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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