Collins on Behalf of Collins v. Tabet

BACA, Justice (dissenting).

Although I find Justice Montgomery’s opinion thorough and intriguing, I feel I must respectfully dissent. I would cloak the guardian ad litem in judicial immunity. Through this opinion, the majority chips away at the independence of the judiciary (a doctrine that has been respected since the early days of our government) by limiting the immunity of judges and those who operate under judicial authority, and it severely limits the ability of guardians to pursue the tasks to which they are appointed. The significance of this case to the judicial branch should not be underestimated. 1

Absolute judicial immunity was “solidly established at common law.” Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967). Judicial immunity is not for the benefit of individual judges, “but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335 , 350 n. +, 20 L.Ed. 646 (1871) (citations omitted). 2 It hardly bears repeating that New Mexico has a long-standing tradition of judicial independence that directly relates to our responsibility to the people of New Mexico. See N.M. Const. Art. II, § 18; State ex rel. Anaya v. Scarborough, 75 N.M. 702 , 410 P.2d 732 (1966); State v. Morris, 75 N.M. 475 , 406 P.2d 349 (1965). In Bradley, in addition to the longstanding common law tradition, the Court articulated three policies that support judicial immunity: (1) the need for judicial independence and freedom from potentially coercive suits, id. at 80 U.S. (13 Wall.) 347 ; (2) the burden on judges and the judiciary, and the degradation to the judicial office, created when a judge is forced to defend a judicial decision in a collateral legal attack, id. at 349; and (3) the infringement on the principle of judicial finality. Id. These policies requiring judicial immunity are directly implicated by, and justify, the extension of absolute immunity to a guardian ad litem under the facts and circumstances as presented to us in the case at bar.

As the majority properly points out, the court, in the first instance, bears the responsibility to represent the interests of a minor in court. See at 400, 806 P.2d at 49. The majority also properly notes that the authority to appoint a guardian ad litem, at least in circumstances such as are presented to us in this case, arises either from the court’s inherent authority or from SCRA 1986, 1-017(C), which, of course, is a rule promulgated by this court pursuant to our constitutional authority and responsibility to exercise our power of superintending control. See N.M. Const, art. VI, § 3; Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307 , 551 P.2d 1354 (1976). In other words, the authority to appoint a guardian ad litem is purely judicial and is vested with judicial discretion. It is also well-settled that a judge or judicial officer, acting within the appropriate jurisdiction, is granted immunity. Vickrey v. Dunivan, 59 N.M. 90 , 279 P.2d 853 (1955); see Wiggins v. New Mexico State Supreme Court Clerk, 664 F.2d 812 (10th Cir.1981) (affirming judicial immunity extended to court clerks), cert. denied, 459 U.S. 840 , 103 S.Ct. 90 , 74 L.Ed.2d 83 (1982). 3

In Haden v. Eaves, 55 N.M. 40 , 226 P.2d 457 (1950), this court resolved an issue that, I believe, essentially is dispositive of the instant case. We considered whether a minor, represented by a guardian at trial, could assert error on appeal, although the guardian ad litem had not preserved properly objections below. To resolve that issue, we adhered to the weight of authority and held: “a minor who has a case in court is represented not only by his guardian ad litem, but by the court itself. A guardian ad litem is an arm of the court whose function is to protect the ward, and a court must not permit its arm to strangle him.” Id. at 47 , 226 P.2d at 462 . Thus, we recognized then what the court has partially repudiated today — that the primary and ultimate responsibility for the welfare of a child appearing before a New Mexico court lies with the court. The court can appoint a guardian ad litem to assist it, assigning its responsibility derivatively to authorize the guardian to assist the child and thereby the court in overseeing a settlement. By this action, however, the court has not, and cannot, relinquish its responsibility. I believe that the immunity that cloaks the court in its pursuit of this judicial obligation must also protect the guardian when it assists the court. By not extending immunity to guardians, this court diminishes its own immunity by allowing litigants to circumvent it.

This cloak of immunity has been extended to other judicial officials when they act to assist the court in its judicial role. See Wiggins, 664 F.2d at 815 ; maj. at 396-397, 806 P.2d at 45-46. Extension of immunity to a guardian ad litem (operating as was Tabet) is necessary, not only to fit within our precedent, and not only to prevent the erosion of the court’s immunity, but also to allow a guardian such as Tabet to do what the court has asked of him. See Tindell v. Rogosheske, 428 N.W.2d 386, 387 (Minn.) (“The guardian’s duty is to act within the course of that judicial proceeding in furtherance of the best interests of the child____ A guardian must be free, in furtherance of the goal for which the appointment was made, to engage in a vigorous and autonomous representation of the child. Immunity is necessary to avoid harassment from disgruntled parents who may take issue with any or all of the guardian’s actions.”), affg 421 N.W'.2d 340 (Ct.App.) (1988). 4

An analysis of the role that Tabet was asked to perform demonstrates why immunity should be granted in this case. I disagree with the majority’s characterization of his role (in Section III of its opinion) that guides their decision not to decide this issue as a matter of law. I also disagree with the basis for the majority’s distinction of Tindell. See at 398, 806 P.2d at 47. The majority distinguished Tindell, which granted absolute immunity, because the guardian had been appointed to represent the minor in an action by a government agency against the father for support, whereas here the minor brought the action himself. If anything, I believe Tindell presents a stronger case for not granting immunity to the guardian. In Tindell (and cases cited therein), the guardian was appointed as the sole representative of the child, whose rights were affected by litigation involving his parents and a government entity, with the responsibility to advise whether a settlement was in the best interests of the child. The majority intimates by way of distinguishing the instant case that the appointment of Tabet was collusive or at least was done without the court’s full involvement; thus the majority lays the foundation to determine that Tabet may not have received a delegation of the court’s authority to the extent that he could be defined as an agent of the court. This distinction is irrelevant. It ignores what I believe is the custom in our courts (as I argue later, this is a further reason why this is not a proper question to place before the jury). A judge does not sit by with a list of possible guardians, but in this — as in most matters before it — relies on the assistance of the attorneys representing the parties. Moreover, to the extent that Mikey’s attorney, Perrine, helped procure or recommended Tabet as a possible guardian ad litem, this could only have been to assist the court in furthering its own role — to safeguard the minor’s welfare.

In this case, Mikey already was represented by retained counsel. It would be anomalous to expect the guardian ad litem — even if, as claimed by Collins, he was appointed to represent Mikey because of a conflict of interest arising by virtue of the division of the settlement between Mikey and his parents — to intercede in the negotiations and settlement arrived at by Mikey and his parents as represented by Perrine on one side and the hospital on the other. Tabet was appointed to determine whether the settlement was in the best interest of the minor as against his parents (the arena in which the potential conflict arose), not to negotiate the settlement on behalf of Mi-key or determine whether the amount of the settlement was fair as against the hospital. Perrine presumably had spent the majority of his efforts in representing Mi-key and his parents arriving at that settlement. Perrine had a full awareness of their needs, their bargaining position, and their strategy (which may have included their expectation of future litigation for which a “war chest” may have been needed). We may only speculate as to why Perrine arrived at this settlement in the first place, but so only could Tabet. Tabet was not a participant from the outset as was Perrine. He only came in — as would the court — at the culmination of the proceedings, when the reasonableness of the settlement was at issue before the court. Tabet was vested with limited authority derived from the court. He examined the settlement — made between two fully represented parties — to determine that the child’s interest and welfare were considered. He was not armed with the arsenal available to an attorney representing a party — as was the court, he was not authorized to take depositions or independently determine the facts. He was bound by what the parties presented, with only the power to determine the settlement’s reasonableness. By not extending judicial immunity to guardians, we are altering their limited role and requiring them to go beyond the role assumed by the court to not only examine a settlement to see that it reasonably considers the minor’s welfare, but also to second guess the attorneys and the parties who arrived at the settlement. Even then, the guardian would be subject to potential collateral suit for too vigorously inserting himself into the role of advocate, should the litigation proceed to the detriment of the minor. Cf. Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984) (guardian sued based on overzealous representation of minor’s interest in custody suit).

The majority opinion distinguishes, for the purposes of granting immunity, between whether the guardian ad litem functions as a true arm of the court by assisting the court to carry out its duty to protect the interests of the child, or whether the guardian acts as a representative of the ward. It concludes that, in some instances, “a guardian’s primary or even sole function is to represent his or her ward in the same way that a retained attorney represents his or her client.” At 401, 806 P.2d at 50. This is not, however, the question presented by the facts of this case. Tabet was not appointed as advocate for the child, but to examine the settlement for reasonableness and to insure that it protected the minor’s interest vis a vis his parents.

Thus, I cannot agree with the distinction for purposes of granting quasi-judicial immunity in this or a similar case. The guardian ad litem is appointed by the court pursuant to its judicial authority. The guardian is appointed to perform an integral part of the judicial process as an arm of the court. Moreover, I am not convinced that, even if a guardian is appointed to a position requiring active advocacy, he should not be granted immunity. I cannot distinguish that role from his role as an arm of the court. It is the court’s role to safeguard the interests of the child. If that role requires advocacy, the guardian is, nonetheless, functioning for the court in representing the child, and not, for example, as an attorney hired by the child or its family. I simply cannot separate the guardian’s derivative responsibility to the minor from the court’s primary responsibility. 5

As the majority notes, a guardian represents the interest of the child and assists the court. See at 400, 806 P.2d at 49. Yet, this is not “the rub”. The guardian represents the interest of the child in its role as an officer of the court, acting only as must the court in approving a settlement. The majority’s test seems unworkable when considered in the context of the guardian always having a duty to the child — it seems to me inconsistent to grant immunity when the guardian functions as a “true” arm of the court when it investigates the fairness and reasonableness of a settlement, yet to deny that immunity for the same role — when it is acting as an advocate for the minor — when that is also the role of the court. A further difficulty in this regard is presented when, as the majority indicates, this issue is resolved by a jury. It is unseemly at best, and an erosion of judicial independence at worst, to present this question, which is, in the first instance, a matter of judicial discretion, to the jury for them to determine in hindsight the scope of the delegation of judicial authority.

Even if I were to agree with the majority’s determination that whether immunity attaches is a question turning on the function performed by the guardian, I would disagree with the decision to remand to a jury to determine the nature and extent of the judicial function. The determination of the legal role and the degree to which a guardian may perform a judicial function is a uniquely judicial question that should be decided by the court. As alluded to earlier, trying this case before a jury would inject the jury into a matter of judicial discretion where evidence regarding how a particular guardian may have been chosen would be argued. It would also place the initial judge in the precarious position of defending his practice and explaining his position to the jury, both to the degradation of the judicial office and to the detriment of our court system with its already overcrowded dockets. The system will consume itself as judges are called back for depositions or trial to recall their thought processes in the appointment of every guardian ad litem.

The question before the court was not whether Tabet acted within the scope of his authority as granted by the district court, but whether, as a guardian ad litem, he acted as a judicial officer and was entitled to immunity. I would answer that question with a resounding “yes”. 6

Accordingly, I would extend quasi-judicial immunity to Tabet without requiring a court to first resort to a function-based analysis. Although it seems unfair to me that a guardian ad litem should be subject to liability when it performs a judicial task, it is more significant to me that, by not granting immunity, this court erodes judicial independence by subjecting judgments to collateral suits and by allowing a matter committed to judicial discretion to be attacked in this manner. From my examination of this issue, it is not clear whether a guardian ad litem is always used appropriately, or is even necessary in the circumstances that one is often used. However, assuming the utility of such an office, in the wake of the majority’s opinion, I cannot imagine that many attorneys will be willing to subject themselves to potential liability far in excess to the benefits of the post.

. As noted by Justice Montgomery, this case is before us on certification from the court of appeals. I am basically in accord with the view expressed by Chief Judge Bivins as expressed in his separate unreported opinion, and agree with his advocacy of absolute immunity.

. See also Ryan v. Scoggin, 245 F.2d 54, 58 (10th Cir.1957) ("That deep-seated fundamental rule of ancient origin and frequent repetition rests upon considerations of public policy that such immunity is a concomitant of an independent judiciary which is indispensable to the well-being of a free people.”); Edwards v. Wiley, 70 N.M. 400 , 374 P.2d 284 (1962) (upholding immunity of justice of peace).

. In Wiggins, the tenth circuit recognized that immunity for court clerks was necessary to allow the clerks to perform their duties and to allow judges to function without the threat of collateral attack that would circumvent judicial immunity. 664 F.2d at 815 .

. This raises a fundamental question: if the court is not required to appoint a guardian, and if the court bears the ultimate responsibility for the welfare of the child, why should the court bother to appoint a guardian at all, especially if, as has been alleged here, the guardian may pursue the task negligently? This question may be even more relevant in the aftermath of this opinion, when the appointment of a guardian ad litem potentially may subject the court and its approval of a settlement to collateral attack. Although the court would retain its immunity, the collateral attack on the decision through a suit against the guardian reduces the finality of the court’s decision and may interfere with the judicial process by subjecting the court to second guessing and placing the judge in the position where he or she may be forced to testify in the collateral suit as to the scope of the appointment and to defend his or her choice of appointment. The appointment of a guardian is, of course, a matter committed to judicial discretion. The district courts may consider, however, whether in all cases an appointment is warranted under the circumstances, and, in fact, the effect of today’s opinion may well be to force the responsibility for the minor’s welfare back to the courts without assistance when the courts find a scarcity of attorneys willing to accept the potentially limitless exposure to liability in exchange for the paltry sums received as compensation.

. Of course, this court would not have to go this far in this case. The issue is only whether a guardian appointed to investigate a settlement and to advise the court as to its reasonableness should be granted immunity. The scope of his authority — to determine the reasonableness of the settlement as between the minor and his parents — should make this an easier case and allow the court to grant immunity as a matter of law.

. My proposed resolution of this issue has solid support in precedent from other jurisdictions that favor extending absolute quasi-judicial immunity to guardians ad litem. See, e.g., Cok v. Cosentino, 876 F.2d 1 (1st Cir.1989); Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984); In re Scott County Master Docket, 618 F.Supp. 1534 (D.Minn.1985), aff’d in part sub nom. Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert. denied, 484 U.S. 828 , 108 S.Ct. 97 , 98 L.Ed.2d 58 (1987); Tindell v. Rogosheske, 421 N.W.2d 340 (Minn.Ct. App.), aff’d, 428 N.W.2d 386 (1988); see also at 397, 806 P.2d at 46.