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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christoffersen v. State, Court Custody Investigator's Office (11/5/2010) sp-6522
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DUSTY CHRISTOFFERSEN, )
) Supreme Court No. S-13539
Appellant, )
) Superior Court No. 3-AN-08-6296 CI
v. )
) O P I N I O N
)
STATE OF ALASKA, COURT ) No. 6522 - November 5, 2010
CUSTODY INVESTIGATOR'S )
OFFICE, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: Dusty Christoffersen, pro se, Anchorage,
Appellant. Laura Fox, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
In the course of performing her duties, a court-appointed custody
investigator received a police report regarding an allegation that the child whose custody
was being investigated had engaged in sexual misconduct. The investigator later
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included this information in her custody report, but did not notify the child's parents or
the Office of Children's Services at the time she received the police report. During a
period of time that apparently began before the custody investigator received the police
report and perhaps continued until the custody investigator issued her report, the child
committed further sexual misconduct, this time against his half-sister. The child's father
and stepmother filed suit against the State of Alaska for damages, arguing that the
custody investigator had a duty to warn them upon learning of the child's previous
misconduct. The superior court dismissed the suit on summary judgment. Because
court-appointed custody investigators are entitled to absolute quasi-judicial immunity
from suits arising from the performance of their duties and because that immunity
extends to the State, we affirm.
II. FACTS AND PROCEEDINGS
Mark Christoffersen married Brandi Martin and they had a son, M.C., in
1992. When the couple divorced in 1999, Brandi was awarded primary custody of M.C.
and Mark was granted visitation rights. In 2001 Brandi and M.C. moved to Florida and
Mark lost contact with them for several years. In March 2006 Mark filed a motion to
modify the custody order, seeking primary physical custody of M.C. After the court
served Mark's motion on Brandi, the two resumed contact with each other, and Mark
resumed visitation with M.C. shortly thereafter. By the time Mark and M.C. were
reunited, Mark had married Dusty and the couple had two young daughters.
In May 2006 Master Andrew Brown responded to Mark's motion to modify
M.C.'s custody order by directing the Alaska Court System's Custody Investigator's
Office (the State) to conduct an investigation and prepare a custody report. The State
assigned the case to a custody investigator. The custody investigator interviewed a
number of people over the course of her investigation and requested information from
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collateral resources, including the Anchorage Police Department (APD).
In late June 2006 APD responded to the custody investigator's information
request. Included in APD's response was a report concerning an April 2006 incident in
which M.C. had inappropriately touched a two-year-old girl. According to the report,
M.C. admitted he had touched the child, but the child's mother did not pursue criminal
charges.
The custody investigator distributed her completed report to the court,
Mark, and Brandi in late October 2006. The custody report addressed a number of
custodial issues, including the allegation that M.C. had inappropriately touched the
young child. From this report the Christoffersens apparently learned for the first time
about M.C.'s inappropriate contact with the young child.
A few days after the custody report was distributed, the Christoffersens
contacted the police and told them that M.C. had sexually abused their five-year-old
daughter - M.C.'s half-sister - beginning soon after he resumed visitation with Mark.
During an interview with police, M.C. admitted perpetrating sexual misconduct against
the girl. M.C. was subsequently adjudicated on a charge of sexual assault of a minor in
the fourth degree.
In April 2008 the Christoffersens filed suit against the State, seeking ten
million dollars in damages. They alleged the custody investigator violated her duty to
protect their children by not warning the Christoffersens about the allegations of M.C.'s
prior sexual misconduct immediately after she received the APD report. They also
alleged the custody investigator violated AS 47.17.020's mandated reporting
requirements by not forwarding the APD report about M.C. to the Office of Children's
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Services (OCS).1 After the State filed its answer to the complaint, the Christoffersens
filed a response adding their belief that by not notifying them or OCS as soon as she
received the APD report concerning M.C.'s March 2006 misconduct, the custody
investigator violated several additional statutes contained in Titles 9 and 47.2
The State filed two motions for summary judgment. In its first motion the
State argued that (1) custody investigators are entitled to absolute quasi-judicial
immunity from civil suits arising out of the performance of their duties, and (2) this
immunity bars the Christoffersens's vicarious liability claim against the State. In its
second motion the State argued that the custody investigator had no actionable tort duty
to warn about or control M.C.'s conduct under the statutes cited by the Christoffersens,
Alaska case law, or public policy. The Christoffersens filed a cross-motion for summary
judgment, asserting that the custody investigator violated mandated reporting
requirements.
In November 2008 the superior court granted both of the State's summary
judgment motions, disposing of the Christoffersens's complaint in its entirety and
denying their cross-motion for summary judgment sub silentio. Dusty appealed the
1 AS 47.17.020 requires certain classes of persons, including doctors,
teachers, and peace officers, to report suspected physical, mental, or sexual abuse.
2 The Christoffersens alleged that the custody investigator violated the
following statutes: AS 09.10.065 ("Commencement of actions for acts constituting
sexual offenses"); AS 09.10.070 ("Action for torts, for injury to personal property, for
certain statutory liabilities, and against peace officers and coroners to be brought in two
years"); AS 09.15.020 ("Parents or guardian may sue for seduction of child"); AS
09.17.010 ("Noneconomic damages"); AS 09.17.020 ("Punitive damages"); AS
47.05.065 ("Legislative findings related to children"); AS 47.10.020 ("Investigation and
petition"); 47.10.082 ("Health and safety of child and other considerations"); AS
47.10.092 ("Disclosure to certain public officials and employees"); and AS 47.10.093
("Disclosure of agency records").
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superior court's decision; Mark did not.
III. STANDARD OF REVIEW
We review de novo both a grant of summary judgment3 and the legal
question of whether immunity exists as a defense to a claim.4
IV. DISCUSSION
A. Overview
This case requires us to determine whether the superior court correctly
granted summary judgment to the State on the basis of either (1) absolute quasi-judicial
immunity or (2) lack of an actionable tort duty. "We usually consider whether there is
a tort duty before deciding sovereign immunity questions, [though] this is not always our
practice."5 We have analyzed immunity first when "doing so clarifies the public policy
considerations that also bear on our duty analysis,"6 and we do so here for that reason.
We conclude that (1) a court-appointed custody investigator is entitled to absolute quasi-
judicial immunity from civil suits arising from the performance of an investigation, and
(2) when a custody investigator is an employee or contractor of the State, that immunity
extends to the State. We therefore do not need to address the superior court's ruling on
duty.
3 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska
2005) (citing Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
4 Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) (citingState, Dep't
of Transp. & Pub. Facilities v. Sanders, 994 P.2d 453, 456 (Alaska 1997)).
5 Kinegak v. State, Dep't of Corr., 129 P.3d 887, 888 (Alaska 2006) (citing
Kiokun v. State, Dep't of Pub. Safety, 74 P.3d 209, 213 (Alaska 2003)).
6 State, Dep't of Corr. v. Cowles, 151 P.3d 353, 358 (Alaska 2006) (citing
Kiokun, 74 P.3d at 213 (proceeding directly to immunity because that analysis "illustrates
the public policy issues that would also bear on a duty analysis")).
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B. Court-Appointed Custody Investigators Are Protected Under The
Doctrine Of Absolute Quasi-Judicial Immunity.
Judges are absolutely immune from liability for damages for acts performed
in the exercise of their judicial functions.7 This absolute judicial immunity applies "no
matter how erroneous the act may have been, how injurious its consequences, how
informal the proceeding, or how malicious the motive. Only judicial actions taken in the
clear absence of all jurisdiction will deprive a judge of absolute immunity."8
The doctrine of absolute judicial immunity extends not only to judges but
to others who perform duties sufficiently related to the judicial process.9 We have
previously stated that the "clearest case for quasi-judicial immunity is presented in
instances where some aspect of the court's adjudicative responsibility is delegated to
another official such as a master or referee. And in Alaska, as well as in almost all other
jurisdictions, neutral court-appointed experts are also shielded by absolute quasi-judicial
immunity."10
InLythgoe v. Guinn11 we held that quasi-judicial immunity bars suit against
a court-appointed custody investigator.12 Dr. Janet Guinn, a psychologist, had been
appointed in that case "to act as an independent custody investigator" and to make a
7 Trapp v. State, 53 P.3d 1128, 1129 (Alaska 2002).
8 Id. at 1130 (quoting Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989)).
9 Id.
10 Id. (internal footnotes and citations omitted).
11 884 P.2d 1085 (Alaska 1994).
12 Id. at 1093.
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custody recommendation to the court.13 A party to the underlying child custody dispute
subsequently sued Dr. Guinn, alleging that she committed negligent and intentional torts
during her investigation and during the preparation of her report.14 We held that Dr.
Guinn served as an "arm of the court" and performed a function "integral to the judicial
process" in her capacity as a court-appointed custody investigator,15 qualifying her for
immunity under relevant case law. We further held that policy considerations supported
granting her absolute quasi-judicial immunity.16
We explained that "[e]xposure to liability could deter [court-appointed
experts'] acceptance of court appointments"17 and "may affect the manner in which such
court-appointed experts perform their jobs."18 We noted that individuals appointed by
the court to conduct custody investigations exercise discretionary judgment in rendering
their evaluations, and that "the sine qua non of the exercise of such discretion is the
freedom to act in an objective and independent manner."19 If faced with the threat of
personal liability for exercising that discretion, court-appointed experts would be less
likely to offer "the disinterested objective opinion the court seeks."20 Therefore we
concluded that extending absolute judicial immunity to quasi-judicial officers is
13 Id. at 1086.
14 Id.
15 Id. at 1088 (quoting Seibel v. Kemble, 631 P.2d 173, 179 (Haw. 1981)).
16 Id. at 1093.
17 Id. at 1089 (quoting Lavit v. Superior Court, 839 P.2d 1141, 1144 (Ariz.
App. 1992)).
18 Id.
19 Id.
20 Id. at 1090 (citingLaLonde v. Eissner, 539 N.E.2d 538, 541 (Mass. 1989)).
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appropriate to prevent a professional who is delegated judicial duties to aid the court
from becoming a "lightning rod for harassing litigation."21
Nothing distinguishes Lythgoe from this case. Custody investigators
performing duties pursuant to their employment by or contract with the Alaska Court
System's Custody Investigator's Office are quasi-judicial officers.22 As such they are
entitled to absolute quasi-judicial immunity from suits arising out of the performance of
those duties.23 Dusty nonetheless appears to contend that the custody investigator here
is not immune from suit because she is not entitled to the immunity described in AS
47.17.050, which protects persons who make good-faith reports of suspected child abuse
from civil or criminal liability. Although Dusty may be correct in contending that AS
47.17.050 would not immunize the custody investigator from suit in this case, the
investigator is nevertheless protected by common-law quasi-judicial immunity.24 Dusty's
contention is therefore without merit.
C. The State May Not Be Held Liable For The Conduct Of Custody
Investigators Who Are Acting Through The Custody Investigator's
Office And Are Shielded By Absolute Quasi-Judicial Immunity.
The Christoffersens named the State as the defendant in their suit, not the
21 Id. (quoting Lavit, 839 P.2d at 1144).
22 See Ogden v. Ogden, 39 P.3d 513, 516 (Alaska 2001) (noting that
"court-appointed custody investigators are officers of the court and perform
quasi-judicial functions").
23 Lythgoe, 884 P.2d at 1093.
24 See B.K. v. Cox, 116 S.W.3d 351, 360-61 (Tex. App. 2003) (holding that
statutorily created immunity for failure to report abuse of a minor does not override
common-law derived judicial immunity in the absence of statutory language explicitly
doing so). AS 47.17.050 contains no statement of intent to override common-law quasi-
judicial immunity.
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custody investigator herself. The Christoffersens have not alleged any separate
negligence by the State. Instead they imply that the State is vicariously liable for the
court-appointed custody investigator's actions.
We have not previously addressed vicarious liability within the context of
absolute quasi-judicial immunity. But we have held that a government employee's
official immunity from suit bars vicarious liability claims against government entities for
the same conduct.25 Other courts addressing this issue have consistently held that an
employee's quasi-judicial immunity bars any vicarious liability claims brought against
the employer.26 We support this view. The policy considerations that support extending
absolute quasi-judicial immunity to court-appointed investigators acting within the scope
and capacity of their appointment also support extending that same immunity to their
principal, here, the State. To conclude otherwise would merely shift the threat of liability
from the agent to the principal and would stifle the "disinterested objective opinion that
25 See Lougusak v. Togiak, 185 P.3d 103, 108-10 (Alaska 2008); Pauley v.
Anchorage Sch. Dist., 31 P.3d 1284, 1285-86 (Alaska 2001).
26 See, e.g., Ward v. San Diego Cnty. Dep't of Soc. Servs., 691 F.Supp. 238,
241 (S.D. Cal. 1988) ("Because plaintiff's only theory of liability against defendant . . .
is respondeat superior, this court also finds that [defendant] is entitled to absolute quasi-
judicial immunity."); Hulsman v. Hemmeter Dev. Corp., 647 P.2d 713, 717 (Haw. 1982)
(holding that under respondeat superior "if the employee has immunity from suit, it
follows that the employer would also be immune" and noting "[t]he reasoning which
justifies this rule is based primarily on public policy") (internal citations omitted); S.J.S.
v. Faribault Cnty., 556 N.W.2d 563, 566 (Minn. App. 1996) ("The policy considerations
that support extending absolute immunity to prosecutors also support extending absolute
immunity vicariously to the county . . . . [T]he threat of litigation against the county . . .
could deter prosecutors from vigorously and fearlessly performing their duties.")
(internal citation omitted); Reddy v. Karr, 9 P.3d 927, 932 (Wash. App. 2000) (holding
that custody investigator's quasi-judicial immunity extended to her employer).
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the court seeks."27
We therefore hold that because the court-appointed custody investigator is
absolutely immune from suits for actions performed within that capacity, the State cannot
be held liable for her conduct.
V. CONCLUSION
We AFFIRM the superior court's grant of summary judgment in favor of
the State on the ground that it is shielded by the custody investigator's absolute quasi-
judicial immunity.
27 Lythgoe, 884 P.2d at 1090 (citing LaLonde, 539 N.E.2d at 541).
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