BILL ANALYSIS
AB 2475
Page 1
Date of Hearing: May 4, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2475 (Beall) - As Amended: April 28, 2010
SUBJECT : FAMILY LAW: QUASI-JUDICIAL IMMUNITY
KEY ISSUES :
1)Should quasi-judicial immunity be completely eliminated for
private, neutral third parties appointed by the court WHO
assist family COURT JUDGES in trYing to protect the best
interests of children, due to deeply felt concerns that some
of theSE neutral third parties HAVE MADE inappropriate or
mistaken findings OR recommendations to judicial officers in
individual cases, and, IF SO, should these individuals be
subject to lawsuits for POTENTIALLY years to come by
litigants UNHAPPY with the underlying results in theIr family
law cases?
2)might the elimination of quasi-judicial IMMUNITY
inadvertently force the courts to make CRITICAL child custody
decisions with incomplete information, and might, as a
result, some children unintentionally suffer potentially
serious physical or emotional harm?
3)Is there a constitutional separation of powers concern with
requiring the state auditor to review adjudicative functions
of the court, as well as review public employees' COMPLIANCE
with family laws and procedures, as this bill appears to
require?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This well-intentioned but controversial bill sponsored by the
Center for Judicial Excellence in Marin County seeks to
eliminate quasi-judicial immunity from private professionals
appointed by family court judges to assist them in making
difficult custody decisions in the best interest of children.
As a result, fewer experts, knowing they may be subject to tort
lawsuits by disgruntled parents, may unintentionally be willing
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to assist the court in family law cases. Moreover, those that
remain, allege opponents, may be less likely to make open and
honest findings and recommendations to the court, making it
significantly more difficult for the court to reach just
decisions that protect children from harm, and, indeed, risking
that some children might inadvertently suffer physical or
emotional harm by less-informed judicial decision-making.
The bill also requires the Bureau of State Audits to maintain a
dedicated compliance official or division whose sole function
is to review compliance of family courts and public employees
with state-mandated family laws and procedures and make
recommendations to the Legislature, the Governor and the
Judicial Council based on those reviews. Although the State
Auditor has not taken a position on the bill, the Auditor's
Chief Counsel has advised Committee staff that the bill's
provisions are so broad that it raises concerns under the
doctrine of separation of powers. For example, the bill could
be read to mean that the State Auditor's authority extends so
far as to evaluate the courts' compliance with the various
constitutional protections afforded to litigants.
The bill is supported by JusticeCalifornia, which argues that
the bill is necessary to protect against private individuals
who hold themselves out as experts, with the intent to
influence the court about life-altering matters such as child
custody and safety, who are often paid tens of thousands of
dollars for providing their services, and who violate laws and
professional standards. It is opposed by the California Judges
Association, the Judicial Council, the Civil Justice
Association of California, the California Dispute Resolution
Council, and the family law and psychological communities who
all argue that this bill is unworkable and could inadvertently
actually harm children by keeping relevant information from
family law judges, which, in turn, could force them to make
decisions that are not in the best interests of children.
SUMMARY : Eliminates quasi-judicial immunity from private
individuals appointed by the court in family law proceedings.
Specifically, this bill :
1)Provides that the doctrine of judicial or quasi-judicial
immunity does not apply to exonerate from liability private
third parties appointed by the court in an advisory capacity,
based on their professional expertise, who provide reports or
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findings to the court in a family law proceeding with the
intention of the court acting in some way based on those
reports or findings, for acts performed within the scope of
their appointment in violation of laws, rules of court or
professional standards.
2)Provides that #1 applies to private individuals, including
special masters, minor's counsel, investigators, therapists,
evaluators, receivers, bankruptcy trustees, experts,
factfinders, and other persons appointed by the court in an
advisory capacity.
3)Provides that #1 specifically does not apply to any judicial
officer, subordinate judicial officer, arbitrator, or public
employee protected by the doctrine of judicial immunity or
quasi-judicial immunity at the time this bill is enacted.
4)Tolls the statutes of limitation for any action for alleged
misconduct by a private, third party appointed by the court
in an advisory capacity as long as there is any civil,
criminal or administrative investigation or proceeding in
which the appointed third party's alleged misconduct is at
issue.
5)Tolls the statutes of limitation for recovery of damages for
alleged misconduct by a court appointee while the person
seeking the relief is a minor.
6)Requires the Bureau of State Audits to create and maintain a
dedicated compliance official or division whose sole function
is to (a) review compliance of family courts and public
employees with state-mandated family laws and procedures; and
(b) make recommendations to the Legislature, the Governor and
the Judicial Council based on those reviews.
EXISTING LAW :
1)States that the health, safety and welfare of children is the
court's primary concern when determining the best interests
of children for child custody and visitation orders. (Family
Code Section 3020. Unless otherwise stated, all further
statutory references are to that code.)
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2)Permits the court, in a contested child custody or visitation
proceeding where the court determines it is in the best
interests of the child, to appoint a child custody evaluator
to conduct a child custody evaluation. (Section 3111.)
3)Requires parties to contested child custody cases to mediate
their disputes. Where the parties fail to reach an
agreement, allows mediators, consistent with local rules, to
make custodial recommendations to the court. (Sections 3170,
3183.)
4)Establishes qualifications required of child custody
evaluators. Sets forth initial and continuing domestic
violence training for child custody mediators, investigators
and evaluators. Court rules specify qualifications for
evaluators and specify the scope of the evaluation.
(Sections 1816, 3110.5, 3117; Rules of Court 5.220, 5.225.)
5)Requires that local rules include a complaint procedure for
mediators and evaluators. However there is no statewide
uniform rule setting forth the needed procedures and
parameters of the complaint process. (Rules of Court 5.210
and 5.220.)
6)Defines a privileged publication or broadcast as, among other
things, one made in any judicial proceeding, with specified
exceptions. The "litigation privilege" is an absolute
privilege for all communications and the privilege applies to
any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical
relation to the action. (Civil Code Section 47(b); Silberg
v. Anderson (1990) 50 Cal.3d 205.)
7)Extends, under the doctrine of quasi-judicial immunity, the
absolute judicial immunity enjoyed by judges to persons who
fulfill quasi-judicial functions immediately related to the
judicial process. Quasi-judicial immunity applies to, among
others, commissioners, grand jurors, arbitrators,
prosecutors, mediators, evaluators, guardians ad litem and
receivers. (Howard v. Drapkin (1990) 222 Cal.App.3d 843.)
COMMENTS : This well-intentioned but controversial bill,
sponsored by the Center for Judicial Excellence in Marin
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County, seeks to eliminate quasi-judicial immunity from private
professionals appointed by family court judges to assist them
in making difficult custody decisions in the best interest of
children. In support of the bill, the author writes:
Family Courts are routinely called upon to resolve
complex issues of fact involving property valuation
and division, child and spousal support, and child
custody. Family courts routinely employ professional
therapists and investigators to a) conduct family
court services mediation, and/or b) investigate
custody/abuse issues and c) make recommendations to
the court. In addition, Family Courts routinely
appoint individuals who hold themselves out as
qualified professionals or experts, to render opinions
to the court. The courts rely on these employees and
appointees, to provide neutral reports that comply
with the law, rules of court, and professional
standards, to aid the parties and Court in making
tough decisions. However, sometimes these employees
and appointees fail to comply with the law, rules of
court, and/or standards governing their professions,
and this failure a) undermines the public's trust and
confidence in the courts who have employed, appointed
and/or relied upon these employees or appointees to do
their jobs correctly; and, more importantly, b) causes
great and sometimes irreparable harm to the litigants
relying on these professionals. . . .
Judicial immunity is designed to protect judges from
distracting lawsuits. Whether or not such absolute
immunity is warranted is a subject separate and apart
from consideration of the merits of this proposed
bill. But quasi-judicial immunity should not protect
court employees or appointees from improper actions
that would ordinarily be actionable in civil court,
but for the fact that these individuals are employed
or appointed by the court. To provide such protection
encourages professional misconduct.
Litigants and ordinary professionals (lawyers,
doctors, physical and mental health professionals,
investigators, etc.) are bound to follow the law,
rules and standards governing their professions.
Professionals who apply to be hired by the family
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courts to act in a professional capacity, and
professionals seeking to be appointed by the court to
act in a professional capacity, are in essence
representing that they are qualified to be employed or
appointed by the court to professionally, lawfully and
capably perform the job they are employed or appointed
by the court to do. These professionals number in the
many thousands, statewide. The rationale propounded
by judges for claiming judicial immunity, does not
apply to these many thousands of professionals seeking
jobs and appointments by the court. Family law
recommending mediators and other court appointees
purposefully take actions and/or make recommendations
that they know a) carry tremendous weight with judges,
and b) can wreak havoc and irreparable harm in the
lives of families they are employed or appointed to
assess or assist. To make matters worse, the many
thousands of professional court appointees are often
paid by one party or another, and may have financial
motives for aligning with the paying party ("you don't
bite the hand that feeds you"), or they may align with
a particular "theory du jour" that has not been tested
or does not pass muster, or conflicts with, other
theories or standards governing their professions.
These personal considerations have no place in a
situation where a "neutral" professional opinion is
being sought, and purportedly rendered. The bottom
line: professionals providing services to the court,
whether as employees or appointees, should be held to
the same standard, and should be equally liable for
their actions, as non-court professionals.
While the bill originally applied broadly, the bill now
specifically does not apply to any judicial officer,
subordinate judicial officer, arbitrator, or public employee
protected by the doctrine of judicial immunity or
quasi-judicial immunity at the time this bill is enacted.
However, it is not clear how this newly drafted exemption
provision in the bill will actually work (see below.)
In support of the bill, the author provides a summary of
ongoing research currently being conducted by a California
State University professor. The research, based on a survey of
67 self-identified "protective parents," documents the
experience of these parents in family court, including "that
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parents who request protection from family courts for their
children from incest or physical abuse by the child's other
parent often lose custody of those children to the accused
parent."
As additional support, the author has provided an unpublished
research paper from a senior lecturer at the University of
California, Davis, King Hall School of Law who argues that
quasi-judicial immunity should not have been expanded to
"officials who are not performing [] core judicial function or
who are not constrained by procedural safeguards comparable to
those of the judicial process. Rather, these officials should
be afforded qualified immunity which shields them from
liability so long as they did not violate clearly established
law of which a reasonable officer would have known." (Margaret
A. Johns, "A Black Robe is Not a Big Tent: The Improper
Expansion of Absolute Immunity to Non-Judges in Civil Rights
Cases," part of the UC Davis Legal Studies Research Paper
Series (Oct. 2005) 3 (footnote omitted).)
The Elkins Backdrop and the Current Consensus That Our Family
Courts Need to Be Strengthened and Much Better Resourced: Any
consideration of proposals for reform of our family court
system in California should appropriately acknowledge the
extent of the deep problems, including of course the woeful
underfunding, that currently exist in California's family
courts, and the need for major improvements. Such
consideration should also recognize the ongoing reform work
being spearheaded by the judiciary itself, in close
collaboration with the Legislature, through the work of the
Elkins Family Law Task Force, created by the Judicial Council
in May 2008. The task force was tasked with conducting a
comprehensive review of current family law proceedings in the
state and make recommendations to the Judicial Council into the
Legislature that would increase access to justice for all
family law litigants, including self-represented litigants;
ensure fairness and due process; and provide for more effective
and consistent family law rules, policies, and procedures.
Importantly, the Task Force, whose report and recommendations
were recently accepted for consideration and implementation
planning, noted:
Family law touches the most central aspects of
people's lives: where, when, and how often a parent
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will see his or her child; personal safety; how much
child and spousal support one person will receive and
the other will pay; and how family assets will be
divided between the separating parties? Although there
are competing demands for scarce public resources,
improving family courts must be a top priority. Most
taxpayers' experiences with the courts occur through
jury duty, traffic court, or family court. Most people
in California will go to family court at some point in
their lives, for example, to dissolve their marriage
or domestic partnership, to obtain a restraining
order, or to establish custody or support orders.
Their experiences in family court shape their opinion
of the courts. When people are given an opportunity to
present their case and have it resolved fairly and in
a timely manner, they are more likely to accept the
outcome and trust the court system. But if people
believe that they were not given adequate time to
present their case, that procedures prevented them
from fully explaining their side to the judge, or that
they were treated unfairly, they are less likely to
accept the case outcome and may lose respect for our
justice system. Our courts need the public's support
and earn trust and confidence only if people know that
when they come to court, they will be given an
opportunity to present their case in a timely manner
and will be treated fairly and with respect.
The task force has issued its recommendations that point to
what courts and the Legislature can do to improve the state's
family courts. The 21 main recommendations cover five
different aspects of family court and include a number of
specific recommendations for each one, including: 1) Efficient
and effective procedures to help ensure justice, fairness, due
process and safety; 2) More effective child custody procedures
for a better court experience for families and children; 3)
Ensuring meaningful access to justice for all litigants; 4)
Enhancing the status of, and respect for family law litigants
and the family law process through judicial leadership; and 4)
Laying the foundation for future innovation. Many of these
reforms can and will be done by the courts. However some of
the most important ones should be done statutorily by
legislation, which is currently positioned in the Legislature
in the form of AB 939, a bill by this Committee, awaiting
amendment and consideration in the Senate Judiciary Committee.
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Thus, while this bill's particular proposal for improving the
child custody process in family court through the proposed
complete termination of quasi-judicial immunity for private
neutral third parties appointed by the court was not one of the
task force's recommended reforms, it does reflect the
understandable deep concern held by the author and the sponsors
about the current troubled state of California's family court
system. Therefore the question before the Committee with this
legislation does not appear to be whether or not the system
should be reformed, and reformed dramatically (there is broad
and strong consensus with that notion), but whether this bill's
particular recipe for improvement will actually improve the
prospects for just results for all parties, especially the
children.
The Importance of Quasi-Judicial Immunity to the Independence
of the Judiciary and the Accuracy of Judicial Actions :
Judicial immunity dates back to English common law and bars,
absolutely, all civil actions against judges for their judicial
acts, no matter how erroneous or malicious those acts may be.
(Tupen v. Booth (1880) 56 Cal. 65, 68.) Absolute immunity is
necessary to protect the independence of the judiciary, by
preventing disgruntled litigants from relitigating their cases
against judges in civil tort actions. "If 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." (Forrester v. White
(1988) 484 US 219, 226-27 (citation omitted).)
For the same policy objectives of promoting uninhibited and
independent decisionmaking, California courts have long
extended absolute judicial immunity to non-judges who act in a
judicial or quasi-judicial capacity, through the concept of
quasi-judicial immunity. The limited group of individuals
entitled to quasi-judicial immunity includes commissioners,
referees, administrative law judges, and prosecutors. (See,
e.g., Pearson v. Reed (1935) 6 Cal.App.2d 277; Tagliavia v.
County of Los Angeles (1980) 112 Cal.App.3d 759, Turpen v.
Booth, 56 Cal. at 69; Taylor v. Mitzel (1978) 82 Cal.App.3d
665.) That list was expanded twenty years ago to include a
narrow group of neutral third-parties acting in a judicial
capacity, and this bill seeks to abrogate a significant portion
of that well-settled approach.
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Howard v. Drapkin: Well-Settled Law on Quasi-Judicial Immunity
Case That Would, in Part. Be Abrogated by This Bill : Although
not directly stating so, this bill effectively seeks to
abrogate a large portion of the well-settled holding in Howard
v. Drapkin (1990) 222 Cal.App.3d 843, which protects courts'
access to independent and impartial information. That 20-year
old case evolved from a child custody dispute in which the
mother alleged that the father had physically and sexually
abused their child. The parents, by stipulation signed by the
court, agreed to retain an evaluator to make findings and
recommendations to the court. The mother later sued the
evaluator alleging that the evaluator's conduct was abusive and
failed to disclose conflicts and lack of expertise in child
abuse matters, and that the evaluator's report included false
statements and omitted crucial information. The trial court
sustained the evaluator's demur and dismissed the case, holding
that the evaluator was entitled to quasi-judicial immunity.
The mother appealed.
The court of appeals affirmed the dismissal. California
courts, wrote the Howard court, have long extended
quasi-judicial immunity to people other than judges if they act
in a judicial or quasi-judicial capacity. Noting the important
policy of attracting independent and impartial services and
expertise to an overburdened judiciary, the court held that all
"nonjudicial persons who fulfill quasi-judicial functions
intimately related to the judicial process should be given
absolute quasi-judicial immunity for damage claims arising from
their performance of duties in connection with the judicial
process." (Id. at 857.) "Without [this] immunity, such
persons will be reluctant to accept court appointments or
provide work product for the courts' use. Additionally, the
threat of civil liability may affect the manner in which they
perform their jobs." (Id. (citations omitted).)
Wrote the court: "The job of third parties such as mediators,
conciliators and evaluators involves impartiality and
neutrality, as does that of a judge, commissioner or referee;
hence, there should be entitlement to the same immunity given
others who function as neutrals in an attempt to resolve
disputes. In a sense, those persons are similar to a judge who
is handling a voluntary or mandatory settlement conference, no
matter whether they are (1) making binding decisions . . . ,
(2) making recommendations to the court . . . , or (3)
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privately attempting to settle disputes." (Id. at 860.)
This bill seeks to eliminate quasi-judicial immunity from many,
although not all, of those groups. This bill would
specifically eliminate quasi-judicial immunity from private
third-parties appointed by the court in family law proceedings
for their expertise, including special masters, minor's
counsel, investigators, therapists, evaluators, receivers,
bankruptcy trustees, experts, and factfinders. It is
interesting to note that not all of these groups enjoy
quasi-judicial immunity today and that some of them, like
bankruptcy trustees, are not even appointed by the family
court.
Might This Bill Inadvertently Make it More Likely that Courts
Will Have Less Information on Which to Base Difficult Decisions
in Family Law Cases, and Might it Be More Likely that, Without
Such Critical Information, Mistakes Might be Made that Could,
However Inadvertently, Result in Significant Physical and
Mental Abuse of Children ? Proponents argue that eliminating
quasi-judicial immunity is necessary to ensure that court
appointed experts comply with the law. However, opponents
counter that this bill, however well-intentioned, has
significant unintended consequences that could inadvertently,
but dangerously, cause serious physical or mental harm to
parents and children. If this bill were to become law,
opponents contend that many neutral third parties on which the
court relies for their expertise will decide not to participate
in family court evaluations, recommendations and fact-finding,
greatly reducing experts available to assist the court in
making decisions in very contentious cases.
Perhaps more dangerously, opponents contend, those private
experts who do continue to participate in assisting courts in
protecting the best interest of children may understandably
become unwilling to make substantive recommendations that they
will reasonably fear could subject them to substantial personal
liability. If an evaluator, for example, suspects one of the
parents has a problem that could possibly endanger the child,
but does not have irrefutable proof of that, he or she may,
without the reasonable protection of quasi-judicial immunity
from lawsuit, be reluctant to raise suspicions in a report to
the court for fear of being sued by the losing parent. As a
result, the court likely will no longer receive open and honest
findings and recommendations from experts, and have a
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significantly more difficult time reaching fair decisions.
Some Hypothetical Examples of How This Measure Might Affect
Family Law Cases: Several examples may help elucidate whether
this bill might inadvertently fail to protect, and even
unintentionally harm, some children. Suppose the parents are
locked in a bitter custody battle, with one parent raising
allegations of child abuse. Today, the court may appoint an
expert to look into the allegations. If this bill becomes law,
the court may not be able to find an expert to assist the court
in gathering information on which to base a decision. Even if
the court does find a willing evaluator, the evaluator, if he
or she does not have absolute proof that the parent is abusing
the child, may be very reluctant to raise such claims even if
there is some evidence to support them, for fear of being sued
by the potentially abusive parent. Without this information,
the court may unknowingly award custody to the child abuser,
the very opposite goal of this legislation.
Similarly, if the evaluator has suspicions, but no irrefutable
proof, that one parent is abusing drugs, the evaluator may
choose not to raise those suspicions in the evaluation to the
court for fear of litigation by an angry parent years later.
Again, without this crucial information, the court may award
full custody to the parent with a very serious drug addiction
Finally, consider the situation where one parent has
significant sums of money. Suppose this parent has been
bullying the other parent, and the children, and dragging on
the underlying custody litigation for years. The evaluator
appointed in this case, again assuming one can be found, would
almost certainly know that if she says anything too negative
about the wealthy parent that she will be sued down the road.
Assuming the evaluator chooses to continue the evaluation, she
may, out of fear of future litigation, simply write a vague
report with little information to help the court in making its
difficult decision. Without that critical information, the
court may award custody to the bullying parent and take the
children away from the parent who has been trying to protect
them.
Family law judicial officers and counsel have long testified in
the Legislature that determining custody arrangements that
appear to be in the best interests of children is one of the
toughest jobs a court officer and an evaluator can ever make.
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These decisions, they state, are extremely fact intensive
inquiries - each family situation and each child is unique, and
every judicial inquiry must consider those unique situations,
and have as much potential evidence before the court as the
court deems admissible and illuminating. Unfortunately, this
bill may unintentionally result in less information getting to
judges. The end result could well be that children suffer harm
by being placed in potentially dangerous custodial
arrangements. While this bill seeks to protect children, as
these examples show, it may, opponents note, well have the
exact opposite, and possibly tragic, effect.
In addition, those who continue to participate in family law
cases will undoubtedly have to increase their insurance
protection, assuming such insurance is available. This will
result in higher costs to the parties, and could inadvertently
result in fewer families being able to afford the assistance of
these family law experts in helping them resolve disputes in
the fairest and safest way.
Might This Bill Inadvertently Undermine Out-of-Court Dispute
Resolution that Families May Today Voluntarily Choose to Engage
in and Force Many More Cases Back to Our Already Overburdened
Family Courts for Resolution ? Despite recent amendments, it is
possible that this bill could apply to remove quasi-judicial
immunity from private mediators. Private mediators help
families reach consensual resolutions, outside of court, often
on very contentious matters, with the resolution often becoming
a stipulated order or judgment of the court. If their
quasi-judicial immunity is removed for family law matters, some
or many of such private dispute resolution specialists would be
unlikely to continue to mediate family law cases. The parties
in these cases would have no alternative but to have their
disputes resolved by family courts, which are increasingly
overwhelmed and underresourced.
While the latest amendments have remove the word "mediator"
from the bill, the California Dispute Resolution Council is
still concerned that the bill could be applied to private
mediators and remains opposed. In opposition to the bill, the
Family Law Section of the Los Angeles County Bar Association
writes that:
Efficient, cost-effective ADR [alternative dispute
resolution] procedures are particularly important in
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family law matters . . . . The importance of such ADR
options is magnified by current budget cuts, which are
only exacerbating the pre-existing scarcity of
judicial resources to resolve family law disputes.
Yet, family law disputes are among the most important
in our court system because they affect almost
everyone in our society. AB 2475 would discourage
otherwise qualified persons from serving as mediators
or conciliators by exposing them to potential claims.
AB 2475 would thereby restrict the availability of ADR
options, making resolution of family law disputes even
more difficult in these already trying times.
This Bill Appears to Conflict Directly with the Litigation
Privilege Which This Bill Does not Purport to Change : Although
denying quasi-judicial immunity to a large group of
individuals, this bill does not purport to change the
long-standing litigation privilege, thus creating the potential
for great confusion and litigation. The litigation privilege,
codified at Civil Code Section 47, provides absolute immunity
for all communications (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized
by law; (3) to achieve the objects of the litigation; and (4)
that have some connection or logical relation to the action.
The purposes of privilege is to "afford litigants and witnesses
the utmost freedom of access to the courts without fear of
being harassed subsequently by derivative tort actions,"
promote "the effectiveness of judicial proceedings by
encouraging 'open channels of communication and the
presentation of evidence' in judicial proceedings," and "assure
utmost freedom of communication between citizens and public
authorities whose responsibility is to investigate and remedy
wrongdoing." (Silberg v. Anderson (1990) 50 Cal.3d 205, 213
(citations omitted).) The privilege applies broadly to "any
publication required or permitted by law in the course of a
judicial proceeding to achieve the objects of the litigation,
even though the publication is made outside the courtroom and
no function of the court or its officers is involved." (Id. at
212.) As a result, the privilege applies to, among others,
evaluators who provide reports to the court. (See Howard v.
Drapkin, 222 Cal.App.3d at 863-64.)
The California Supreme Court understood that the privilege
could result in an occasional injustice, but that it was
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essential for the broader interests of justice: "It is, of
course, true that 'justice,' in the sense of 'fairness,' is not
served where an attorney seeks to deceive a party into relying
on an expert by misrepresenting the expert's impartiality.
However, the evils inherent in permitting derivative tort
actions based on communications during the trial of a previous
action are . . . far more destructive to the administration of
justice than an occasional 'unfair' result." (Id. at 213.)
Individual injustice can always be corrected by a direct appeal
of the underlying case.
Most, if not all, of the private, third parties that this bill
seeks to deny quasi-judicial immunity are also subject to the
litigation privilege. Thus it is possible that these
third-party experts may still be protected from derivative tort
actions under that absolute privilege, but such result is far
from certain. What is clear is that this bill, should it
become law, will result in significant litigation trying to
ascertain its intent and application.
Is it Appropriate to Treat Individuals Performing the Identical
Function - Some Employed Directly by the Courts, While Others
are Private Individuals Contracted by the Courts - Differently,
as This Bill Inadvertently Appears to Do ? The bill, by its own
terms, applies to private third parties appointed by the court
in an advisory capacity. For over 25 years, California has
required that parties in contested child custody cases mediate
their custody disputes in an attempt to agree to a parenting
plan. While many courts accomplish this through traditional,
confidential mediation, 38 courts use "recommending mediation,"
where the "mediator" recommends a parenting plan to the court
if the parties are unable to reach agreement on their own.
Many of the courts that use recommending mediation rely, at
least in part, on contracts with private parties to conduct the
mediation and make the recommendations to the court, including
courts in Monterey, Sacramento and Solano counties.
Under the terms of the bill it appears that the so called
"recommending" mediators in courts that use their own staff to
conduct the recommending mediation will still be covered by
quasi-judicial immunity, but privately contracted recommending
mediators will not. Thus, individuals who perform the
identical function for the courts would be treated differently
- some would have quasi-judicial immunity and some would not.
More importantly, families would receive different levels of
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service and assistance, depending on whether their local trial
court contracted out for its recommending mediation services.
There appears to be no legitimate policy reason for this
distinction. Additionally, this change is likely to drive up
costs for the courts that use private mediators, since they
will undoubtedly have to either pay for the costs of additional
insurance for the mediators or agree to indemnify them should
they be sued.
The Bill Extends the Time Period for Filing Subsequent Tort
Actions for Years : Tort claims for negligence generally have a
two-year statute of limitation. In order to allow family law
litigants to bring tort actions against neutral family law
experts appointed by the court, this bill tolls the statutes of
limitation in two ways. First, the bill tolls the statutes of
limitation for any action during the pendency of any civil,
criminal or administrative investigation or proceeding in which
the court appointee's alleged misconduct is at issue. Thus, if
a disgruntled family law litigant seeks redress of his or her
grievances in any of the alternative ways that exist today for
challenging expert findings or recommendations, discussed
above, the litigant can fully pursue those alternative
challenges and still bring the derivative tort action after all
of those alternatives have been completed, whether successfully
or not.
Second, the bill tolls the statutes of limitation for recovery
of damages for alleged misconduct by a court appointee while
the person seeking the relief is a minor. Thus, a child who is
the subject of a contentious custody dispute when she is one
year old, can bring an action against a third party,
court-appointed expert 19 years later. The Association of
Certified Family Law Specialists writes in strong opposition
that:
The proposal of tolling the statute until a child
grows up is perhaps the worst idea of all in AB 2475.
Enabling a child to wait to sue an evaluator or other
expert when the child becomes an adult for alleged
misconduct many years after the fact seems to just
open the Pandora's box for endless litigation. Every
child who grows up to be an unhappy adult may decide
to blame and sue the evaluator or other expert in
their parent's divorce or other family law case.
Evidence may have been lost, witnesses died or
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re-located and unavailable. No professional is going
to undertake any appointment where they may have to
defend such unknown lawsuits many years in the future.
The Bill Proposes a Significant New Role for The State Auditor
in Reviewing Court and Employee Compliance with Laws and
Procedures, Which Raises Separation of Powers Concerns : Apart
from the immunity provisions, the bill requires the Bureau of
State Audits to maintain a dedicated compliance official or
division whose sole function is to review compliance of family
courts and public employees with state-mandated family laws and
procedures and make recommendations to the Legislature, the
Governor and the Judicial Council based on those reviews.
Although the State Auditor has no formal position on this bill,
the State Auditor's Chief Counsel has advised Committee staff
that these provisions are so broad that it raises concerns
under the doctrine of separation of powers. The Chief Counsel
has advised that the enabling statutes that govern the Bureau
of State Audits (Bureau) authorize the Bureau to conduct audits
of all publicly-created entities in the state, including the
courts. However, in conducting audits related to the court
system, the State Auditor has always been very respectful that
under the separation of powers doctrine, the role of the State
Auditor, as an executive branch official, is not to second
guess, or evaluate, the core judicial decisionmaking function
of the courts. Rather, the focus of work performed by the
State Auditor within the court system has been focused on the
more administrative and operational aspects of the operation of
the court system. Because the proposed language is so broad and
pertains to the courts' compliance generally with
"state-mandated laws and procedures," it could be read to mean
that the State Auditor's authority extends so far as to
evaluate the courts' compliance with, for example, the various
constitutional protections afforded to litigants. According to
the Chief Counsel for the State Auditor, this would raise a
significant concern under the doctrine of separation of powers.
Are There Some Options Available Today to Challenge an Expert's
Recommendations to the Court? : In considering this legislation
opponents point out that it is important to note that
alternative avenues exist today to challenge the
recommendations and findings of the neutral third parties
covered by this bill. Explains the Judicial Council:
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We also note that providing these neutral third
parties with immunity does not leave litigants without
a forum in which to redress their grievances.
Ultimately the court is the final decision-maker, and
parties can attack the findings or recommendations of
a court-appointed expert in the underlying proceeding
by introducing their own evidence, or subjecting the
expert to cross-examination. Moreover, with regard to
court-appointed child custody mediators and evaluators
courts are required to have a process for receiving
and investigating complaints against these individuals
(See rules 5.210 and 5.220, California Rules of
Court). Finally, child custody evaluators are
required to have professional licenses, and complaints
can be filed with the entities that issue and oversee
those licenses if unprofessional conduct is alleged.
Could the Existing Court Complaint Process Be Improved, and
Might This Be a Possible Substitute Approach the Author May
Wish to Consider? Committee Counsel Raised This Possible
Substitute With the Author Last Week But Thus Far It Has Not
Been Accepted : In the event the Committee potentially
concludes that it would be inappropriate to eliminate
quasi-judicial immunity from experts assisting family courts
reach just resolutions, as this bill currently proposes, the
Committee may nonetheless conclude that the existing, local
court complaint process for court-appointed experts should be
improved. For it is apparent that a statewide complaint
process that is expeditious and effective in handling
complaints and provides for procedural fairness could
substantially increase the likelihood that complaints against
third-party experts (both public and private) are resolved
timely, completely and fairly. As noted, however, the author
has thus far rejected this proposed substitute approach for his
bill.
ARGUMENTS IN SUPPORT : In support of the bill,
JusticeCalifornia writes that the recently released
recommendations of the Judicial Council's Elkins Family Law
Task include a recommendation to permit sanctions against
litigants or attorneys who do not comply with requirements:
The Elkins Task Force and the Judicial Council have
seen fit to create non-statutory sanctions for family
law attorneys (many of whom work on a pro bono or
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reduced fee basis, in some of the most egregious
custody cases) and pro per litigants (who cannot
afford attorneys), which sanctions are inconsistent
with current Family Code and Code of Civil Procedure
provisions, for violating the 210-page l0-pt type
Judicial Council California Rule of Court, Rule 5.
Given the extraordinarily stringent standard to which
Family Court attorneys and pro per litigants are going
to be held, there is absolutely no justification
whatsoever for:
1) Providing quasi-judicial immunity to private
individuals who a) hold themselves out as experts in
their field; b) seek court appointments with the
intent to influence the court with their expert
opinions about life-altering matters such as child
custody and safety; c) are often paid tens of
thousands of dollars (if not hundreds of thousands of
dollars) for providing their services; AND d) violate
laws, rules of court, and standards of their
professions, in the performance of their appointment;
or
2) Objecting to executive and/or legislative
compliance reviews of family courts and public
employees (such as Family Court Services investigators
and mediators that submit reports and recommendations
for consideration by the Family Court) that a) are
trusted and expected to know and follow laws, rules of
court, and the standards of their professions; and b)
may enjoy judicial or quasi-judicial immunity.
(Emphasis in the original.)
ARGUMENTS IN OPPOSITION : In opposition to the bill, the
California Judges Association writes that this bill could cause
significant hardship:
Maintaining quasi-judicial immunity for non-judicial
neutrals is vital to the health of the Judiciary. For
two decades now we have benefited from the ruling in
Howard v. Drapkin (1990), which extended "absolute
quasi-judicial immunity?to neutral third persons who
are engaged in mediation, conciliation, evaluation, or
similar dispute resolution efforts." (222 Cal. App.
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3d 843, 851.) The court in Howard pointed out that an
overburdened judicial system depends on the
"independent and impartial services and expertise" of
nonjudicial persons who fulfill quasi-judicial
functions. (Id. at 875-858.) "Without such
immunity, such persons will be reluctant to accept
court appointments or provide work product for the
courts' use. Additionally, the threat of civil
liability may affect the manner in which they perform
their jobs." (Id. at 858).
Never has the Howard holding been truer than today.
Consider the Los Angeles Superior Court, which
conducts the largest alternative dispute resolution
(ADR) program in the country. Tens of thousands of
mediations, arbitrations, evaluations, and settlement
conferences take place each year in LA, overwhelmingly
handled by volunteers willing to serve as neutrals for
these processes. Los Angeles Superior Court is
already laying off employees and closing courtrooms to
make ends meet. It relies heavily on ADR to
administer justice efficiently and effectively while
reducing the backlog of cases.
Strip neutrals of their quasi-judicial immunity and
Los Angeles Superior Court, along with the rest of the
Judiciary, is sure to be overburdened by the
additional weight of having to try all the cases that
would otherwise have been taken care of through ADR.
The California Psychological Association (CPA) opposes the bill
because it could compromise the safety and well-being of
children that courts should be protecting by causing
psychologists to cease working in the courts. "Removing
immunity is an invitation for a truly abusive parent to harass
any mental health professional attempting to assist or protect
the child, and would raise the risk that such professionals
would be hesitant to express an opinion contrary to the wishes
of the powerful parent." Parties can still challenge an
evaluator through a complaint with the California Board of
Psychology, since, as CPA points out, quasi-judicial immunity
only protects against malpractice lawsuits and not against
complaints to their governing board.
The California Association of Marriage and Family Therapists
adds that this bill seeks to do what was specifically rejected
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by this Committee last year in AB 612 (Beall), which sought to
limit evidence that a court could consider in child custody
cases. While this bill would not limit what a court could
consider, it would permit a lawsuit against an expert who
offered such evidence as part of his or her opinion.
Writes the Family Law Section of the Los Angeles County Bar
Association:
AB 2475 is poorly drafted and is substantively
objectionable for several reasons, all of which are a
function of its obvious purpose: to discourage
alternative dispute resolution. . . AB 2475 would
discourage otherwise qualified persons from serving as
mediators and conciliators by exposing them to
potential claims. AB 2475 would thereby restrict
availability of [alternative dispute resolution]
options, making resolution of family law disputes even
more difficult in these already trying times.
AB 2475 would also adversely affect family law courts
by depriving them of necessary information and
analysis provided by third-party professionals such as
child custody evaluators. Such persons presently
enjoy immunity for actions taken in their
quasi-judicial capacity because, like judges, such
immunity "is given to promote uninhibited and
independent decisionmaking." . . . Such third-party
professionals are crucial to the functioning of our
family law courts. Depriving those courts of the
information and analysis provided by such third-party
professional would virtually cripple an already
over-burdened judicial system.
Pending Legislation : When AB 612 (Beall) was heard by this
Committee last year, the Committee, on a bipartisan basis,
insisted that the then-contents of the bill be completely
removed and, on that commitment by the author, passed out the
bill with the following substitute provisions: (1) a child's
expression of significant hostility toward a parent may, in the
discretion of the court, be admitted as possible corroborating
evidence that the parent has abused the child; (2) a court may
not conclude that an accusation of child physical or sexual
abuse against a parent is false based solely on the child's
expression of significant hostility toward the parent. When
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the bill was in the Senate, the author nevertheless amended the
bill back to essentially the same version that had been
previously, on a bipartisan fashion, rejected by this
Committee. The bill is currently pending before the Senate
Judiciary Committee, and would prohibit family court judges
from relying on or considering certain evidence that is based
on "unproven, nonscientific theories" including alienation
theories, when trying to determine what custody arrangement
appears to be in the best interest of children.
Previous Legislation : AB 612 (Ruskin), 2007, as substantially
amended by this Committee, would have limited when, in
connection with a child custody evaluation, the court can order
the psychological testing of a parent and who can perform such
testing. The bill also excluded nonscientific labels and
diagnoses that are not consistent with standards generally
accepted by the medical, psychiatric and psychological
communities. The bill passed out of the Assembly, but did not
pass off the Senate Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
Center for Judicial Excellence (sponsor)
JusticeCalifornia
Opposition
Association of Certified Family Law Specialists
Association of Family and Conciliation Courts, California
California Association of Marriage and Family Therapists
California Dispute Resolution Council
California Judges Association
California Psychological Association
Civil Justice Association of California
Family Law Section of the Los Angeles County Bar Association
Family Law Section of the State Bar
Judicial Council
Two individuals
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
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