Paige K.B. by Peterson v. Molepske

Page 289

580 N.W.2d 289

219 Wis.2d 418

PAIGE K.B. and Kaitlin I.B., minors by their Guardian ad Litem, Mark A. PETERSON, Plaintiffs-Appellants-Petitioners Lauralie H.B., Plaintiff, v. Louis J. MOLEPSKE, Defendant Dennis J. Massoglia and National Union Fire Insurance Company of Pittsburgh, Defendants-Respondents.

No. 96-2620.

Supreme Court of Wisconsin.

Argued April 29, 1998.

Decided June 26, 1998.

For the plaintiffs-appellants-petitioners there were briefs by Mark A. Peterson, John F. Maloney, Robert K. Bultman and McNally, Maloney & Peterson, S.C., Milwaukee and oral argument by Mark A. Peterson.

For the defendants-respondents there was a brief by Charles H. Bohl, John P. Spector and Whyte Hirschboeck Dudek, S.C., Milwaukee and oral argument by Charles H. Bohl.

Amicus curiae brief was filed by James A. Walrath and James M. Brennan, Milwaukee for the Legal Aid Society of Milwaukee, Inc.

Amicus curiae brief was filed by Mark K. Thomsen and Cannon & Dunphy, S.C., Brookfield for the Wisconsin Academy of Trial Lawyers.

Amicus curiae brief was filed by Gregg Herman, Matthew J. Price and Loeb & Herman, S.C.; Peggy L. Podell, and Podell & Podell, all of Milwaukee for the Family Law Section of the State Bar of Wisconsin.

¶1 DONALD W. STEINMETZ, Justice

The sole issue in this case is whether an attorney-guardian ad litem (GAL) appointed by the circuit court pursuant to Wis. Stat. § 767.045 (1993-94) to represent the best interests of a child in a custody dispute is entitled to absolute quasi-judicial immunity for the negligent performance of his or her duties. Both the circuit court and the court of appeals recognized such absolute quasi-judicial immunity.

¶2 This case is before the court on petition for review of a published opinion of the court of appeals, Paige K.B. v. Molepske, 211 Wis.2d 572, 565 N.W.2d 549 (Ct.App.1997), affirming an order of the Circuit Court for Portage County, Lewis W. Charles, Judge. The circuit court granted summary judgment to the defendant, Attorney Dennis J. Massoglia, and his liability insurance carrier, concluding that, as a GAL appointed by the court pursuant to Wis. Stat. § 767.045, ¹ he enjoyed absolute quasi-judicial immunity from liability in a negligence action arising out of his professional services. The court of appeals unanimously affirmed. We granted the petition for review filed by the plaintiffs, Paige K.B. and Kaitlin I.B., and now affirm the decision of the court of appeals.

¶3 The relevant facts of this case, as represented by the court of appeals, are simple and undisputed. The plaintiffs' parents, Steven J.B. (Steven) and Lauralie H.B. (Lauralie), were married in 1987. In 1990, Steven filed a petition for divorce. Pursuant to Wis. Stat. § 767.045(1)(a), the circuit court appointed Massoglia as GAL to represent the best interests of the children during the divorce and custody proceedings between Steven and Lauralie. On May 10, 1990, the circuit court issued a temporary order awarding Steven and Lauralie joint custody over the children.

¶4 During the divorce proceedings, allegations arose that Steven had sexually abused the children during his marriage to Lauralie. Three psychologists were appointed to examine the children. Massoglia petitioned the court for psychological testing based upon allegations by both parents of alcoholism, drug abuse, and abuse of the children. Dr. Jay Cleve conducted this examination. Another psychologist employed by the Portage County Department of Human Services, Dr. Richard Williams, also evaluated the children. Steven requested a third psychologist, Dr. Sue Seitz, through a motion to the circuit court seeking an order that the children be examined by an independent clinical psychologist. All three psychologists testified during the custody proceedings. Dr. Williams testified that Steven had probably sexually abused the children. Dr. Seitz testified that she found no evidence to support the allegation of sexual abuse. Dr. Cleve testified that, based on his examination, he could not express a definitive opinion on the allegation.

¶5 Massoglia, without specifically relying on the allegations of sexual abuse, recommended that the circuit court grant custody of the children to their mother. Notwithstanding Massoglia's recommendation, the circuit court awarded the parties joint custody of the children, granting to Steven primary physical placement and to Lauralie temporary physical placement. In making this custody award, the circuit court found the testimony of Dr. Seitz, who found no evidence of sexual abuse, more credible than the testimony of Dr. Williams, who thought there probably had been abuse. Once the circuit court entered its final custody order, the court terminated Massoglia's appointment as GAL. See Wis. Stat. § 767.045(5).

¶6 Sometime after the divorce, Lauralie obtained the court's permission to take the children out of state for the Easter holiday. Lauralie did not return custody to Steven as scheduled, and a criminal complaint was filed against her for interfering with Steven's custodial rights. Lauralie eventually returned to Wisconsin with the children and surrendered to authorities on May 24, 1991. Physical placement of the children was then formally returned to Steven.

¶7 Approximately two months after their return, the children were placed in a foster home after a child in need of protection or services (CHIPS) petition was filed alleging that Steven had sexually abused the children. Steven was formally charged with sexually assaulting the children. After a jury trial Steven was found guilty and sentenced to a prison term. The circuit court then transferred physical custody of the children from the foster home back to Lauralie.

¶8 The children subsequently brought suit against Massoglia, alleging that he had negligently performed his duties as their GAL in the custody proceedings and that this negligence was a cause of their injuries. The circuit court granted Massoglia's motion for summary judgment, concluding that, as a GAL, Massoglia was entitled to absolute quasi-judicial immunity. The children appealed, and the court of appeals affirmed.

¶9 In affirming the circuit court's order, the court of appeals noted that, like judicial immunity which makes a judge absolutely immune from liability when performing judicial acts within his or her discretion, quasi-judicial immunity extends to non-judicial officers when they are performing acts intimately related to the judicial process. See Paige K.B., 211 Wis.2d at 577, 565 N.W.2d 549. The court of appeals then concluded that a GAL appointed by a circuit court pursuant to Wis. Stat. § 767.045 to represent the best interests of a child in a custody proceeding performs functions intimately related to the judicial process and, therefore, is entitled to absolute quasi-judicial immunity. See id. at 578, 565 N.W.2d 549. We agree with the court of appeals and affirm its decision.

¶10 As this court explained in Ford v. Kenosha County, 160 Wis.2d 485, 466 N.W.2d 646 (1991), "[a]n immunity is a 'freedom from suit or liability' " conferred upon a particular defendant "not because of the existence of a particular set of facts or the moral justification of an act[,]" but as a result of that defendant's status or position. Id. at 495, 466 N.W.2d 646 (internal citation omitted). As the court of appeals noted, Wisconsin courts have recognized an absolute quasi-judicial immunity for those persons who perform functions that are an "intimately related to the judicial process." Paige K.B., 211 Wis.2d at 577, 565 N.W.2d 549; see, e.g., Ford, 160 Wis.2d at 497-98, 466 N.W.2d 646 (quoting Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir.1980)); Dowd v. City of New Richmond, 137 Wis.2d 539, 558, 405 N.W.2d 66 (1987) (finding witnesses in judicial proceedings shielded by absolute immunity); Bromund v. Holt, 24 Wis.2d 336, 346, 129 N.W.2d 149 (1964) (finding appointed pathologist immune from negligence liability); Snow v. Koeppl, 159 Wis.2d 77, 82, 464 N.W.2d 215 (Ct.App.1990) (finding court-appointed psychologist absolutely immune from suit). ²

¶11 Drawing from the reasoning of the United States Supreme Court, Wisconsin courts apply a functional analysis to determine whether such absolute immunity attaches to a particular defendant: "immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches." Ford, 160 Wis.2d at 495, 466 N.W.2d 646 (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Applying this functional analysis, this court in Ford held that clerical personnel in the county clerk of court's office and in the district attorney's office were absolutely immune from any negligence liability in preparing and submitting a bench warrant. The Ford court first noted that a judge is absolutely immune from liability for performing judicial acts within the judge's discretion. See id. (citing Stump v. Sparkman, 435 U.S. 349, 356-64, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)). The court explained that "[t]o allow unsatisfied litigants to sue a judge would 'contribute not to principled and fearless decision-making but to intimidation.' " Id. (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)). In similarly cloaking with absolute quasi-judicial immunity the functions of the clerical personnel, the court reasoned: The same policy that supports absolute immunity for judges justifies absolute immunity for non-judicial officers when they are performing acts 'intimately related to the judicial process.' '[A] nonjudicial officer who is delegated judicial duties in aid of the court should not be a "lightning rod for harassing litigation" aimed at the court.'

Id. at 497-98, 466 N.W.2d 646 (quoting Ashbrook, 617 F.2d at 476)(internal citation omitted). ³

¶12 The sole issue in this case then is whether, like the clerical personnel in Ford, a GAL appointed by a circuit court...