IMMUNITY BROKEN

IMMUNITY BROKEN
ABSTRACT

This article was written to address the immunity claims made by those hired, elected or appointed to serve children in our legal system when they are sued for outrageous acts. This article argues that since the passage of the Child Abuse Prevention and Treatment Act (“The Mondale Act”) false claims of child abuse have wrecked havoc on American families. In order to understand the claims for immunity made by doctors, social workers and attorneys who mis-serve children, this article provides a discussion of immunity and its operation in our law. Following a historical overview, this article describes the various claims to immunity from suit made by government officials, prosecutors, law enforcement personnel, guardians, appointed counsel, social workers and various private parties. For the purpose of illustrating how immunity claims may be addressed, this article presents an actual account of a Michigan case concerning issues of Guardian ad Litem immunity. It is the express position of this author that people who chose to aide or represent children must do so competently and professionally or not at all.

IMMUNITY BROKEN
Demosthenes Lorandos, Ph.D., J.D.
Since the passage of the Child Abuse Prevention and Treatment Act (“The Mondale Act”) false claims of child abuse have wrecked havoc on American families.

Certainly it is true that children are starved, beaten, raped and killed every day. They deserve protection. The purpose of this article is to address the immunity claims made by those hired, elected or appointed to serve children in our legal system. In order to understand the claims for immunity made by doctors, social workers and attorneys who mis-serve children, this article will begin with a brief discussion of immunity and its operation in our law.

The second part of this article will focus on the various claims to immunity from suit made by government officials, prosecutors, law enforcement personnel, guardians, appointed counsel, social workers and various private parties. The last portion of this work will present an actual account of a ground breaking case being fought through the courts of Michigan on the issue of Guardian ad Litem immunity from suit for negligence, incompetence and intentional torts. It is the express position of this author that people who chose to aide or represent children must do so competently and professionally or not at all.

A. JUDICIAL IMMUNITY
EARLY FORMULATIONS:

The concept of judicial immunity developed in our law from early Anglo-Saxon origins. As Professor Block informs:

"Under Anglo-Saxon law of the tenth and eleventh centuries, a judgment (doom) could be impeached by charging the official proposing the judgment (the doomsman) with falsehood. This proceeding, known as "forsaking the doom", developed into the complaint of "false judgment", whereby a dissatisfied litigant obtained a writ commanding the challenged court to cause a record of its proceedings to be made and brought before the court of the litigant's superior lord. The complainant could accept the court's record and thus confine the issues to errors of law. But this record could be challenged by anyone willing to engage in physical combat with the champions of the challenged court. If the challenge succeeded, the lower court's judgment was annulled and the court was amerced." Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879, 881 (l980).

Displeased with trial by combat, law evolved in England, and in the early l7th century Sir Edward Coke in Floyd and Barker, 77 Eng. Rep. 1305 (Star Chamber l607), and The Case of the Marshalsea, 77 Eng. Rep. 1027 (Star Chamber l6l2), laid out the foundation for the doctrine of judicial immunity. In Barker, Coke established the immunity of a judge "for anything done by him as a judge" 77 Eng. Rep. at l307. It seems that Judge Barker convicted William Price of murder and sentenced him to death. After the sheriff executed Mr. Price, one Mr. Floyd brought charges against Judge Barker for conspiracy. Sir Edward Coke's decision gave immunity from suit to all of those involved in the prosecution of Price, made it quite clear that Judge Barker's immunity was absolute. In so doing, Coke identified four (4) grounds in public policy for judicial immunity. First, he indicated a necessity for a finality of judgment. Second, Coke offered that immunity is necessary to maintain judicial independence. Third, Coke held for the independence of thought and freedom from manipulation that immunity would provide, and lastly, Coke offered that in order to engender respect and confidence in the judiciary and the government, immunity for judicial acts was necessary.

Some five years after declaring immunity for judicial acts, Lord Coke modified his doctrine in The Case of the Marshalsea, 77 Eng. Rep. 1027 (Star Chambers l6l2). In Marshalsea, Coke set forth a jurisdictional limitation on the doctrine of judicial immunity. For immunity to apply said Coke, not only did the act have to be judicial in nature, but the judge must have had subject matter jurisdiction over the cause for which he acted. In Marshalsea, a judge presiding over a case in assumpsit found against the defendant. This defendant's surety was jailed until the judgment was paid. The surety brought an action against the judge for his imprisonment and the judge defended by claiming immunity. Rejecting the immunity claim, Coke held that the judge had no jurisdiction over actions in assumpsit and thus the proceedings were void. As Coke described it:

"[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process..." 77 Eng. Rep. at 1038-41.

Clearly, this laid the foundation for judicial immunity. Coke established requirements for its application, restricting immunity to judicial acts made within the judge's jurisdiction. In addition, he set forth a policy underlying the doctrine: (1) insuring the finality of judgment; (2) protecting judicial independence; (3) avoiding continuous attacks on sincere and conscientious judges; and (4) maintaining respect for the judiciary and the government.

The first significant American adaption of judicial immunity came in l8l0, when James Kent authored the New York decision of Yates v Lansing, 5 Jons. 282 (N.Y. Sup. Ct. l8l0) Aff'd 9 Jons. 395(N.Y. 1811). In this case, Chancellor John Lansing, Jr. had arrested John Yates for malpractice and contempt. Yates was subsequently set free on a Writ of Habeas Corpus when the New York Supreme Court found the arrest to have been illegal. Chancellor Lansing claimed that the discharge from jail was illegal and imprisoned Yates again. Yates then brought a civil action against Lansing for violation of the Habeas Corpus Act. Chief Justice Kent of the New York Supreme Court held for the Defendant Chancellor on the grounds of judicial immunity. In its decision, Kent first considered the history of judicial immunity and then applied the immunity test set forth by Lord Coke. Realizing that the new American courts did not have the superior and inferior dichotomy of the English courts, Justice Kent adopted the doctrine to fit the American court's system. The Yates decision had a tremendous impact on American jurisprudence and was considered the leading authority on judicial immunity until the Supreme Court addressed the issue in l868. See e.g. Feinman and Cowen, Suing Judge's: History and Theory, 3l S.C.L.Rev. 20l (l980). In Randall v Brigham, 74 U.S. (7 Wall) 523 (l869) and again in Bradley v Fisher, 80 U.S. (l3 Wall) 335 (l872), Mr. Justice Field incorporated the doctrine into American common law.

After more than a century of virtual silence, the doctrine of judicial immunity resurfaced in Stump v Sparkman, 435 U.S. 349 (l978). In this unfortunate case, a mother brought a petition to Judge Stump to have her fifteen year old daughter sterilized. The mother swore that her daughter was promiscuous and that sterilization would be in the best interest of the child. The judge approved the petition in an ExParte proceeding without giving the daughter notice or an opportunity for a hearing. The daughter was told that she was going to undergo an appendectomy and sterilized. Two years after the operation, when married, this woman discovered that she had been sterilized and brought an action against the judge for violating her constitutional rights. Applying the doctrine from Randall v Brigham and Bradley v Fisher, the Supreme Court held that Judge Stump was absolutely immune from a suit for damages. First, the court determined that Judge Stump had subject matter jurisdiction in acting upon the petition. Second, the court determined that Judge Stump's approval of the petition was a judicial act and, therefore, he was protected by the Doctrine of Judicial Immunity. In reaching its decision in Stump, the court articulated a test to determine what constitutes a judicial act. The court offered:

"The relevant cases demonstrate that the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." 435 U.S. 349, 362 (emphasis added)


"ABSOLUTE JUDICIAL IMMUNITY" DOES NOT EXIST IN AMERICAN LAW

In Pulliam v Allen, 456 U.S. 522 (l984), the court held that judicial immunity does not bar an award of attorney fees against a judge when a plaintiff wins a suit against that judge for injunctive or declaratory relief. In Pulliam, the Supreme Court ruled that a magistrate was liable for over $80,000.00 in legal fees and costs because her conduct caused private injury to Plaintiff Allen. The Court held in this fashion even though her actions were indisputably judicial acts within her subject matter jurisdiction. In this case, Magistrate Pulliam set bail for several defendants who were accused of non-jailable offenses. Pulliam, 466 U.S. at 525. When some of the accused individuals were unable to make bail, she ordered them incarcerated. Richmond Allen, one of the bail defendants, sued Magistrate Pulliam for violating his civil rights. Allen did not seek monetary damages; rather he sought injunctive relief to prevent Pulliam from continuing this kind of practice. The first court Allen approached found Pulliam's actions unconstitutional and enjoined her from engaging in such conduct in the future. Allen v Burt, 690 F2d 376, 377 (4th Cir. l982). Interestingly, this District Court awarded Allen attorney's fees of $7,000.00 under USC §l988. Judge Pulliam appealed the award claiming judicial immunity and the Supreme Court affirmed despite finding that Pulliam had acted in her judicial capacity and within her subject matter jurisdiction. The court held that the doctrine of judicial immunity does not preclude injunctive relief as opposed to money damages against a judicial officer acting in a judicial capacity and, judicial immunity does not preclude a statutory award of attorney's fees generated in obtaining that injunctive relief. After this "death blow" for absolute judicial immunity, numerous efforts have been attempted in the Federal Congress pushed primarily by the American Bar Association to re-institute absolute judicial immunity. All have failed.

Following on Pulliam in l984, the Court took up Forrester v White, 44 U.S. 2l9, l08 S.Ct. 538 (l988). In White a former probation officer filed an action against a state court judge alleging that she was demoted and discharged on account of her sex in violation of the Equal Protection clause of the Fourteenth Amendment. After a jury found in favor of the former probation officer, the District Court for the Southern District of Illinois entered summary judgment for the judge on the grounds of “absolute” judicial immunity. The Court of Appeals for the Seventh Circuit applied the two prong Stump test and logically concluded that the firing of the probation officer was a judicial act within the judge's jurisdiction. 792 F2d 647 (7th Cir. l986). Following a Writ of Certiorari, the United States Supreme Court unanimously reversed. Writing for the court, Justice O'Connor offered that the court "has generally been quite sparing in its recognition of claims to absolute official immunity" 44 U.S. at 224. Holding that the actions of Judge White in firing Ms. Forrester were not entitled to judicial immunity, the court refused to apply even quasi-judicial immunity. See also, Guercio v Brody, 814 F2d 1115 (1987). Reversing the District and 7th Circuit Court of Appeals, Forrester like Pulliam make it quite clear that absolute judicial immunity is dead in American jurisprudence.
In the Mireles v Waco, ___ U.S.___,112 S. Ct. 286 (1991) opinion, the Court issued a per curiam opinion and disavowed the functional approach articulated in Forrester and returned to the Stump v Sparkman two-pronged judicial act test. As the law stands, there is no "absolute judicial immunity" and our Supreme Court requires the two-prong tests:

1. Does the court have subject matter jurisdiction;
2. Is the act a judicial act.

Then and only then, according to Mireles (1991) does judicial immunity apply.

It was this very test and the extra-judicial acts of Judge G. Michael Hocking, of Michigan’s 56th Circuit Court that led the Federal Court for the western district of Michigan to enter a directed verdict against the judge. In McPherson v Kelsey, et al. U.S. District Court case number 5:93-cv-166, Judge Hocking ordered an attorney jailed for contempt when she argued against his unlawful conduct in a custody and visitation matter. The attorney was literally dragged from the courtroom where deputies beat her. She sustained brain damage from the assault. Her client, the father involved in the visitation dispute protested the action. At one point the Judge ran from the Courtroom, instructed his deputies to seize the father, search him at gunpoint and expel him from the courthouse. The father and attorney filed separate 42 USC § 1983 actions. On June 23rd, 1995 Judge Richard A. Enslen of the U S District Court for the Western District of Michigan entered a directed verdict against Judge Hocking on First, Fourth and Fourteenth Amendment claims and four days later, the jury found against Judge Hocking on these claims and awarded the father money damages.

B. EXTRA-JUDICIAL IMMUNITY CLAIMS
IMMUNITY CLAIMS CIRCUMSCRIBED BY THE COURT:

Our courts have extended partial immunity for “official and necessary acts” to sheriffs, Doe v McFaul, 599 F.Sup. l42l (N.D. Ohio l984); prosecutors Imbler v Pachtman, 424 U.S. 409 (l976); coroners, Lambert v Garlo, l9 Ohio App 3rd 295, 484 NE2d 260 (l985); court reporters, Brown v Charles, 309 F.Sup. 8l7 (E.D. Wis. l970); clerks of the court, Wiggins v New Mexico State Supreme Court Clerk, 664 F2d 8l2 (l0th Cir. l98l); jurors, White v Hegerhorst, 4l8 F2d 894 (9th Cir. l969); grand jurors, Turpen v Booth, 56 Cal. 65 (l880); witnesses, Briscoe v LaHue, 460 U.S. 325 (l983); bailiffs, Wolf v Flanagan, No. l4746 (Ohio Ct. App. Oct. 2, l980); and arbitrators, Hill v Aro Corp., 263 F.Sup. 324 (N.D. Ohio l967).

But the Court has, more often than not, been extremely circumscribed in granting judicial immunity. Indeed, Chief Justice Marshall in the famous Marbury v Madison, 1 Cranch 137 (1803) made it quite clear:

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws when he receives an injury." 1 Cranch 137 at 163 (1803).

Indeed, not even the Sergeant-at-Arms of the United States Congress' House of Representatives has been granted immunity. In Kilbourn v Thompson, 103 US 168 (1881):

"the Sergeant-at-Arms of the House of Representatives arrested the plaintiff under a warrant issued by the House. Plaintiff refused to testify in a congressional investigation and the House issued a contempt citation against him. The court held that the House did not have jurisdiction to conduct the particular investigation. The Sergeant at Arms, therefore, was liable for false arrest and could not assert the issuance of the warrant as a defense. "

In Nixon v Herndon, 273 US 536 (1927) the Court held that state officials would be personally liable in damages for denying plaintiff his right to vote by enforcing a racially discriminatory election law. In Monroe v Pape, 365 US 167 (1961) the Supreme Court held that police officers may be held liable under section 1983 for infringing upon the constitutional rights of others even when their actions are not shown to be willful. In Bivens v Six Unknown Named Agents, 304 US 388 (1971) the Court held that in the absence of a federal statutory remedy for unconstitutional searches, the Constitution itself provides for a damage action against the offending federal officers.

Even the Superintendent of Public Documents and the Public Printer for Congress could not sustain an immunity claim when republishing a libel as the Court in Doe v McMillan, 412 U.S. 306 (1972) reasoned, republishing a libel is not an essential part of the legislative process.

Calling the partial immunity granted to many of these officials “qualified immunity”, the Court extended common law immunity for “reasonable” acts in “good faith”. When lower courts became confused as to whether qualified immunity involved a subjective or objective inquiry, the Court explained in Wood v Strickland , 420 U.S. 328, 95 S. Ct. 992 (1975) that the qualified immunity analysis necessarily contains both objective and subjective elements. The analysis is subjective, said the Court in that the defendant official, to receive protection, must have acted “with a belief that he [was] doing right.” Wood, 420 U.S. at 321. The analysis is objective, the Court reasoned, in that officials could not receive protection where they ignorantly believed their actions to be appropriate when in fact their actions violated “settled” and “indisputable” law.

As citizens and their counsel began to utilize 42 USC § 1983 actions to redress grievances, the Court began to articulate its sense of the statute:

“The purpose of the statute was to deter public officials from using the badge of their authority to violate persons’ constitutional rights and to provide compensation and other relief to victims of constitutional deprivations when that deterrence failed.” Carey v Piphus, 435 US 247, 253 (1978)

In Gomez v Toledo, 446 U.S. 635 (1979) the Court spoke to the concern among plaintiffs that they had an impossible burden to meet by showing in their pleadings that the acts of the defendants were both unreasonable and in bad faith. The Court offered that “Nothing in the language or legislative history of Sec. 1983, however, suggests that in an action brought against a public official..... a plaintiff must allege bad faith in order to state a claim for relief.” Gomez at 640. The Court went on to instruct: “Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed. Rule Civ. Proc. 8© (defendant must plead any “matter constituting an avoidance of affirmative defense”)” Id. The Court went on to quote from Wood v Strickland and instructed:

“The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether “[t]he official himself [is] acting sincerely and with a belief that he is doing right”. Gomez, 641

The Court informed that:

“The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official’s belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law.” Gomez, 641

In City of Newport v Fact Concerts, Inc., 453 US 247.259 (1981) the Court characterized its process of determining the degree of immunity to which a particular official was entitled as a “careful inquiry into considerations of both history and policy.”

The same year City of Newport was decided, the Court faced some of the aftermath of the Nixon administration in Harlow et al v Fitzgerald, 457 U.S. 800. In that case, plaintiff Fitzgerald claimed Bryce Harlow and Alexander Butterfield, two Nixon administration aides, conspired to have him discharged from his position with the Air Force. H.R. Halderman, John Ehrlichman, Ronald Zeigler and Richard Nixon were all heard on the infamous Nixon tapes, discussing Fitzgerald’s demise. In their concurrence Mr. Justice Brennan wrote for himself and Justices Marshall and Blackmun and said:

“I agree with the substantive standard announced by the Court today, imposing liability when a public-official defendant “knew or should have known” of the constitutionally violative effect of his actions.... This standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not “reasonably have been expected” to know what he actually did know.......Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes.” Harlow et al v Fitzgerald, 457 U.S. 800, 820-821 (1981) emphasis in original, citations omitted

The Harlow Court reasoned that qualified or “good faith” immunity is an affirmative defense that must be plead by a defendant official. Gomez v Toledo, 446 U.S. 635 (1980). The Court cited to Wood v Strickland, 420 U.S. 308, 322 (1975) and offered: “Decisions of this Court have established that the “good faith” defense has both an “objective” and a “subjective” aspect. The objective element involves a presumptive knowledge of and respect for “basic unquestioned constitutional rights.” Harlow et al v Fitzgerald, 457 U.S. 800 (1981)

Several years later, the Court took up the case of Billy Irl Glover. Mr. Glover, a pro se litigant, sued Bruce Tower the Douglas County, Oregon Public Defender and a number of others from his prison cell. Billy Irl alleged that Tower and other conspired to secure a conviction in violation of his constitutional rights. The Federal District Court threw his case out, but the Court of Appeals reversed and the Supreme Court granted certiorai. The Court reasoned:

“We do not have a license to establish immunities from Sec. 1983 actions in the interests of what we judge to be sound public policy. It is for Congress to determine whether Sec. 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate.” Tower v Glover, 104 S. Ct. 2820, 2826 (1984)

That being said, the Court reviewed its immunity decisions and the history of the Civil Rights Act of 1871 [also known as the Klu Klux Klan Act]. Quoting from Imbler v Pachtman, 424 US 409 at 421 (1976), the Court noted that § 1983 immunities are “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” If an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court offered that it next considers whether Civil Rights Act history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions. In Tower, the Court concluded: “Using this framework we conclude that public defenders have no immunity from § 1983 liability for intentional misconduct of the type alleged here.”Tower v Glover, 104 S. Ct. 2820, 2825 (1984).

The following year the Court took up more of the Nixon administration backwash in Mitchell v Forsyth, 472 U.S. 511(1985) and reasoned: “The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.” Mitchell at 523.

Two years later, the Federal Court of Appeals for the Ninth Circuit reviewed the Supreme Court’s partial immunity decisions and reasoned: “In spite of the benefits of immunity for certain decision makers, the balance might not be struck in favor of absolute immunity were it not for the presence of safeguards build into the judicial process that tend to reduce the need for private damage action.” Meyers v Contra Costa Cy. Dep’t of Social Servs., 812 F2d 1154, 1158 (9th Cir. 1987). The following year, the Eleventh Circuit took up Goddard v Urrea, 847 F2d 765 (11th Cir. 1988). In Goddard the plaintiff brought a civil suit claiming that the defendants, agents of the Bureau of Alcohol, Tobacco and Firearms, had conducted an unlawful search and seizure of her property. The defendants filed a motion for summary judgment, claiming qualified immunity. The district court denied the motion and the defendants appealed. The Eleventh Circuit held that the denial of summary judgment for qualified immunity was justified because genuine issues of fact remained, which would impact upon a finding of good faith or reasonableness. The same year, the Sixth Circuit rejected a plea to dismiss because of “qualified immunity” and declared it an “affirmative defense” which the defendant had to plead and prove. Duncan v Peck, 844 F2d 1261 (1988).

A year after Duncan, the Sixth Circuit took up the claims of James and Grace Achterhof. Their cause of action against social worker Anthony Selvaggio and his Department of Social Services had been dismissed when the District Court ruled that the defendants were entitled to “absolute immunity” for their actions in “opening a case” on the Achterhof’s children and placing Mr. Achterhof’s name on a central registry of child abusers even after their investigation found no credible evidence of abuse. The Sixth Circuit reversed reasoning that because of the sweep of absolute immunity, and reluctance of the Supreme Court to extend “absolute” prosecutorial or judicial immunity to anyone but prosecutors and judges, it was inappropriate to extent a prosecutor’s or judge’s immunity to investigative social workers. Achterhof v Selvaggio, 886 F2d 826, 829 (6th Cir. 1989).

The Court made explicit its wish to circumscribe immunity claims recently in Antoine v Beyers & Anderson, Inc. ___ U.S.___, ___ n4, 113 S. Ct. 2167, 2170 N4 (1993), saying that the courts have “been quite sparing in [their] recognition of absolute immunity and have refused to extend it any further than its justification would warrant”.

LEGISLATIVE & QUASI-GOVERNMENTAL OFFICIALS and IMMUNITY

Aside from the historical interest the Nixon tapes provide, Harlow et al v Fitzgerald, 457 U.S. 800 (1981) found the United States Supreme Court ruling that public policy does not require a blanket recognition of “absolute” immunity for Presidential aides. Examining the plea of Bryce Harlow and Alexander Butterfield for “absolute immunity” the Harlow Court reasoned:

“In order to establish entitlement to absolute immunity a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted.” Harlow, 457 U.S. 800, 812-813 (1981)

The Court went on to suggest that the “special functions” rationale Harlow and Butterfield put forth did not warrant a blanket recognition of “absolute” immunity for all presidential aides in the performance of their duties. The Court reasoned that this conclusion follows from their decision in Butz, which established that an executive official’s claim to “absolute” immunity must be justified by reference to the public interest in what they termed “the special functions of his office, not the mere fact of high station.” Harlow et al v Fitzgerald, 457 U.S. 800, 812 (1981). The Court examined its “subjective” and “objective” proofs for immunity articulated in Wood v Strickland, 420 U.S. 308, 322 as a “subjective” aspect of qualified or “good faith” immunity--whereby such immunity is not available if the official asserting the defense “took the action with the malicious intention to cause a deprivation of constitutional rights or other injury,” and determined that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow et al v Fitzgerald, 457 U.S. 800, 818 (1981).

In Harlow, the Court made clear that “a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. 819. The Court instructed the judiciary that:

“On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. .....If the law was clearly established, the immunity defense ordinarily should fail.” Harlow et al v Fitzgerald, 457 U.S. 800, 818 (1981)

The Nixon administration also gave us Mitchell v Forsyth, 472 U.S. 511 (1985) In Mitchell, Attorney General John Mitchell ordered Haverford College physics professor William Davidon’s telephone illegally taped. When Keith Forsyth, a party to several “innocuous” telephone conversations on professor Davidon’s line discovered the tap, he filed suit. Mitchell, 472 U.S. 51, 513 Mitchell and a legion of Deputy Solicitor Generals and Acting Assistant Attorney Generals claimed “absolute” immunity. The Court noted the findings of the District Court that:

“Mitchell and the Justice Department, the court suggested, had chosen to “gamble” on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences.”
Mitchell v Forsyth, 472 U.S. 511, 517 (1985)

In the Court’s analysis, Mr. Justice White informed that merely Mitchell’s status as a Cabinet officer “is not in itself sufficient to invest him with absolute immunity...” Mitchell 472 U.S. at 521. The Court went on to succinctly conclude:

“the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.” Mitchell v Forsyth, 472 U.S. 511, 520 (1985)

The claims of Legislators to “absolute” immunity have not done better. In Gravel v United States, 408 U.S. 606 (1972) the Court held that neither absolute nor qualified immunity can be relied upon to protect interference with the criminal process or grand jury investigations. In Doe v McMillan, 412 U.S. 306 (1973) the Court held that:

“for purposes of the Judaically fashioned doctrine of immunity, the Public Printer and Superintendent of Documents are no more free from suit in [republishing a libel], than would be a legislative aide who made copies of material at issue and distributed them to the public at the direction of his superiors.”
Doe v McMillan, 412 U.S. 306, 324 (1973)

Considering the Speech and Debate Clause and its previous decisions with respect to legislators, the Court in Hutchinson v Proxmire, 443 U.S. 111 (1978) cited to United States v Johnson, 383 U.S. 169 (1969) and offered:

“...In its narrowest scope , the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy others with impunity, but that was the conscious choice of the Framers.’ 408 U.S., at 516.....We are unable to discern any “conscious choice” to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media.” Hutchinson v Proxmire, 443 U.S. 111, 131-132

In Chastain v Sundquist, 833 F2d 311 (D.C. Cir 1987) Tennessee Congressman Don Sundquist libeled attorney Wayne Chastain in a letter to Attorney General William French Smith. When Chastain filed suit, Sundquist claimed immunity. In a lengthily opinion, Judge Buckley of the D.C. Circuit Court cited to Barr v Matteo, 360 U.S. 564 (1959) for the proposition that our courts have recognized “an individual’s legitimate right to seek redress for damage caused by oppressive or malicious action on the part of officials of the Federal Government.” Sundquist, 833 F2d 311, 322. In November, 1987, the Chastain court held Sundquist accountable for his liable and the Supreme Court denied certiorari.

PROSECUTORS, LAW ENFORCEMENT and IMMUNITY CLAIMS:

Even though Imbler v Pachtman, 424 US 409 (1976) allowed some immunity for prosecutors, in Hampton v City of Chicago, 484 F2d 602 (7th Cir. 1973), cert. denied, 415 US 917 (1974) the federal court made it quite clear that prosecutors engaged in planning raids for the purposes of committing murder were not covered by immunity. In Robichaud v Ronan, 35l F2d 533 (9th Cir. 1965) and Lewis v Brautigam, 227 F2d 124 (5th Cir. 1955) the federal court held that prosecutors, sheriffs and police officers who coerce confessions from subjects, were not covered by immunity for their tortious conduct. Further, in Holton v Boman, 493 F2d 1176 (7th Cir. 1974) and Madison v Purdy, 410 F2d 99 (5th Cir. 1969) the federal courts held that when prosecutors entered into a conspiracy, they could be held liable in tort. Indeed, in Martin v Merola, 532 F2d 191 (2d Cir. 1976) the federal court insisted that when prosecutors defamed defendants in press conferences, immunity does not protect them from liability in tort.

In Robison v Via, 821 F2d 913 (2nd Cir. 1987) The Federal Court for the Second Circuit took up the immunity claims of Assistant State’s Attorney Susan Via and Vermont State Trooper Harold Harrison. It seems Via and Harrison forcibly took Connie Robison’s children from her and did so in a way that violated a number of Vermont’s statutes. When Connie Robison sued, Via and Harrison claimed immunity. The Second Circuit reasoned:

“We see no basis for accepting the contentions of Via and Harrison that in seizing the children they were performing a prosecutorial function. Via’s presence at the seizure of the children did not transform what was fundamentally a police function into one that was prosecutorial.”
Robison v Via, 821 F2d 913, 918 (2nd Cir. 1987)

At the same time Robison v Via was winding its way through the Second Circuit, Cathy Burns case against State Prosecutor Rick Reed was progressing through the Seventh Circuit. That court held that Prosecutor Reed was “absolutely immune” from suit over his advice to the police. 894 F2d 949. The Supreme Court granted certiorari and went on to reverse. Writing for the Court, Justice White noted the research of the Federal Court of Appeals with respect to prosecutor’s advice to police and reasoned:

“We do not believe, however, that advising the police in the investigative phase of a criminal case is so “intimately associated with the judicial phase of the criminal process,” Imbler, 424 U.S., at 430, 96 S.Ct., at 995, that it qualifies for absolute immunity. Absent a tradition of immunity comparable to the common- law immunity from malicious prosecution, which formed the basis for the decision in Imbler, we have not been inclined to extend absolute immunity from liability under Sec. 1983.” Burns v Reed, 111 S. Ct. 1934, 1943 (1991)

The Court went on to reason that “absolute” immunity was designed to free the judicial process from the harassment and intimidation associated with litigation. Forrester, 484 U.S., at 226, 108 S.Ct., at 543. The Court held that “absolute” prosecutorial immunity, obtains only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.Reed, 111 S. Ct. 1934, 1943.

It is noteworthy that in researching the 1871 Klu Klux Klan Act and its progeny, Justice Scalia with whom Justice Blackmun joined, offered that: “Respondent has not cited, and I have not found, a single pre-1871 case in which a prosecutor was granted absolute immunity for any of the functions contested here.”
Reed, 111 S. Ct. 1934, 1946.

In Buckley v Fitzsimmons , 509 U.S. ___, 125 L Ed 209, 113 S Ct 2606 (1993) Stephen Buckley filed suit against DuPage County, Illinois Prosecutor Michael Fitzsimmons and others involved in the fabrication of evidence used to convict Buckley of murder. The District Court for the Northern District of Illinois, held that the prosecutors were entitled to “absolute” immunity with respect to the fabrication of evidence. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, holding that the prosecutors had “absolute” immunity. The Appeals Court concluded that the fabricated evidence could only cause injury at the “judicial phase”, and therefore, the prosecutors were entitled to, “absolute” prosecutorial immunity. The Appeals Court reasoned that conversations between the prosecutors and an evidence expert could not be the foundation of liability because the out-of-court evaluation of evidence from an expert witness causes no injury. Thus, “[p]rosecutors whose out-of-court acts cause injury only to the extent a case proceeds will be brought to heel adequately by the court,” 919 F2d at 1243-44. The Appeals Court went on to reason that the defendant who has suffered the injury must rely on the court to protect his interests. Buckley appealed the decision to the United States Supreme Court and the Court granted his petition for certiorari, vacated the judgment, and remanded the case for further proceedings. Buckley, 113 S Ct at 2612

On remand, the Court of Appeals for the Seventh Circuit reaffirmed its decision. Buckley appealed again and argued that “absolute” prosecutorial immunity only applies to the act of prosecution and to acts that occur inside the courtroom during the presentation of the State’s case. The Supreme Court again granted certiorari and reversed the court of appeals decision, holding that the prosecutors were not entitled to “absolute” immunity. Buckley, 113 S Ct at 2612 Buckley’s suit for damages from the prosecutor for the falsification of evidence went forward.

Law Enforcement officials and their townships have had less luck with their claims of immunity than prosecutors. In Monroe v Pape, 365 U.S. 167, 81 S Ct 473 (1960) the Supreme Court took up the complaint of James Monroe and his family seeking damages from the Chicago Police and the City of Chicago for an early morning raid wherein the police:

“...broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers....Mr. Monroe was then taken to the police station and detained on ‘open’ charges for 10 hours, while he was interrogated about a two-day-old murder.....” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 474 (1960)

In a fifty page opinion, the Court reviewed the history of the 1871 Klu Klux Klan Act and reasoned:

“It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 480 (1960)

Although the Court held that the City of Chicago was not liable on a respondeat superior theory [later expressly overturned in Monell et al v Dept Soc Serv City of New York, 436 U.S. 658 (1977)], the Court specifically held that the police officers were not entitled to immunity and instructed that suits brought with these civil rights claims : “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pape, 365 U.S. 167, 81 S Ct 473, 484.

This claim and the Monroe as well as the Monell decisions make the conduct of Los Angeles Police Detective Mark Furman eerily reminiscent of the early morning raid on the Monroe’s in Chicago. It seems that drug counselor Albert Morales and his brother Bennie reported to the Internal Affairs office of the Los Angeles Police that Mark Furman and his fellow officers carried on just as the Chicago Police had in Monroe, in the early morning hours of November 18, 1978. The Morales brothers were awakened in their Pico Gardens apartment by Furman and his cohorts, beaten, made to stand naked and literally thrown down metal staircases. The Morales’ and a public service agency attorney complained in 1978. Nothing was done. [Los Angeles Times, September 11th, 1995] Pursuant to Monroe and Monell, not only would Mark Furman be subject to liability, but as in the Rodney King debacle, so would the City of Los Angeles.

Prison Guards have little luck with immunity claims. In Procunier v Navarette, 434 U.S. 555, 98 S Ct 855 (1978) the Court turned aside prison official’s claims to “absolute” immunity. In Hughes v Savell, 902 F2d 376 (5th Cir 1990), the Federal Court of Appeals ruled that the state and its prison officials must protect prisoners from other prisoners. In Moye v Selsky, 826 F. Supp. 712 (1993) the Federal District Court in New York, invoked the Second Circuit’s decision in Weg v Macchiarola, 995 F2d 15 (2nd cir. 1993) as well as Cleavinger v Saxner, 474 U.S. 193, 106 S Ct 496 (1985) and held that a prison hearing officer and discipline director were not immune from 42 USC § 1983 actions to redress grievances. And in Farmer v Brennan, ___U.S. ___, 114 S Ct 1970 (1994) the Supreme Court held that prison officials were subject to liability in tort.

GUARDIANS - APPOINTED COUNSEL and IMMUNITY CLAIMS:

Courts confronting the dereliction of duty in guardians ad litem have said:

"Role of attorney appointed for child in custody dispute is to advocate child's best interest, not the child's wishes." In re Marriage of Rolfe, 699 P.2d 79, 216 Mont.39 (l985)

"It is guardian ad litem's duty to stand in shoes of child and weigh factors as child would if his judgment were mature and he was not of tender years." J.W.F. v. Schoolcraft, 763 P.2d 1217 (Utah, l987)

"Role of the guardian ad litem in custody disputes is to zealously represent the child ..." Carter v. Brodrick, 816 P.2d 202 (Sup. Ct. Alaska l991).

"In child custody matter, guardian ad litem does not represent child per se; rather, guardian ad litem's statutory duty is to represent concept of child's best interest." Wiederholt v. Fischer, 485 N.W.2d 442, 169 Wis.2d 524 (l992)

When guardians ad litem do not meet these minimal standards, they are subject to liability. In Collins v Tabet, 111 N.M. 391, 806 P 2d 40 (N.M. 1990), the New Mexico Supreme Court in cited to a previous case and offered:

"See also Bonds, 64 N.M. at 345, 328 P.2d at 599:

[A]ppointment as guardian ad litem of a minor is a position of the highest trust and no attorney should ever blindly enter an appearance as guardian ad litem and allow a matter to proceed without a full and complete investigation into the facts and law so that his clients will be fairly and competently represented and their rights fully and adequately protected and preserved........The proposition in Bonds that a guardian ad litem occupies a position of the highest trust suggests that he or she is a fiduciary. Judge Donnelly, in expressing his views on the question certified to us, analogized the position of the guardian ad litem to that of a general guardian or conservator...Fiduciaries, of course, are subject to liability to their wards for harm resulting from ordinary negligence in the discharge of their fiduciary duties; if anything, they are charged with a higher standard of care than are persons who do not owe fiduciary duties. See Pino v Budwine, 90 N.M. 750, 568 P.2d 586 (l977); Estate of Guerra v New Mexico Human Services Dep't, 96 N.M. 608, 633 P.2d 7l6 (Ct.App. l98l). (Emphasis added)

These principles are not new. In Downs v Sawtelle, 574 F 2d 1 (1st Cir. 1978) the Federal Court of Appeals ruled that immunity was inappropriate for guardians because private parties are not confronted with the pressures of office, the decision making or the threat of liability facing, governors and highest level public officials. Although policy considerations might support some form of immunity for private citizens, the Sawtelle court noted that factors of policy and fairness might suggest some immunity for private parties acting in concert with state officials. The Sawtelle court answered that these concerns were resolved by Congress in favor of citizens who claim a deprivation of constitutional rights. Downs, 574 F 2d 1, 5.

In Reese v Danforth, 486 Pa. 479, 406 A2d 735 (1979) the Pennsylvania Supreme Court took up the case of a Public Defendant claiming immunity and stated:

“. . . we hold that once the appointment of a public defender in a given case is made, his public or state function ceases and thereafter he functions purely as a private attorney concerned with servicing his client. His professional relationship with his client takes on all the obligations and protections attendant upon a private attorney-client relationship except one: the public pays his fee. In this respect, he is like the physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct. E.g., Jackson v Kelly, 557 F2d 735 (10th Cir. 1977); U.S. ex rel. Fear v Rundle, 506 F2d 331 (3d Cir. 1974).” Reese v Danforth, 486 Pa. 479, 486, 406 A2d 735, 737 (1979)

In 1979, the Supreme Court took up the case of Ferri v Ackerman, 444 U.S. l93, l00 S.Ct. 402 (l979) wherein an appointed attorney claimed “judicial immunity” for his representation of a criminal defendant. The Court suggested that there is a marked difference between the nature of an appointed attorney’s work and those of other officers of the court. As public servants, the Court reasoned, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. But, the Court made a strong distinction:

“In contrast, the primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation. The fear that an unsuccessful defense of a criminal charge will lead to a malpractice claim does not conflict with performance of that function. If anything, it provides the same incentive for appointed and retained counsel to perform that function competently. The primary rationale for granting immunity to judges, prosecutors, and other public officers does not apply to defense counsel sued for malpractice by his own client." Ferri v Ackerman, 444 U.S. l93, 204, l00 S.Ct. 402, 409 (l979). (Emphasis added).

The Michigan Court of Appeals took up a similar case in 1980. In Donigan v Finn, 95 Mich App 28, 290 NW2d 80, (1980) In Donigan an appointed counsel asked for immunity from suit for malpractice. The Michigan court recited:

“Our issue of first impression is whether appointed attorneys for indigent criminal defendants are immune from malpractice liability in a state action in connection with the defense of an accused indigent. We conclude that they are not immune.” Donigan v Finn, 95 Mich App 28, 290 NW2d 80, 81 (1980)

In 1984 the United States Supreme Court again took up the claims of an appointed attorney that he should be immune from suit for malpractice. In Tower v Glover, 467 U.S. 914, 104 S Ct 2820 (1984) the Court recognized the assertion of the public defender that he had responsibilities similar to those of the judge and prosecutor and should enjoy similar immunities in order, not to impair the State’s attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel.

Glover, 104 S. Ct. 2820, 2822. Writing for the Court Madam Justice O’Connor reasoned:

“State public defenders are not immune from liability under Sec 1983 for intentional misconduct by virtue of alleged conspiratorial action with the state officials that deprives their clients of federal rights. For purposes of Sec. 1983, immunities are predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Glover, 104 S. Ct. 2820, 2821-22 (1984)

The Court went on to hold:

“We conclude that state public defenders are not immune from liability under Sec. 1983 for intentional misconduct, “under color of” state law, byvirtue off alleged conspiratorial action with state officials that deprives their clients of federal rights.” Tower v Glover, 104 S. Ct. 2820, 2826 (1984)

Following Ferri v Ackerman and Tower v Glover, state courts took up the claims of guardians and appointed counsel for “absolute immunity”, “judicial immunity” and “quasi-judicial immunity” and routinely held that granting these attorneys immunity would encourage slip-shod work. See: Eli Bon E.I. Bon Ghananee v Black, 504 A2d 281, 284 (1986); Williams v Office of the Public Defender County of Lehigh, 586 A2d 924, 927 (1990); and Dziubak v Mott, 486 Nw2d 837 (Minn App 1992): “Unlike judges or prosecutors, the duty of the public defender is not to the public at large but rather to the individual client.” 486 Nw2d 837, 840.

Curiously, the Court’s holding in Ferri v Ackerman, 444 U.S. l93, l00 S.Ct. 402, (l979) has been made part of federal legislative efforts. Ferri came up in the 96th Congress in Senate bill 2617 and died in committee. It came up again in the 97th Congress in House bill 3060 and died in committee. Again Ferri was the subject of legislative efforts in the 98th Congress in Senate bill 829, Senate bill 2420, House bill 4307 and House bill 3233. Each time it died in committee or was dropped from override legislation. No immunity legislation for court appointed counsel be they guardians, criminal/defense or appellate counsel has passed.

SOCIAL WORKERS and IMMUNITY CLAIMS:

Perhaps the most outrageous acts for which the actors claim immunity occurs in child abuse proceedings. After the passage of the Mondale Acts requiring mandatory reporting of suspected child abuse, the number of child seizures soared in America. While it is certainly the case that children must be protected from abuse and neglect, doing so at the expense of constitutional rights is most often an untenable argument. With the exception of a few aberrant decisions, most state and federal courts have allowed only partial or “good faith” immunity in child seizure cases. As the Supreme Court cautioned in Malley v Briggs, 475 U.S. 335, 341, 106 S Ct 1092 (1986):

“[a]s qualified immunity has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” 475 U.S. 335, 341.

A few plain incompetents and knowing violators will illustrate.

Social Workers Ronald Borel and Janenne Trahan allegedly filed a false verified statement with the court to facilitate their removal of Karen Austin’s two daughters. When the girls were returned, Ms. Austin filed a 42 USC § 1983 action. The Federal District Court dismissed Ms. Austin’s action on immunity grounds, but the U. S. Court of Appeals for the Fifth Circuit reasoned:

“We note that Louisiana law authorizes police officers, as well as child abuse workers, to file verified complaints. A police officer would clearly not be entitled to absolute immunity in filing such a complaint. The functional approach to immunity requires that officials performing identical functions be treated alike.” Austin v Borel, 830 F2d 1356, 1362-63 (1987)

The Court went on to hold that these caseworkers were not entitled to the “absolute” immunity they claimed after the filing of the false verified complaint. 830 F2d 1356, 1363.

The Tenth Circuit in Snell v Tunnell, 920 F 2d 673, 687 (1990) declined to confer immunity on two social workers who decided to continue an investigation of child abuse despite the fact that the district attorney and the police had investigated and refused to be involved any longer. The court held the social workers liable when despite the insistence of the police, the workers removed the plaintiff’s child from his home.

The Ninth Circuit applied the balancing test of Mathews v Eldridge, 424 U.S. 319, 96 S Ct 893 (1976) and the reasoning in Cleveland Board of Education v Loudermill, 470 U.S. 532, 105 S Ct 1487 (1985) in the 1990 case of Chalkboard Inc. In Chalkboard, Inc. v Brandt, 902 F2d 1375 (9th Cir. 1980) social workers from the Arizona Department of Health Services and the Department of Economic Security summarily pulled Chalkboard Inc’s. Day Care license when a parent complained of child abuse in the day care facility. Without giving Chalkboard notice, a hearing or an opportunity to be heard, the social workers essentially ruined the center on charges that were never substantiated. The Court opined:

“A balancing of these factors, as they were applied in Matthews and, subsequently, in Loudermill, leads us to conclude that the administrative procedures followed by defendants in this case could not reasonably have been believed to meet constitutional requirements.” Chalkboard, Inc., 902 F2d 1375, 1380-81

Writing for the court, Judge Canby reasoned that the state legislature made clear provisions for child abuse claims and licensees. He noted that: “In ignoring these procedures and summarily suspending Chalkboard’s licence without notice or an opportunity to respond, reasonable officials would have known that their actions were not lawful.” Chalkboard, Inc. 902 F2d 1375, 1382. Judge Canby and the court made clear that “the risk of error is considerable when such determinations are made after hearing only one side.” 902 F2d 1375, 1381. The court held that as the defendant social workers chose not to follow the state mandated procedures, no immunity pertained to their acts. 902 F2d 1375, 1382.

In Millspaugh v County Department of Public Welfare of Wabash County, 937 F2d 1172 (7th Cir. 1991) the Seventh Circuit Court of Appeals wrestled with the conduct of Indiana social worker Manetta Tucker. In this case, Ms. Tucker determined that Lois Millspaugh and Tina Dyson’s religious group, “Faith Ministries” and their practice of giving away all their possessions made the womens’ four daughters “children in need of services”. Tucker petitioned the court to remove the children while withholding from the court the report of a physician and a clinical psychologist who’d examined the girls and found them to be fine. Tucker also withheld that Lois Millspaugh’s daughter Jean was her high school valedictorian.

Writing for the court, Judge Easterbrook noted that bowing to the social workers’ claims on immunity “may embolden social workers to pursue their private agendas--as the mothers say Tucker did, using her position to throttle unorthodox religious practices.”Millspaugh, 937 F2d 1172, 1177 (7th Cir. 1991). The court held that:

“absolute immunity does not protect the gathering of evidence, even though the acts of presenting that evidence to (or withholding it from) the court receive greater protection. Social workers must settle for qualified immunity when taking initial custody of children.” Millspaugh, 937 F2d 1172, 1176 (7th Cir. 1991)

The merit less claims to immunity of state social workers stand out in bold relief in the tortured Babcock v State of Washington, 116 Wash 2d 596, 809 P 2d 143 (Wash. 1991). In this case, Rudolph Babcock and his wife Ann were married in 1970. Ann Babcock already had two daughters from a previous marriage. Rudolph and Ann had two daughters before Ann committed suicide shortly after the family moved to Louisiana in 1970. By 1981, Rudolph was unable to manage the four girls and the state of Louisiana determined that the children were in need of care. After a hearing, the Louisiana court placed the girls with Rudolph’s parents, Elizabeth and Willis Babcock of Richland, Washington. The supervision of the case was transferred to Washington on interstate compact. One Lee Michael, the husband of the deceased Ann Babcock’s sister (and thus the children’s maternal uncle by marriage) began a campaign to have the girls placed in his home.

Working with Washington State social workers on the one hand and undercutting the elderly Babcocks on the other, Michael persuaded the Washington Department of Health and Social Services to allow Aryn, Rudolph’s fourteen year old adopted daughter, to come and live in the Michael home. A DSHS attorney obtained the Louisiana court’s relinquishment of jurisdiction and DSHS social workers began to work with Michael to place all of Rudolph’s children in the Michael home. What the social workers left out of their “investigation” of Lee Michael, what they left out of their “home study” of Lee Michael was that Mr. Michael “had a criminal record dating back to 1967 which included charges of forcible rape, sexual assault, and attempted rape.” Babcock v State, 809 P 2d 143, 146.

As Michael’s undermining of the elderly Babcock’s became apparent, Rudolph fled the state with his two biological daughters. The social workers from the DSHS presumed upon the courts to issue an arrest warrant for Rudolph and forced the two remaining Babcock girls to return. Shortly thereafter, the DSHS workers and the court placed the remaining girls with Mr. Michael. Lee Michael assaulted and raped all four of the girls and was subsequently convicted and sentenced to fifty five years in prison. When Rudolph, the girls and the grandparents filed suit, the social workers and the DSHS claimed immunity.

In a tortured series of twists and turns through the legal system, the Washington Supreme Court threw the case out but then agreed to re-hear it as the DSHS and social workers caused the Court to rely on false information. In a lengthy opinion, the Court en banc noted that the DSHS social workers never investigated Lee Michael; placed the children without court orders and then got them later; placed the children without giving their father notice or an opportunity to be heard, and then did it again, and again. The social workers sought “absolute prosecutorial immunity” but the court reasoned “DSHS cites no case where this court has extended prosecutorial or judicial immunity to anyone but prosecutors and judges. Judges and prosecutors in this state are usually elected and highly visible officials.” Babcock v State, 809 P2d 143, 149; and went on to offer “The gravamen of this complaint is negligent investigation. Even prosecutors cannot claim unqualified immunity for performing investigatory functions under 42 U.S.C. Sec. 1983.” Babcock v State, 809 P2d 143, 151.

In an exhaustive review of their previous mistakes in “Babcock 1" as well as the underpinnings of immunity claims, the court went on to note:

“The Legislature has already chosen to deny caseworkers absolute immunity. In addition, binding state precedent and federal precedent under 42 U.S.C. Sec. 1983 show that the common law does not support absolute immunity from tort liability for negligent foster care investigation and placement in this case.” Babcock v State, 809 P2d 143, 149.

Writing for the court, Justice Utter noted:

“Absolute Immunity shields the recipient from liability for willful misconduct as well as negligence. A caseworker cloaked in absolute immunity could deliberately arrange a foster care placement with a known rapist in order to facilitate the sexual abuse of a child and escape tort liability. This should not be the law.” Babcock v State, 809 P2d 143, 149.

Finally, the court noted: “State precedent and legislative policy compel us to reject the caseworkers’ claim to absolute immunity. The precedent of intermediate and lower federal courts under 42 U.S.C. Sec. 1983 supports the same result.” 809 P2d 143, 150. And the court held that the acts of the DSHS and its social workers were not entitled to any type of immunity at all: “Legislative policy requires us to hold that DSHS cannot claim the qualified immunity of its caseworkers as does the majority of precedent on the subject.”, 809 P2d 143, 155.

PRIVATE PARTY IMMUNITY CLAIMS:

Private persons acting with a colorable claim under state law, or acting in concert with law enforcement officials cannot claim immunity under 42 USC § 1983. Adickes v S. H. Kress & Co., 398 U. S. 144, 152 (1970) may be seen as the origin of the “joint participation” doctrine advanced some years later in Lugar v Edmondson Oil Co, Inc., 457 U. S. 922 (1982). This doctrine received further refinement in Dennis v Sparks, 449 U.S. 24 (1986) where the Court sustained plaintiffs cause on the theory that private party conspirators to an injunction, acted under color of state law and in joint participation with state authorities.

In Howerton v Garcia, 708 F 2d 380 (9th Cir. 1983) the Federal Court of Appeals for the Ninth Circuit ruled that landlords who evicted a plaintiff without proper eviction procedures could make no legitimate claim to immunity:

“...there is no good faith immunity under section 1983 for private parties who act under color of state law to deprive an individual of his or her constitutional rights” 708 F 2d 380, 381.

In F.E. Trotter Inc. V Watkins, 869 F 2d 1312, 1318 (9th Cir. 1989) the Ninth Circuit ruled that there is no legitimate immunity claim for a private contractor’s actions while completing a land survey for the Navy. In Wyatt v Cole, 504 U.S. ___, 118 L. Ed 2d 504, 112 S Ct ___ (1992) the Supreme Court expanded its holdings with respect to immunity claims and private parties and ruled that even when relying in good faith, upon state statutes for replevin or garnishment, when the statutes are later declared unconstitutional, no immunity, not even “qualified immunity” may apply to the acts of private persons.

The Supreme Court, lesser Federal and State courts have made it quite clear that immunity must be granted very sparingly. Indeed, in Scheuer v Rhodes, 416 US 232 (1974) the Supreme Court turned aside arguments for immunity as it applied to governors. In Wood v Strickland, 420 US 308 (1975) the Supreme Court refused to give immunity to members of school boards, and in Hazo v Geltz, 537 F2d 747 (3d Cir. 1976) the federal court insisted that court personnel performing many of their functions were entitled to only "good faith immunity". In recent years, the court has refused to expand the concept of immunity to prison directors, Procunier v Navarette, 434 US 555 (1978) and to cabinet officers as well as their principle subordinates Butz v Economou, 98 S.Ct. 2894 (1978).

Clearly, “immunity” is on the wane.

In the oft-cited Monroe v Pape 365 US 167 (1961) the Court said that actions undertaken by those who would claim immunity:

"Should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 US at 187, 81 S Ct, 484 (1961).

C. BULLOCK V HUSTER - AN EXAMPLE OF IMMUNITY BROKEN

Bullock v Huster, 209 Mich App 551, ___ NW2d ___ (April 1995) is an intentional tort, negligence and breach of fiduciary duty action. The minor Plaintiff, Renee Bullock, is twelve (12) ears of age. This action is brought by her biological father, Ronald L. Bullock, as next friend.

Renee was born to Ronald Bullock and Sharon Pope in May of l983. When the Bullock/Pope relationship broke down, Ms. Pope took the child and left Mr. Bullock's home in the Spring of l985. Contemplating legal action, Mr. Bullock, a General Motors: Cadillac Division engineer, had himself psychologically evaluated by Dr. Louise Centers who found him to show no pathology and to be thoroughly normal.

In July of l986, Protective Services worker Shaffer of the Wayne County Department of Social Services documented child abuse by Sharon Pope on the older child in her home. Mr. Bullock attempted to change the living arrangement of his daughter through the court and pursuant to an Order for independent psychological evaluation by Referee Adele Jones of the Wayne County Circuit Court, Dr. John W. Francisco, completed a detailed psychological evaluation of Ms. Pope, Mr. Bullock and the child in January of l987.

Pursuant to Court order, Dr. Francisco found Mr. Bullock to be normal, but Ms. Pope to show signs of serious psycho-pathology. In a follow-up, Dr. Francisco explained to Referee Adele Jones that Ms. Pope had coached the minor child to allege sex abuse charges against Mr. Bullock. Thereafter, Mr. Bullock underwent a polygraph examination in reference to sex abuse allegations with Marcy Consulting and passed. Ms. Pope took the same polygraph examination with Marcy Consulting in reference to the fabrication of sex abuse allegations and failed.

In a supplemental report in March of l987, court appointed expert, Dr. Francisco, indicated that it was clearly Sharon Pope's idea to make-up the sex abuse allegations. Ms. Pope refused to continue with Dr. Francisco and took the minor child, Renee, to psychiatrist, Jaime Ayala. In his report dated May l987, Dr. Ayala indicates that Sharon Pope shows signs of serious psycho-pathology. In a follow-up September l987 evaluation by psychologist Susan Hamilton, Ms. Pope was said to be "shopping for witnesses who will verify her fraudulent allegations of sex abuse".

False allegations of sex abuse in custodial matters have been described as the cruelest, most reprehensible and damaging allegation one parent can make against the other parent. See: Wakefield and Ungerwager, Accusations of Child Sexual Abuse (Springfield: Charles Thomas, 1990) and Lorandos and Campbell, “Myths and Realities of Sexual Abuse Evaluation and Diagnosis: A Call for Judicial Guidelines”, Issues in Child Abuse Accusations, Volume 7, Number 1, 1995. In a detailed custody hearing in front of Wayne County Michigan, Friend of the Court Referee Jones in October of l987, the Referee recommended that legal and physical custody of the minor child, Renee Bullock should be vested in her biological father, Ronald Bullock. Sharon Pope protested, and the matter was set for trial in front of the Honorable Sharon Tevis Finch.

Mr. Bullock and his daughter, Renee, participated in supervised visitation and counseling with psychiatrist, Jaime Ayala, and in a March l988 report to the Court, Dr. Ayala indicated that Mr. Bullock showed no pathology but that little Renee had been traumatized by her mother, Sharon Pope. Responding to the significant difficulties plead, the Honorable Sharon Tevis Finch appointed a Guardian ad Litem, Defendant-Appellant in this action, Bette Huster, on April 6, l988. It was at this point that little Renee's life became significantly worse.

Immediately after being appointed as the Guardian ad Litem and hearing of the unsubstantiated and fallacious sex abuse allegations, Ms. Huster, upon exiting the courtroom, pointed her finger at Plaintiff/Appellee and said "and you, I'm not even going to talk to you!". Both little Renee's elderly grandparents were present and were shocked at Ms. Huster's orientation. Their shock and chagrin over her thorough lack of professionalism and outrageous bias became deeper and deeper throughout the process of this cause. They filed affidavits of complaint. Nothing was done about it.

Soon after Ms. Huster's appointment, she alienated both court appointed experts, Dr. Francisco and Dr. Ayala. Both of these doctors filed affidavits of complaint about Ms. Huster. Nothing was done about them. Indeed, in his Affidavit Dr. Ayala complains that when he was preparing to come to court and testify about the serious psycho-pathology in Ms. Pope and the trauma to the minor child, Ms. Huster insisted:

"you don't belong here and you're not coming into court. As far as I'm concerned there is nothing you and Dr. Francisco have to say that I'm interested in hearing" ( Attached to Plaintiff’s Appeal Brief as Exhibit C at p 2).

In a May l988 report by Friend of the Court investigators Mazur and Moryc, cited Sharon Pope's abuse and psychiatric problems and recommended custody be vested in Ron Bullock.

In a June l988 letter to the Honorable Sharon Tevis Finch, court appointed psychologist, Dr. Francisco, complained about Ms. Huster's actions in this case. Three weeks later, court appointed psychiatrist Dr. Ayala wrote to the Honorable Sharon Tevis Finch complaining of Ms. Huster's actions as well. Again, nothing was done about the complaints. Somehow, Ms. Huster was able to preclude the bulk of the testimony from experts Ayala and Francisco, and also to keep away from Judge Finch the devastating truth of Ms. Pope's failing the polygraph. Apparently the Court was so hoodwinked by Ms. Huster and her collusion with Sharon Pope, that the Court awarded custody to Sharon in December of l988.

In April of l989, Dr. Ayala wrote to the Court again complaining about Sharon's serious psychiatric problems. Dr. Francisco did the same and reiterated his concern about the "SAID" syndrome (Sexual Allegations in Divorce). Despite Dr. Fransisco's predictions that Ms. Pope would act out inappropriately against the child and flee, the Guardian ad Litem did nothing. In June of l989, Ms. Pope went underground and fled to Georgia with her children, concealed her whereabouts, used a relative's name and social security number to buy a car, open a bank account and obtain a driver’s license. In October of l990, she was convicted in the Wayne County Circuit Court and sentenced to 90 days in jail and 500 hours of community service.

Pursuant to Court order following the kidnaping, Melvin J. Guyer, Ph.D., J.D. of the Department of Psychiatry of the University of Michigan Children's Psychiatric Hospital was commissioned by the Court to conduct an independent psychological evaluation of the parties. Dr. Guyer is a licensed attorney in the State of Michigan and professor in the Department of Psychiatry at the University of Michigan Children's Psychiatric Hospital. Dr. Guyer wrote to the judge in December of l990, complaining about Ms. Pope's visitation refusal and psychiatric difficulties. When she was finally coerced to participate in the court ordered evaluation process, a psychological evaluation was conducted by Dr. Guyer's associate, Dr. Horner, wherein Sharon Pope was seen to have an IQ of 89 with serious psycho-pathology, but Ron Bullock was seen to have an IQ of l08 with normal personality. After completing a significant review of all of the psychological and psychiatric data, Professor Guyer authored a 24 page report describing Sharon Pope as pathological, a liar and someone who has been seriously abusing the minor child. Mr. Bullock was seen to be warm, normal and someone in whom custody should be vested immediately.

After receipt of Dr. Guyer's evaluation, Mr. Bullock was seriously injured in an automobile accident. During his convalescence, Mr. Bullock hired an expert in law and clinical psychology to review the entire file so as to come to some determination as to a plan with respect to the child's best interest. During the process of this detailed review, two additional independent expert evaluators in law and psychiatry were consulted and the opinion of these experts lead Mr. Bullock to petition the Wayne County Circuit Court to remove Guardian ad Litem from the custody case.

On December 22, l992, Judge Sharon Tevis Finch signed an Order appointing Mr. Bullock next friend for the purposes of prosecuting this action. On February 2, l993, Judge Finch declined to remove Guardian Bette Huster from the custody file without evidence of wrong-doing, however, Judge Finch made it clear that this would be her action when evidence of wrong-doing was made known to her. On this very same date, during the process of taking Dr. Guyer's deposition, Guardian ad Litem Huster and attorney for Ms. Pope objected when attorney for the father began to inquire of expert Guyer concerning the misrepresentation of little Renee Bullock's best interest by the Guardian ad Litem. The deposition was halted, and the parties telephoned Judge Finch who directed the parties, in a separate record, that expert witness Guyer (qualified as a psychologist expert and as an expert in law) could testify with respect to hypotheticals concerning representation and misrepresentation of the child by the Guardian ad Litem.

When expert Guyer was asked if it became known to him that a Guardian ad Litem had misrepresented the facts to him or any expert like him in a custody matter, would that constitute adequate representation? The response was clear: "I would regard that as inadequate representation". (Dep. 2/2/93, p 185, l 4-10 ). When specifically asked by counsel if a Guardian ad Litem was discovered to have called an expert witness the evening before the expert was scheduled to testify about the serious psychopathology in a custodial mother and told the expert witness that they would not be allowed to testify, despite having been subpoenaed by the biological father's attorney, "would that make any suggestions to you regarding her representation of the child's best interest?" whereupon expert Guyer offered:

"Well, it would seem ... the adversary process, even in these cases is intended to bring all the information before the court to make well-informed decision. If someone interfered with that process, I think in this instance it would interfere with the Court's ability to determine and assess the best interests of the child. So it would run against the child's best interest rather than furtherance of it." (Dep. 2/2/93, p186, l 12-19 emphasis added).

Continuing in a separate record, expert Guyer was asked if the Guardian ad Litem knew of the report of the court appointed expert describing serious psycho- pathology in the mother, and yet:

"represented to the court that Renee should remain with Sharon Pope as custodial parent, would you consider and regard that as adequate representation?"

Answer: "No, I would not." (Dep. 2/2/93, p 202, l 16-20).

And when asked in a cumulative hypothetical, if a Guardian ad Litem was aware of the reports of serious psycho-pathology in biological mother, reports of physical abuse perpetrated by biological mother, kidnaping by the biological mother, false allegations of sex abuse perpetrated by the biological mother and still recommended, even in spite of the biological father being seen to be normal, warm, caring, that the child be forced to remain with the biological mother, "would you regard that as adequate representation of this child?" The answer was simply "No." (Dep. 2/2/93, p 206).

On February 25, l993, Appellant-Defendant Huster petitioned Judge Finch for Summary Disposition of this cause. At a hearing held March 26, l993, the father as next friend vigorously argued that the Court's do not sit as a super-legislator and that collateral estoppel has no place in this action. The Court agreed. When Appellant filed a Motion for Reconsideration and for Stay of Proceeding Pending Appeal on April 9, l993, the father as next friend opposed the reconsideration as did the Court.

The Michigan Court of Appeals heard oral argument on Huster’s interlocutory appeal in November of 1994. On April 3rd, 1995 they issued their opinion: No immunity for Guardians ad Litem. The decision caused a stir among court appointed guardians in Michigan. In the Michigan Lawyer’s Weekly, these court appointed attorneys whined and complained that now they’d be subject to suit by disgruntled parents. And they’d have no insurance coverage. 9 Mich L. W. 837, April 24, 1995. The response was simple: Bullock is about negligence, not insurance.

Demosthenes Lorandos, Ph.D., J.D.
214 North Fourth Avenue, Ann Arbor, Michigan 48104
Telephone [734] 327-5030 - Facsimile [734] 327-5032

http://www.sado.org/~lorandos/

http://familyrightsassociation.com/bin/white_papers-articles/immunity_broken.htm