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 AB 2475 Page 2 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 AB 2475 Page 3 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.) AB 2475 Page 4 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 AB 2475 Page 5 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 AB 2475 Page 6 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 AB 2475 Page 7 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 AB 2475 Page 8 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. AB 2475 Page 9 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. AB 2475 Page 10 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) AB 2475 Page 11 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 AB 2475 Page 12 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. AB 2475 Page 13 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 Page 14 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 Page 15 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 Page 16 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 Page 17 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 Page 20 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 Page 21 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 AB 2475 Page 23