BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2475
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          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  








                                                                  AB 2475
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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  








                                                                  AB 2475
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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  








                                                                  AB 2475
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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  








                                                                  AB 2475
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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:









                                                                  AB 2475
                                                                  Page 18

               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  








                                                                  AB 2475
                                                                  Page 19

               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.  








                                                                  AB 2475
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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  








                                                                  AB 2475
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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  








                                                                  AB 2475
                                                                  Page 22

          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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