist, adoption resource center, and child
placement review board accorded absolute quasi-judicial immunity
in case arising out of child custody evaluation); Bader v. State,
716 P.2d 925, 927 (Wash. App. 1986) (same as Seibel); see also
Moses v. Parwatikar, 813 F.2d 891, 892 (8th Cir.) (same as
Seibel), cert. denied, 484 U.S. 832 (1987); Myers v. Morris, 810
F.2d 1437, 1466-67 (8th Cir.) (court-appointed guardians ad
litem, psychological therapists, and social workers granted
absolute quasi-judicial immunity for damage claims arising from
performance of delegated functions in child sexual abuse
investigation), cert. denied, 484 U.S. 828 (1987); Kurzawa v.
Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (in neglect
proceeding, guardian ad litem and psychotherapist who examined
child protected by absolute immunity); Williams v. Rappeport, 699
F. Supp. 501, 507 (D. Md. 1988) (court-appointed doctors entitled
to same immunity extended to judges), aff'd sub nom. Williams v.
Dvoskin, 879 F.2d 863 (4th Cir.), cert. denied, 493 U.S. 894
(1989); Doe v. Hennepin County, 623 F. Supp. 982, 986-87 (D.
Minn. 1985) (court-appointed therapists entitled to absolute
immunity for acts within scope of appointment); Wagner v.
Genessee County Bd. of Comm'rs, 607 F. Supp. 1158, 1162-65 (E.D.
Mich. 1985) ("friend of court,"whose duties included making
recommendations as to custody in divorce cases, accorded absolute
quasi-judicial immunity); cf. Briscoe v. LaHue, 460 U.S. 325, 335
(1983) ("the common law provided absolute immunity from
subsequent damages liability for all persons--governmental or
otherwise--who were integral parts of the judicial process").
2 Compare Levine v. Wiss & Co., 478 A.2d 397 (N.J. 1984),
the only case cited by Lythgoe in which a court-appointed expert
was denied absolute immunity. In Levine, the court appointed an
accountant to render a binding valuation of an asset in dispute.
One of the parties sued the accountant, alleging that the
accountant was negligent in valuing the asset. Id. at 398. The
court refused to grant the accountant quasi-judicial immunity on
the grounds that he "did not resolve any conflicting claims or
determine legal rights and obligations. [He] did not exercise
the discretionary judgment that is the hallmark of [judicial
officers'] function." Id. at 402 (emphasis added).
3 The policy concerns supporting quasi-judicial immunity
are, if anything, more pronounced in the context of child custody
proceedings. In Lavit, the court recognized that "[c]hild
custody determinations require an insight into family dynamics,
the psycho-social needs of the child, and the abilities of each
parent." 839 P.2d at 1146. Such insight generally falls outside
of a judge's expertise. Likewise, time constraints prevent a
judge from personally being able to investigate adequately all of
the factors relevant to the complex child custody determination.
As the superior court noted in the present case, a psychologist
appointed to assist the court in making a custody finding "is
essentially an extension of the judge, and performs the same
investigatory process the judge would if he or she had the time
and education to do the job on his or her own." In addition, the
state's compelling interest in protecting and preserving the well-
being of children requires that such experts "be able to perform
their jobs 'without the worry of intimidation and harassment from
dissatisfied parents.'" Howard, 271 Cal. Rptr. at 900 (quoting
Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984)); see
also In re D.D.S., 869 P.2d 160, 163 (Alaska 1994) (discussing
State's compelling interest in protecting children).
4 Under the doctrine of qualified immunity, a party is
shielded from liability only for actions done in good faith and
that are not malicious or corrupt. Aspen Exploration Corp. v.
Sheffield, 739 P.2d 150, 158 (Alaska 1987). One commentator, in
discussing qualified immunity for judicial officers, states:
The chief drawback to this proposal is
that most aggrieved litigants would readily
allege that a judge's conduct had been
malicious, or had met any other requisite
standard, and the truth of such allegations
could not be determined without a trial; the
damage to the policies supporting immunity
would be inflicted by the fact of a trial, no
matter what the verdict.
J. Randolph Block, Stump v. Sparkman and the History of Judicial
Immunity, 1980 Duke L.J. 879, 922 (1980).
5 In Denardo, we held that a judge is only liable "if his
actions were 1) not 'judicial,' or 2) outside of his subject
matter jurisdiction." 811 P.2d at 316. As noted above,
Lythgoe's allegations are clearly based on actions, judicial in
nature, performed by Dr. Guinn within the scope of her court-
appointment as a custody investigator. Thus, we need not address
the existence or breadth of quasi-judicial immunity in the
situation where the court-appointed expert has wholly abandoned
his or her role as a functionary of the court. For example, we
express no opinion as to whether civil liability will lie where
an expert accepts a bribe or otherwise engages in criminal
conduct.
6 Lythgoe also repeatedly notes throughout her brief that
the parties each paid one half of Dr. Guinn's expenses. This is
irrelevant to the quasi-judicial immunity issue, as courts have
uniformly held that the determinative question is not how the
court-appointed expert is selected or paid, but whether his or
her "activity is an integral part of the judicial process."
Lavit, 839 P.2d at 1144; see LaLonde, 539 N.E.2d at 542 n.9 ("the
fact that the Probate Court ordered [the plaintiff] to be
responsible for the cost of [the court-appointee's] services does
not affect [the appointee's] status as a quasi-judicial officer
entitled to immunity"); Howard, 271 Cal. Rptr. 893 (granting
absolute judicial immunity to privately hired and paid neutral
psychologist).
7 Guinn also argues that she should be granted absolute
testimonial witness immunity. The superior court did not address
this issue, instead relying on the doctrine of quasi-judicial
immunity. Since our holding that Guinn is protected by absolute
quasi-judicial immunity is dispositive, we decline to address the
witness immunity issues.
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