GALs and Immunity
Posted Friday, February 21, 2014 by John S. Palmer
A guardian ad litem plays an important role in a variety of legal proceedings. For example, in guardianships, a GAL must be appointed for the alleged incapacitated person to conduct an investigation and file a report with the court describing the extent of his or her incapacity and need for treatment, and evaluating the appropriateness of the guardian nominee. GALs perform similar investigatory functions in child custody cases and proceedings to terminate parental rights. They also may be appointed to represent the interests of a minor or incapacitated adult who is a party in a pending lawsuit or probate proceeding.
In guardianships, GALs are also charged with explaining the substance of the guardianship petition and resulting proceeding to the alleged incapacitated person; advising them of their right to an attorney and a jury trial on the issue of their capacity; and advising the court of the need for an attorney if warranted. They also have the authority to seek an injunction to protect the alleged incapacitated person from abuse, neglect, abandonment, or exploitation; and give informed consent to emergency lifesaving medical services if the alleged incapacitated person is unable to consent due to incapacity.
When GALs are supposed to gather information for the court’s consideration, they are sometimes described as acting as an “arm of the court”. Accordingly, they have traditionally been granted “quasi-judicial immunity” to protect them from being sued by a disgruntled party.
The Washington Court of Appeals has just issued a decision making clear that this immunity has limits. The court did so by declining to dismiss a lawsuit alleging that a GAL in a proceeding to terminate parental rights had sexually harassed one of the parties.
Specifically, the decision (Kelley v. Pierce County, decided February 20, 2014) upheld the trial court’s decision to deny Pierce County’s motion to dismiss the lawsuit. In doing so, the court noted that, just as “judicial immunity ensures that judges can administer justice without fear of personal consequences”:
Quasi-judicial immunity “attaches to persons or entities who perform functions that are so comparable to those performed by judges that it is felt they should share the judge’s absolute immunity while carrying out those functions.”[Citation omitted]. Therefore, quasi-judicial immunity protects those who perform judicial-like functions to ensure they can also do so without fear of personal consequences.”
The court acknowledged that in its 2001 decision in West v. Osborne, in which a mother complained that the GAL had performed her duties in a negligent and incompetent manner, it had stated that the GAL was “acting as an arm of the court at all times; therefore, she was entitled to quasi-judicial immunity.” However, it said that for quasi-judicial immunity to apply to Mark Skagren, the GAL appointed in the Kelley matter, “he must have been performing the GAL’s function to investigate facts and to report facts” at the time the alleged wrongful conduct occurred, but that Kelley alleged that he frequently visited her at home and work without asking about her son, pressured her to date him, sexually harassed her, and “continuously called and texted her, often after midnight.” If these allegations are true, then “Skagren was not acting within a GAL’s function when he engaged in this conduct, and, therefore, would not be entitled to immunity.” Or, as the court put it another way:
Because immunity exists to protect the functions one is performing, rather than the person who is performing them, when a GAL is not acting within his statutory duties, he is not acting as “an arm of the court” and cannot be entitled to quasi-judicial immunity.
The court rebuked Pierce County for arguing that West stood for the proposition that a GAL acts as an arm of the court “at all times” during his or her appointment (and is therefore presumably entitled to immunity “at all times”), stating that “we did not hold in West that a GAL is always protected or is never acting outside of his GAL duties. Such a result would be absurd.” The court said that the County was taking the phrase “at all times” out of context; as used in its opinion, it was referring to “all times that were relevant in that case” because the allegations presented in West “were aimed at what the GAL did while performing her GAL functions and were not like Kelley’s allegations here that Skagren engaged in inappropriate stalking, preying, assault and sexual misconduct against her outside of his GAL duties.”
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