Nichols v. Fahrenkamp

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Supreme Court Date: 2021.01.19

13:58:32 -06'00'

Nichols v. Fahrenkamp, 2019 IL 123990

Caption in Supreme ALEXIS NICHOLS, f/k/a Alexis Brueggeman, Appellee, v. DAVID

Court: FAHRENKAMP et al., Appellants.

Docket No. 123990

Filed June 20, 2019

Rehearing denied September 23, 2019

Decision Under Appeal from the Appellate Court for the Fifth District; heard in that

Review court on appeal from the Circuit Court of Madison County, the Hon.

Barbara L. Crowder, Judge, presiding.

Judgment Appellate court judgment reversed.

Circuit court judgment affirmed.

Counsel on David L. Antognoli and Kevin P. Green, of Goldenberg Heller &

Appeal Antognoli, P.C., of Edwardsville, for appellants.

Roy C. Dripps, Charles W. Armbruster III, and Michael T. Blotevogel,

of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, of

Maryville, for appellee.

Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, P.C., of Chicago,

for amicus curiae Illinois Trial Lawyers Association.

Justices 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 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

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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 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

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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); 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:

“(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.

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(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).

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,

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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 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.

¶ 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.

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¶ 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 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.

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¶ 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 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.

¶ 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

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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; 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

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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 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 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).

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¶ 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 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

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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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 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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