Opinion

Nichols v. Fahrenkamp

  • 2019 IL 123990
Court
Illinois Supreme Court
Filed
Jun 20, 2019
Status
Unpublished
Cited by
2 cases
Authority
More cited than 45.7%

The opinion

2019 IL 123990

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 123990)

ALEXIS NICHOLS, f/k/a Alexis Brueggeman, Appellee, v.

DAVID FAHRENKAMP et al., Appellants.

Opinion filed June 20, 2019.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, Theis, and

Neville concurred in the judgment and opinion.

OPINION

¶1 This appeal asks whether defendant David Fahrenkamp has quasi-judicial

immunity from tort liability for his conduct within the scope of his appointment as

guardian ad litem for plaintiff Alexis Nichols. We hold that he has such immunity.

We reverse the appellate court’s decision and affirm the circuit court’s grant of

summary judgment in defendant’s favor.

¶2 BACKGROUND

¶3 In 2004 plaintiff Alexis Nichols, formerly known as Alexis Brueggeman,

received $600,000 as part of a settlement for injuries she suffered in a motor vehicle

accident. Because Nichols was only 11 years old at the time of the settlement, the

probate court appointed her mother, Jelanda Miller, as her guardian to administer

her estate. Additionally, the court appointed defendant David Fahrenkamp as

guardian ad litem. The court’s order stated only that “[t]he court being fully

advised in the premises does hereby appoint David Fahrenkamp as Guardian Ad

Litem for the minor child, ALEXIS BRUEGGEMAN.”

¶4 In 2012 Nichols sued her mother, claiming that she used $79,507 of settlement

funds for her own benefit rather than for Nichols’s. The trial court ruled in

Nichols’s favor but limited recovery to $16,365, a 2007 Jeep Compass, and

$10,000 in attorney fees. The court found that Nichols’s mother was not liable for

the entire $79,507 when Nichols had a “guardian ad litem who approved the

estimates and expenditures.”

¶5 Next Nichols initiated this lawsuit against defendant David Fahrenkamp and his

law office, alleging that Fahrenkamp committed legal malpractice when he

approved expenditures that were not in Nichols’s interests. Nichols alleged that

Fahrenkamp acted negligently by failing to adequately monitor and audit her

mother’s requested expenditures and in failing to report any irregularities to the

court. She also claimed that throughout his time as guardian ad litem Fahrenkamp

never met with her, consulted with her regarding her mother’s expenditures, or

even informed her that he had been appointed as her guardian ad litem.

¶6 First in his motion to dismiss and later in his motion for summary judgment,

Fahrenkamp contested these factual allegations. He claimed that he gave Nichols

his business card when he was first appointed and that he met with her on three

separate occasions during his appointment. Apart from his factual claims,

Fahrenkamp also asserted that guardians ad litem have quasi-judicial immunity so

he was not liable for any negligence during his appointment.

¶7 The circuit court of Madison County denied Fahrenkamp’s motion to dismiss

but granted his motion for summary judgment. After noting that no Illinois case has

specifically held that guardians ad litem have quasi-judicial immunity, the circuit

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court surveyed cases that involved other roles with similar responsibilities.

Vlastelica v. Brend, 2011 IL App (1st) 102587, and Cooney v. Rossiter, 583 F.3d

967 (7th Cir. 2009), held that child representatives have immunity, and

Heisterkamp v. Pacheco, 2016 IL App (2d) 150229, extended immunity to a

court-appointed expert who assisted in a custody evaluation. Based on these cases,

the circuit court determined that if Fahrenkamp acted according to the appointing

court’s directions then he was immune from liability. Because the order appointing

Fahrenkamp did not specify additional responsibilities, Fahrenkamp had the

limited role of providing recommendations to the court regarding Nichols’s best

interests. The circuit court concluded that he was immune from liability for his

conduct in this capacity, so it granted summary judgment in Fahrenkamp’s favor.

¶8 The appellate court reversed the circuit court’s summary judgment order. 2018

IL App (5th) 160316. In Stunz v. Stunz, 131 Ill. 210, 221 (1890), this court

described the “duty of the guardian ad litem, when appointed, to examine into the

case and determine what the rights of his wards are, and what defense their interest

demands, and to make such defense as the exercise of care and prudence will

dictate.” Based on Stunz, the appellate court concluded that guardians ad litem have

a duty to protect their wards’ assets and interests. The court determined that

defendant Fahrenkamp had “a duty to act as an advocate on behalf of plaintiff.”

2018 IL App (5th) 160316, ¶ 14. It added that immunizing guardians ad litem from

tort suits would be inconsistent with this duty.

¶9 The appellate court also rejected Fahrenkamp’s reliance on Vlastelica, 2011 IL

App (1st) 102587. The appellate court distinguished Vlastelica because that

dissolution of marriage case involved opposing parties who might sue or otherwise

harass a guardian ad litem out of frustration with the results of the proceedings. Id.

¶ 16. The underlying lawsuit here, however, involved the distribution of assets and

only one party. The appellate court characterized the relationship between this

guardian ad litem and ward as “equivalent to the relationship between a trustee and

a beneficiary.” Id. It found that, outside the antagonistic context created by

litigating parents, guardians ad litem do not need protection from unwarranted

harassment and do not require quasi-judicial immunity. Id. ¶¶ 16, 18.

¶ 10 Justice Goldenhersh dissented. Relying heavily on Vlastelica, the dissent

agreed with Fahrenkamp that guardians ad litem do not serve as advocates for their

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wards but act as agents of the court. Id. ¶ 25 (Goldenhersh, J., dissenting) (citing

Vlastelica, 2011 IL App (1st) 102587, ¶¶ 21-23). Because they are “arms of the

court,” the dissent would find that guardians ad litem are entitled to quasi-judicial

immunity. Id. The dissent also expressed concern that denying guardians ad litem

immunity would discourage attorneys from accepting appointments as guardians

ad litem. Id.

¶ 11 Fahrenkamp petitioned this court for leave to appeal, and we allowed that

petition. Ill. S. Ct. R. 315 (eff. July 1, 2018).

¶ 12 ANALYSIS

¶ 13 The appellate court reversed the circuit court’s order awarding summary

judgment in Fahrenkamp’s favor. Summary judgment is proper when “the

pleadings, depositions, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016).

This court reviews a summary judgment order de novo. Forsythe v. Clark USA,

Inc., 224 Ill. 2d 274, 280 (2007). In reviewing the motion, “this court will construe

the record strictly against the movant and liberally in favor of the nonmoving

party.” Id.

¶ 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);

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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.

¶ 17 Fahrenkamp characterizes the guardian ad litem’s function based on the

statutory regime created by the Illinois Marriage and Dissolution of Marriage Act

(Marriage Act) (750 ILCS 5/101 et seq. (West 2016)). The Marriage Act provides

three separate mechanisms for ensuring that courts adequately consider the

interests of minors: a child’s attorney, a child representative, and a guardian

ad litem. Id. It describes those options as follows:

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“(1) Attorney. The attorney shall provide independent legal counsel for the

child and shall owe the same duties of undivided loyalty, confidentiality, and

competent representation as are due an adult client.

(2) Guardian ad litem. The guardian ad litem shall testify or submit a

written report to the court regarding his or her recommendations in accordance

with the best interest of the child. The report shall be made available to all

parties. The guardian ad litem may be called as a witness for purposes of cross-

examination regarding the guardian ad litem’s report or recommendations. The

guardian ad litem shall investigate the facts of the case and interview the child

and the parties.

(3) Child representative. The child representative shall advocate what the

child representative finds to be in the best interests of the child after reviewing

the facts and circumstances of the case. The child representative shall meet with

the child and the parties, investigate the facts of the case, and encourage

settlement and the use of alternative forms of dispute resolution. The child

representative shall have the same authority and obligation to participate in the

litigation as does an attorney for a party and shall possess all the powers of

investigation as does a guardian ad litem. The child representative shall

consider, but not be bound by, the expressed wishes of the child. A child

representative shall have received training in child advocacy or shall possess

such experience as determined to be equivalent to such training by the chief

judge of the circuit where the child representative has been appointed. The child

representative shall not disclose confidential communications made by the

child, except as required by law or by the Rules of Professional Conduct. The

child representative shall not render an opinion, recommendation, or report to

the court and shall not be called as a witness, but shall offer evidence-based

legal arguments. The child representative shall disclose the position as to what

the child representative intends to advocate in a pre-trial memorandum that

shall be served upon all counsel of record prior to the trial. The position

disclosed in the pre-trial memorandum shall not be considered evidence. The

court and the parties may consider the position of the child representative for

purposes of a settlement conference.” Id. § 506(a).

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Of these three options, a child’s attorney is least associated with the judicial

process. The child’s attorney is “independent” and owes the child client “undivided

loyalty.” Next is the child representative, who acts as an “advocate” for the child’s

best interests. Like the child’s attorney, the child’s representative “shall have the

same authority and obligation to participate in the litigation as does an attorney for

a party.” Also like a traditional attorney, the child representative “shall not render

an opinion, recommendation, or report to the court and shall not be called as a

witness, but shall offer evidence-based legal arguments.” However, the child

representative “shall possess all the powers of investigation as does a guardian

ad litem” and is not bound by the child’s expressed wishes when determining the

child’s best interests. The role of child representative is “a hybrid of a child’s

attorney [(750 ILCS 5/506(a)(1))] and a child’s guardian ad litem.” Cooney, 583

F.3d at 969.

¶ 18 Among these three positions, guardian ad litem is the most associated with the

judicial process. The guardian ad litem provides the court with a report on the

child’s best interests. That report is available to all parties, and the guardian

ad litem may testify as a witness. These responsibilities clearly indicate that a

guardian ad litem under the Marriage Act is not an “advocate” in the manner of

either the child’s attorney or a child representative.

¶ 19 Fahrenkamp contends that he filled the role of a guardian ad litem as it is

described in the Marriage Act. Although he concedes that he was not appointed

under the Marriage Act, Fahrenkamp claims that the court that appointed him relied

on its inherent authority. In In re Mark W., 228 Ill. 2d 365, 375 (2008), this court

concluded that a circuit court had the inherent authority to appoint a guardian

ad litem to report on the best interests of a mentally disabled parent. In re Mark W.

described the guardian ad litem’s role as the “ ‘eyes and ears of the court’ and not as

the ward’s attorney.” Id. at 374 (quoting In re Guardianship of Mabry, 281 Ill. App.

3d 76, 88 (1996)). Fahrenkamp argues that his appointment here relied on this

authority and that a guardian ad litem appointed pursuant to In re Mark W. fulfills a

similar function to a guardian ad litem under the Marriage Act.

¶ 20 Nichols provides a competing characterization of the guardian ad litem’s

function. She urges the court to ignore the Marriage Act’s framework because this

case does not involve any dissolution of marriage or custody dispute. Instead, the

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case from which this lawsuit stems involved the distribution of a minor’s assets.

Nichols claims that Fahrenkamp was appointed under article XI of the Probate Act

of 1975 (Probate Act) (755 ILCS 5/art. XI (West 2016)). Section 11-10.1(b) of the

Probate Act provides that “[i]n any proceeding for the appointment of a standby

guardian or a guardian the court may appoint a guardian ad litem to represent the

minor in the proceeding.” Id. § 11-10.1(b). Additionally, section 27-3 states that a

“guardian ad litem appointed under this Act shall file an answer, appear and defend

on behalf of the ward or person not in being whom he represents.” Id. § 27-3.

¶ 21 Like the appellate court, Nichols claims that Fahrenkamp’s role as guardian

ad litem was to serve as her “advocate.” 2018 IL App (5th) 160316, ¶ 14. She relies

on this court’s decision in Stunz, 131 Ill. 210. In that case a widow had sought to

partition land that was part of her deceased husband’s estate. The husband’s minor

children from a previous marriage lived on that land, and the court had appointed a

guardian ad litem to represent them in the partition proceedings. Initially the widow

succeeded in selling the land, but later the minor children appealed and accused her

of fraud. Id. at 211-15

¶ 22 During the subsequent court proceedings, this court determined that the minors’

guardian ad litem had abandoned his responsibilities to the children. The court

explained:

“It is the duty of the guardian ad litem, when appointed, to examine into the

case, and determine what the rights of his wards are, and what defense their

interest demands, and to make such defense as the exercise of care and

prudence will dictate. He is not required to make a defense not warranted by

law, but should exercise that care and judgment that reasonable and prudent

men exercise, and submit to the court for its determination all questions that

may arise, and take its advice and act under its direction in the steps necessary

to preserve and secure the rights of the minor defendants. The guardian ad litem

who perfunctorily files an answer for his ward, and then abandons the case, fails

to comprehend his duties as an officer of the court.” Id. at 221-22.

The guardian ad litem in Stunz failed to fulfill his obligation to mount a legal

defense of the ward’s interests. Id. at 222. Nichols urges us to apply the same

standard to Fahrenkamp.

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¶ 23 Nichols also relies on an out-of-state case—Simpson v. Doggett, 156 S.E. 771

(S.C. 1930). There the Supreme Court of South Carolina provided a similar account

of the guardian ad litem. The South Carolina court described the guardian

ad litem’s “duty fully to protect the infant’s interests in all matters relating to the

litigation.” Id. at 773. Moreover, Simpson explicitly stated that a guardian ad litem

“may be punished for his neglect as well as made to respond to the infant for the

damage sustained.” Id.

¶ 24 Throughout the past 40 years, the duties of the guardian ad litem in Illinois have

evolved. At the time of Stunz (1890), this court first described the guardian

ad litem’s duty to raise a legal defense of the ward’s interest. When the General

Assembly enacted the Probate Act and passed section 11-10.1 of the Probate Act in

1979, it had a similar view of guardians ad litem. The Probate Act provided for the

appointment of a guardian ad litem to “represent” the minor (755 ILCS

5/11-10.1(b) (West 2016) (added by Pub. Act 80-1415 (eff. Jan. 1, 1979))) and to

“file an answer, appear and defend on behalf of the ward” (id. § 27-3 (added by

Pub. Act 79-328 (eff. Jan. 1, 1976))).

¶ 25 In early cases under the Probate Act of 1975, guardians ad litem acted much

like traditional attorneys. For example, In re Estate of Cohn, 95 Ill. App. 3d 204,

206 (1981), involved a petition for guardianship under the Probate Act. The court

appointed a guardian ad litem whose law office provided the minor with legal

representation before both the trial and appellate courts. Id. The guardian ad litem

in Roth v. Roth, 52 Ill. App. 3d 220, 227 (1977), also acted as an “advocate” for two

children by delivering a closing argument and filing an appeal on the children’s

behalf.

¶ 26 Similarly, In re Estates of Azevedo, 115 Ill. App. 3d 260, 262 (1983), involved a

dispute concerning legal fees for an attorney who, in different court proceedings,

acted both as a minor’s attorney under the then-existing version of the Marriage Act

and as the child’s guardian ad litem under the Probate Act. In 1981, when those

proceedings began, section 506 of the Marriage Act did not contain the three-part

division of roles that it does now. Instead it provided:

“ ‘Representation of Child. The court may appoint an attorney to represent the

interests of a minor or dependent child with respect to his support, custody and

visitation. The court may also appoint such attorney to serve as the child’s

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guardian-ad-litem. The court shall enter an order for costs, fees and

disbursements in favor of the child’s attorney and guardian-ad-litem, as the case

may be. The order shall be made against either or both parents, or against the

child’s separate estate.’ ” (Emphasis in original.) Id. at 263 (quoting Ill. Rev.

Stat. 1981, ch. 40, ¶ 506).

The decision in In re Estates of Azevedo does not even hint that any conflict of

interest arose from an individual contemporaneously acting as both attorney and

guardian ad litem, because at the time these roles were largely coextensive. Instead

the appeal concerned which statutory regime governed who paid the attorney fees.

See also Layton v. Miller, 25 Ill. App. 3d 834, 839 (1975) (explaining that “clearly

a guardian ad litem should be appointed to represent the minors, and no reason

appears why it could not be the same attorney who was originally appointed as

guardian of their estate. However, the court should be careful that there be no

conflicting interests between the minors and the person representing them.”).

¶ 27 A law review article from 1977—Donald C. Schiller, Child Custody: Evolution

of Current Criteria, 26 DePaul L. Rev. 241 (1977)—described how courts at the

time utilized guardians ad litem to determine children’s best interests. Schiller

explained that as of 1977 “the guardian ad litem ha[d] no power greater than any

other lawyer involved in the litigation” and that the guardian ad litem could

“employ the same tools of litigation available to the primary parties in the case.” Id.

at 253-54. Those “tools” included depositions, document requests, calling and

examining witnesses, and cross-examining other parties’ witnesses. Id. at 254.

¶ 28 Schiller also described the then-existing “controversy over whether the

guardian ad litem should make a written report, and if he does, whether the court

should be permitted to read and consider it.” Id. According to Schiller, Illinois

courts had not addressed this question as of 1977. Id. He approved of the growing

“movement” among states that had passed new legislation concerning these issues.

Those statutes provided minors with attorneys who were not called “guardians

ad litem,” but they also allowed investigators to file reports with the court. Id. at

255-57.

¶ 29 Although in 1979 article XI of the Probate Act and the Marriage Act shared the

Stunz view of guardians ad litem, the General Assembly has amended section 506

of the Marriage Act multiple times. In 2000 the General Assembly passed Public

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Act 91-410, § 5 (eff. Jan. 1, 2000). This bill amended section 506 of the Marriage

Act and established the tripartite division between attorneys, child representatives,

and guardians ad litem. That 2000 version of the statute allowed the court to

appoint a “guardian ad litem to address issues the court delineates.” 750 ILCS

5/506(a)(2) (West 2000). In 2006, Public Act 94-640, § 5 (eff. Jan. 1, 2006)

clarified the guardian ad litem’s role to “testify or submit a written report.” Now

that section draws a clear distinction between guardians ad litem and children’s

attorneys, with child representatives occupying a middle ground. 750 ILCS 5/506

(West 2016).

¶ 30 While the meaning of “guardian ad litem” in the Marriage Act has changed,

article XI of the Probate Act has maintained its 1979 framework. The text of section

11-10.1(b) has remained largely unchanged since it took effect in 1979. See Pub.

Act 80-1415 (eff. Jan. 1, 1979). Likewise, the General Assembly has not amended

section 27-3 since it passed that statute in 1975 (see Pub. Act 79-328 (eff. Jan. 1,

1976), and that section directly copied a section of the earlier Probate Act from

1939 (see Ill. Rev. Stat. 1939, ch. 3, ¶ 338). As Nichols correctly points out, the text

of article XI of the Probate Act continues to allow a court to appoint a “guardian

ad litem” to “represent” a minor. See 755 ILCS 5/11-10.1(b) (West 2016); Id.

§ 27-3.

¶ 31 Notably, the General Assembly has amended other sections of the Probate Act

to reflect the newer usage of the phrase “guardian ad litem.” Article XIa of the

Probate Act—not to be confused with article XI—governs the appointment of

guardians for adults with intellectual disabilities. Prior to 1995, section 11a-10 of

the Probate Act allowed a court to appoint a guardian ad litem “to represent the

respondent,” just as section 11-10.1 currently provides for guardianship

proceedings involving minors. (Emphasis added.) 755 ILCS 5/11a-10(a) (West

1994). However, in 1995 the General Assembly updated article XIa of the Probate

Act to reflect the more common use of “guardian ad litem.” Pub. Act 89-396, § 15

(eff. Aug. 20, 1995). After the 1995 amendment, section 11a-10(a) allowed the

court to appoint a guardian ad litem “to report to the court concerning the

respondent’s best interests consistent with the provisions of this Section.” 755

ILCS 5/11a-10(a) (West 1996); Pub. Act 89-396, § 15 (eff. Aug. 20, 1995); see also

In re Guardianship of Mabry, 281 Ill. App. 3d at 88.

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¶ 32 Although the General Assembly has brought section 506 of the Marriage Act

and section 11a-10 of the Probate Act into conformity, it has not done the same for

section 11-10.1 of the Probate Act. As a result of this incongruity between different

statutory regimes, in recent years Illinois courts have appointed guardians ad litem

to report on children’s best interests, as described by the Marriage Act, even in

proceedings under article XI of the Probate Act. For example, in In re Estate of

M.J.E., 2016 IL App (2d) 160457-U, a child’s grandparents sought to be appointed

the child’s guardians under the Probate Act (755 ILCS 5/11-8 (West 2014)). The

appellate court explicitly noted that the circuit court appointed the guardian

ad litem “to interview the child and make a report.” In re Estate of M.J.E., 2016 IL

App (2d) 160457-U, ¶ 15. Similarly in In re Estate of Cadle, 2014 IL App (1st)

131700-U, ¶ 14, a child’s father moved to terminate an order appointing the child’s

aunt as his guardian under the Probate Act. In recounting the facts of the case, the

appellate court summarized the guardian ad litem’s “report” that “recommended”

the court find that the aunt’s guardianship served the child’s best interests. Id.

¶¶ 10, 14.

¶ 33 Because the texts of the Marriage Act and article XI of the Probate Act do not

use the term “guardian ad litem” in the same way, that title does not dictate what

Fahrenkamp’s role was as guardian ad litem in this case. This problem is

particularly acute in this case because the version of the Marriage Act in effect

when Fahrenkamp was appointed provided only that the court may appoint a

“guardian ad litem to address issues as the court delineates.” 750 ILCS 5/506(a)(2)

(West 2016).

¶ 34 Nor does the court’s order in this case specify how it intended Fahrenkamp to

act. The court’s order states only that “[t]he court being fully advised in the

premises does hereby appoint David Fahrenkamp as Guardian Ad Litem for the

minor child, ALEXIS BRUEGGEMAN.”

¶ 35 Nevertheless, we may still conclude that Fahrenkamp’s role in this case

corresponded to a guardian ad litem under the current version of the Marriage Act

and In re Mark W. Most Illinois cases in the twenty-first century that involve a

guardian ad litem treat that guardian ad litem as a reporter or a witness and not as an

advocate. See, e.g., In re Mark W., 228 Ill. 2d at 374 (citing In re Guardianship of

Mabry, 281 Ill. App. 3d at 88); In re Estate of M.J.E., 2016 IL App (2d) 160457-U;

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In re Estate of Cadle, 2014 IL App (1st) 131700-U. In contrast, cases in which a

guardian ad litem “represent[ed]” a ward as an advocate date to earlier in Illinois’s

history. 755 ILCS 5/11-10.1 (West 2016); In re Estates of Azevedo, 115 Ill. App. 3d

260; In re Estate of Cohn, 95 Ill. App. 3d 204; Roth, 52 Ill. App. 3d 220; see also

Rom v. Gephart, 30 Ill. App. 2d 199, 208 (1961). The more recent cases provide a

more fitting context for viewing the court’s order here than outdated cases like In re

Estates of Azevedo or Gephart.

¶ 36 The cases on which the parties rely support our conclusion. Nichols relies on

Stunz and Simpson. Simpson is an almost 90-year-old case from South Carolina that

even that state’s supreme court undermined in Fleming v. Asbill, 483 S.E.2d 751,

756 (S.C. 1997). In holding that guardians ad litem in custody disputes have

quasi-judicial immunity, Fleming described how guardians ad litem in South

Carolina had changed throughout the twentieth century. As in the above discussion

of Illinois law, the South Carolina court explained that

“[t]he role of guardians ad litem in the 1990’s is not the same as the role they

played in the 1920’s. Their role has changed significantly in recent decades.

Whereas in the past, the guardian ad litem served in almost a trustee-like

capacity, seeking to specifically advocate the pecuniary interests of the ward, a

present-day guardian ad litem in a private custody dispute functions as a

representative of the court appointed to assist it in protecting the best interests

of the ward.” Fleming, 483 S.E.2d at 754.

¶ 37 Although it is an Illinois case, Stunz, 131 Ill. 210, is an infrequently cited case

from the nineteenth century. At that time the phrase “guardian ad litem” applied to

an attorney who filed an answer on behalf of a minor, determined the ward’s rights,

and made legal arguments on that ward’s behalf. Id. at 221. In the nearly 130 years

since this court decided Stunz, however, another use of the phrase “guardian

ad litem” has developed.

¶ 38 Fahrenkamp rightly relies on this court’s description of the guardian ad litem in

the 2008 case In re Mark W., 228 Ill. 2d at 374. In In re Mark W. we explained that

“[t]he traditional role of the guardian ad litem is not to advocate for what the ward

wants but, instead, to make a recommendation to the court as to what is in the

ward’s best interests.” Id. This is entirely consistent with the function of a guardian

ad litem under the current Marriage Act as an investigator and a “witness” and with

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the circuit court’s order in this case. 750 ILCS 5/506(a)(2) (West 2016).

Fahrenkamp’s involvement in this case was limited to reviewing Nichols’s

mother’s requests for disbursements of funds and reporting to the court whether he

approved or disapproved of each disbursement. Therefore his role as guardian

ad litem corresponded to the use of that phrase in the Marriage Act and In re Mark

W.

¶ 39 Nichols insists that the circuit court would not have relied on the Marriage Act

or In re Mark W. because this was not a dissolution of marriage case. She contends

that the circuit court must have intended Fahrenkamp to fill the role of a guardian

ad litem under article XI of the Probate Act because article XI is the section of the

Probate Act regarding minors and this was a probate case involving a minor.

¶ 40 However, this was not a proceeding for the appointment of a guardian. Section

11-10.1 of the Probate Act does not state that it applies to every proceeding

involving a minor’s property rights. Instead it provides that “[i]n any proceeding

for the appointment of a standby guardian or a guardian the court may appoint a

guardian ad litem to represent the minor in the proceeding.” (Emphasis added.) 755

ILCS 5/11-10.1 (West 2016). This phrase limits the applicability of section

11-10.1.

¶ 41 In contrast, In re Mark W. allows the court to appoint a guardian ad litem based

on its inherent authority, apart from any statutory provision. 228 Ill. 2d at 374. As

exemplified by In re Estate of M.J.E., 2016 IL App (2d) 160457-U, and In re Estate

of Cadle, 2014 IL App (1st) 131700-U, a court may appoint a guardian ad litem to

report on a ward’s best interests, regardless of whether the underlying proceedings

involve the Probate Act or not. Therefore, we see no reason to presume that the

circuit court relied on section 11-10.1 of the Probate Act when it appointed

Fahrenkamp. For these reasons, we find that Fahrenkamp’s role was analogous to a

guardian ad litem under the Marriage Act or In re Mark W.

¶ 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

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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).

¶ 45 Although the Illinois Appellate Court has not specifically ruled that guardians

ad litem have immunity, it has held that child representatives are protected. In

Vlastelica, the court cited Cooney’s discussion of the relationship between

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guardians ad litem and child representatives. 2011 IL App (1st) 102587, ¶¶ 21-23

(citing 750 ILCS 5/506(a)(2), (3) (West 2010)). The Vlastelica court then applied

the Cleavinger factors to evaluate the child representative’s function and

determined that the representative aids the court in determining the child’s best

interests. Id. ¶¶ 24-26 (citing Golden v. Nadler, Pritikin & Mirabelli, LLC, No. 05

C 0283, 2005 WL 2897397, at *10 (N.D. Ill. Nov. 1, 2005)). The court concluded

that child representatives need judicial immunity to protect them from potentially

litigious parents. See also Davidson v. Gurewitz, 2015 IL App (2d) 150171

(repeating Vlastelica’s holding that child representatives are immune from liability

for conduct within the scope of their appointment).

¶ 46 As explained above, the case for finding that the Marriage Act’s guardians

ad litem have quasi-judicial immunity is even stronger than the case for child

representatives. Whereas child representatives have some degree of independence

from both the child’s wishes and the court, the guardian ad litem is the “ ‘eyes and

ears of the court.’ ” In re Mark W., 228 Ill. 2d at 374 (quoting In re Guardianship of

Mabry, 281 Ill. App. 3d at 88). The court in Vlastelica could not conclude that child

representatives have immunity unless it also presumed that guardians ad litem do

as well.1

¶ 47 Nichols urges us to reject all these authorities because they involved custody

disputes, dissolution of marriage proceedings, or similar contexts in which multiple

parties engaged in contested litigation. In contrast, this case involves the

distribution of a minor’s assets. Nichols contends that when a case involves only

one party, guardians ad litem do not face the risk of lawsuits from unsatisfied

parents and, therefore, do not need immunity from liability.

¶ 48 The facts of this case clearly demonstrate the flaw in Nichols’s claim.

According to Nichols, Fahrenkamp’s role as guardian ad litem required him to

accuse her mother of neglecting Nichols’s best interests. Because Fahrenkamp did

not challenge her mother’s expenditures, Nichols accused him of malpractice and

filed this lawsuit. Even though the underlying proceeding here did not involve the

adversarial process, the stakes were high, and the issues were sensitive ones. Courts

1

Nothing in this opinion should be construed as holding that child representatives also have

quasi-judicial immunity. This issue is not before the court, and we express no opinion on it.

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appoint guardians ad litem in cases “involving the support, custody, visitation,

allocation of parental responsibilities, education, parentage, property interest, or

general welfare of a minor or dependent child.” 750 ILCS 5/506(a) (West 2016).

Even without opposing parties, such proceedings are often emotionally fraught and

potentially upsetting. Just as in child custody or dissolution proceedings, in probate

cases “[e]xperts asked by the court to advise on what disposition will serve the best

interests of a child in a custody proceeding need absolute immunity in order to be

able to fulfill their obligations ‘without the worry of intimidation and harassment

from dissatisfied parents.’ ” Vlastelica, 2011 IL App (1st) 102587, ¶ 21 (quoting

Cooney, 583 F.3d at 970).

¶ 49 Therefore, we hold that guardians ad litem who submit recommendations to the

court on a child’s best interests are protected by quasi-judicial immunity.

Additionally, this case demonstrates why it is important for lower courts to make

abundantly clear what each person’s role is. Courts, attorneys, and other

professionals should strive to avert misunderstandings before any issues develop.

When a circuit court appoints someone to a position like guardian ad litem, it

should specify that appointee’s role in the order of appointment. Finally, we urge

the General Assembly to consider reviewing the Probate Act and Marriage Act to

ensure that those statutes use the phrase “guardian ad litem” consistently. See 755

ILCS 5/11-10.1(b) (West 2016); id. § 27-3; 750 ILCS 5/506 (West 2016); see also

705 ILCS 405/2-17 (West 2016). Reconciling all these provisions would help

prevent further confusion.

¶ 50 CONCLUSION

¶ 51 The circuit court ruled correctly when it granted summary judgment in

Fahrenkamp’s favor. We reverse the appellate court’s decision and affirm the

judgment of the circuit court.

¶ 52 Appellate court judgment reversed.

¶ 53 Circuit court judgment affirmed.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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