Mcle Self-study Article: Working With the Enemy: How Parties Can Protect Themselves Against the Broad Doctrine of Quasi-judicial Immunity

Written by Jonathan H. Park, Esq.* and Zachary Johnson, Esq.*

I. SYNOPSIS

The doctrine of quasi-judicial immunity poses unique legal challenges for parties and other interested persons involved in litigation. Quasi-judicial immunity is a doctrine that extends judicial immunity to persons other than judges if those persons act in a judicial or quasi-judicial capacity.⁰¹But how broad is the doctrine in practice, and to what range of persons can it be applied? The recent case of Holt v. Brock provides insight into answering those questions and also serves as a cautionary tale to litigants, especially in probate court.⁰²

In Holt, the Court of Appeal found that, as a matter of first impression, a real estate broker appointed by the trial court to sell property of litigants was entitled to quasi-judicial immunity. Even though the broker was not performing a function normally performed by a judge, nor engaged in dispute resolution, he was determined to be acting as a limited agent for the court. Thus, the broker was immune from claims of breach of fiduciary duty, breach of contract, negligence, and intentional infliction of emotional distress.⁰³

The ruling in Holt appears to open the door for extending quasi-judicial immunity to a broader range of persons than previously contemplated. The doctrine, as applied in Holt, could provide blanket immunity for various court-appointed persons who hold power in helping to decide the fate of litigants and other interested persons. Because courts do not seem keen on restricting this power, it is more important than ever for opposing parties and their counsel to work together and mutually select persons to help resolve a dispute instead of allowing the court to appoint someone.

This article first analyzes the historical context and precedent of the doctrine of quasi-judicial immunity, then uses Holt to highlight the potential negative effects the doctrine may have in the trust and estates context, and finally offers a practical approach to mitigating the problem.

II. DOCTRINE OF QUASI-JUDICIAL IMMUNITY

Quasi-judicial immunity is an outgrowth of the doctrine of judicial immunity, which, as the name suggests, bars civil actions against judges for acts they perform in the exercise of their judicial functions.⁰⁴ Judicial immunity has its origins in English common law and is also "deeply rooted in California law."⁰⁵ It is also quite expansive, as it encompasses a wide range of conduct: the immunity applies to all judicial determinations, "including those rendered in excess of the judge's jurisdiction, no matter how erroneous or even malicious or corrupt they may be."⁰⁶

Two main policy considerations underscore the doctrine of judicial immunity: (1) the doctrine seeks to protect the finality of judgments by discouraging "inappropriate collateral attack"; and (2) the doctrine is designed to

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promote judicial independence "by insulating judges from vexatious actions prosecuted by disgruntled litigants."⁰⁷

It is difficult to reconcile these policy considerations with the far-reaching scope of the doctrine. Litigants whose rights are affected by the "malicious or corrupt" conduct of judicial officers are not simply "disgruntled." Indeed, they likely have a cause of action given that malicious and corrupt acts often give rise to meritorious lawsuits. Of course, any doctrine will require challenging line-drawing that sometimes leads to unfair results. This doctrine in particular faces the difficulty of attempting to balance the protection of the judiciary and the protection of the rights of parties to litigation that the judiciary is also supposed to protect. On its own terms, the doctrine skews much closer toward the former given that it assumes that the litigant's lawsuit against the judicial official is meritless. The United States Supreme Court has even noted that "[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentive for judges to avoid rendering decisions likely to provoke such suits."⁰⁸

This difficulty also applies to quasi-judicial immunity, which extends judicial immunity "to persons other than judges if those persons act in a judicial or quasi-judicial capacity."⁰⁹As such, the threshold inquiry is determining the meaning of "judicial or quasi-judicial capacity."

A. Courts Have Historically Applied the Doctrine of Quasi-Judicial Immunity

California courts have identified three classes of persons entitled to quasi-judicial immunity.¹⁰ These classes perform different functions on behalf of or in assistance of the court, but these functions are all considered "quasi-judicial."

The first class of persons includes those who perform functions normally performed by a judge or those acting in a judicial capacity.¹¹ Such persons include:

• Court commissioners
• Administrative hearing officers
• Organizations sponsoring an arbitrator
• Prosecutors
• Officials of the State Bar
• Committee of Bar Examiners

To determine whether a person is acting in a judicial capacity, courts do not look at "the name or classification of the person who performed" the act but instead look at "the nature of the duty performed."¹² Because persons in this class are essentially given the responsibilities of a judge, "immunity is necessary for these persons to perform their function independently and impartially."¹³ Thus, the concern is that if these persons were not entitled to quasi-judicial immunity, they would either be encouraged to appease disgruntled litigants or be discouraged from participating in the litigation as a neutral fact-finder. Applying the doctrine to this class of persons is necessary because this class consists of persons who act as stand-ins for judges or at least shoulder some of the responsibilities required for judicial decision-making.

The second class of persons entitled to quasi-judicial immunity includes "persons who function apart from the courts but are engaged in neutral dispute resolution."¹⁴ This class of persons conducts alternative dispute resolution procedures, which courts have noted are "critical to the proper functioning of increasingly congested trial courts."¹⁵Because people in this class help alleviate the burden of resolving disputes, they are entitled to some of the benefits, not the least of which is complete immunity for "quasi-judicial" acts. Such persons include:

• Arbitrators
• Referees
• Volunteers conducting settlement conferences
• Party-selected mediators

For both classes of persons, the threshold question is whether the person's role bears a connection to the judicial process. The connection must be substantial as the persons in question must be performing "functions normally performed by a judge."¹⁶ However, once the court finds that connection, immunity is virtually guaranteed given the wide range of unethical conduct found to be subject to immunity.¹⁷ Accordingly, the analysis of whether quasi-judicial immunity applies hinges on the type of role the person seeking immunity is performing rather than the means the person employs to perform that role. An exception to this general rule applies if the means is in no way conducive toward performing a judicial role, such as an intentional tort involving a physical act.¹⁸

This analysis inherently excludes any examination of the person's performance. To some extent, courts may not be situated to resolve whether someone performed their quasi-judicial role well or poorly because it could be argued that such an inquiry would be too subjective. However, courts do have articulable standards to decide whether certain court-appointed persons, including personal representatives and trustees have breached their fiduciary duties.¹⁹ Indeed, courts are well-equipped to decide whether certain conduct is lawful and whether it bears any connection to the judicial process. In other words, it seems like when someone's conduct has a nexus to the judicial process, courts are less

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inclined to get involved with evaluating that conduct on the merits even if they are able to do so.

B. How Courts Apply the Doctrine in the Realm of Trusts and Estates

The third class of persons entitled to judicial immunity is often found in the realm of probate and family law litigation. Courts have previously held that the following persons in this class are entitled to quasi-judicial immunity:

• Mediators
• Guardians ad litem
• Therapists
• Receivers
• Probate court investigators
• Custody evaluators
• Bankruptcy trustees
• Probation officers
• Social workers
• Psychiatrists

This class of persons is distinct from the first two because it includes people who are not the functional equivalent of judicial officers, but instead people tasked with assisting the court in making judicial determinations. Problems can arise when courts apply the doctrine to this class, because the people of which it is comprised are not tasked with making judicial determinations and thus, strictly speaking, they are not performing a judicial or quasi-judicial function. However, public policy rationales that underscore the doctrine are likely still applicable: if immunity is warranted for the performance of judicial or quasi-judicial functions, it should also be warranted for the acts necessary for such performance. Additionally, immunity will still be an effective tool to encourage people to perform these necessary roles.

On the other hand, the problems with the doctrine generally are exacerbated when applied in the context of trusts and estates litigation. These problems arise especially in the probate context because of the complexity and sheer amount of interests the court must take into account to resolve disputes: the parties, heirs, beneficiaries, professional fiduciaries, decedents, spouses, and unborn and unascertained persons. Given that...