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 SECTION 1983 LIABILITY OF THE GUARDIAN AD
LITEM

DAVID N. SANDBERG*
ALLAN H. MACURDY**

The prevalence of abuse allegations in divorce actions demonstrates the

compelling need for an independent assessment of the child's best interests.
This need is most often served through the appointment of a guardian ad
litem. Recent developments, however, have demonstrated the increasing in-
clination of aggrieved parties to punish guardians and other "key" judicial
and administrative actors for adverse recommendations, utilizing state
causes of action as well as civil rights claims under 42 U.S.C. 1983.'
Some level of shielding is necessary to provide guardians ad litem the free-
dom necessary to carry out their function. At the same time, section 1983
was intended to protect fundamental rights from official abuse.2

* Mr. Sandberg is Lecturer in Law at Boston University School of Law, and Acting
Justice, Portsmouth District Court, Portsmouth, New Hampshire. B.S. cum laude,
Florida Southern College, 1964; M.A., California State University, 1966; J.D., Frank-
lin Pierce Law Center, 1981.
** Mr. Macurdy is Lecturer in Law at Boston University School of Law, and Staff
Attorney, N. Neil Pike Institute for the Handicapped, Boston University School of
Law. B.A., Boston University 1983; J.D., Boston University, 1986.
1 Original jurisdiction is vested in the federal courts to hear 1983 cases under 28
U.S.C. 1343, although the state courts may also hear them. Monetary damages and
declaratory and injunctive relief are permitted, as are attorney's fees to the prevailing
party pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, codified at 42
U.S.C. 1988. Alleged harms can include loss of liberty, loss of employment, emo-
tional distress, and alienation of affection between parent and child. Although other
causes of action and forums are available, 1983 provides entry into federal court. As
these actions involve state systems or persons closely associated with state systems, fed-
eral court is apt to be the preferred forum.
2 The authors acknowledge their differing perspectives, especially as to 1983 en-

forcement, in an attempt to underscore the difficulties in balancing the important social

and constitutional interests in this context. Mr. Macurdy brings a resistance to immu-
nities of a civil rights specialty while Mr. Sandberg faces the dangers of serving as
guardian ad litem in his children's law practice. We may come to this issue with di-
verging emphases, but we recognize the compelling nature of the risks to children.
271
272 PROBATE LAW JOURNAL [VOL. 9:271

The task we have set is a daunting one: protecting the vital functions of
the guardian ad litem without impairing the ability of truly wronged indi-
viduals to seek redress. We seek a greater sophistication in immunity anal-
ysis beyond the contextual myopathy of immunity doctrine. As an aid to
understanding, we set forth a hypothetical fact pattern, not based upon
any specific case, but reflective of a class of actions brought against guard-
ians.3 Part I examines the role of the guardian ad litem. Part II addresses
the development of common-law immunity, its scope and policy rationales.
Part III discusses the purposes and history of the section 1983 cause of
action. Part IV examines section 1983 immunity. Part V includes a brief
discussion of state law causes of action against guardians ad litem, and
state immunities available to them.

I. ROLE OF THE GUARDIAN AD LITEM

In our scenario, Wife files a divorce action against Husband alleging,

inter alia, sexual abuse of their three-year-old child, Daughter.' She re-
quests that Husband have no visitation until he acknowledges the abuse
and participates in perpetrator therapy. Husband denies any abuse, and in
his cross-libel, requests custody based on Wife's manufacture of the sexual
abuse charge which in his view is a clear indication of her extreme
instability.
Just prior to filing, Wife had the child evaluated by a psychotherapist
who concluded that the child was probably abused. The therapist filed a
child abuse report with the local child protection agency. At the hearing
for temporary custody, the judge appointed an attorney to act as guardian
ad litem, and directed that a report including a "best interest of the child"
recommendation be filed within ninety days.
Before proceeding, a few words are necessary regarding the role and
duties of guardians ad litem and counsel for children. Often no distinction

3 By no means are guardians the only court officials at risk. "Key actors" such as
police, probation officers, therapists, child protection workers, physicians, court-ap-
pointed counsel for children and county attorneys are vulnerable to 1983 suits in
child abuse cases if the acts at issue are not within the scope of appointment or were
not essential to the judicial process. However vital each may be to the resolution of an
abuse allegation, probate courts are likely to be most directly connected to guardians
whom they typically appoint. There is also a growing body of actions brought against
district attorneys, police officers, care and protection workers and even mandated re-
porters of abuse. Even judges have been named, although judicial immunity has tradi-
tionally provided them a greater degree of protection.
4 Another situation with similar potential for guardian ad litem liability is in large-

scale sexual abuse cases such as those occurring in day care centers. These cases are
tried in the public eye to a greater extent, with the increased risk of stigmatizing inno-
cent people. Such persons would likely seek redress.
1989] SECTION 1983 LIABILITY 273

is made between the two, and child protection statutes typically compel the
appointment of an "attorney" for children who are subject to a child pro-
tection proceeding.5 The question that arises for counsel is this: "How can
I represent somebody within the attorney-client relationship who is three
years old?" The answer, of course, is: "I cannot" and common sense dic-
tates that the proper role is that of guardian ad litem, notwithstanding the
statutory command.
Further difficulty is encountered when a judge asks an attorney for a
fifteen-year-old abuse victim to express a "best interest" viewpoint, espe-
cially when the victim wishes to return to or remain in the same household
with the abuser. Counsel, seeking to advance the wishes of the child-client,
is often met with the "we are all here to do what is best for the child"
response.
Despite the conflicting interplay between the role of attorney and that of
guardian ad litem, it is well established that judges appoint guardians ad
litem, with or without express statutory authority, to advise the court of
what is in the best interest of the child. Guardians ad litem are also used
in delinquency cases' and termination of parental rights proceedings as
well as adoption, guardianship and custody disputes.
Regardless of the type of case, a major duty of the guardian ad litem is
investigation. Without a thorough investigation, the guardian is in a poor
position to advise the court of what is in the child's best interest. Another
paramount duty is minimization of the system's harm to the child, an espe-
cially important role if the child is not represented by counsel. In prevent-
ing such harm, the guardian must ensure that the system workers do their
jobs properly. In short, the guardian ad litem is a valuable tool for courts
and can carry out a variety of functions in different types of cases. Despite
this, statutes, court rules and guidelines, as well as the Code of Profes-
sional Responsibility, provide little guidance concerning the role and duties
of the guardian ad litem.7
Based upon conflicting therapist evaluations, child protection agency de-
terminations of "no abuse, but at risk," and the lack of corroborating evi-
dence, the guardian ad litem in our scenario concludes that there is insuffi-
cient proof to indicate Husband has abused Daughter. Yet, he is also of

' See, e.g., N.H. REv. STAT. ANN. 169-C (Supp. 1988).
' See, e.g., In re Lisa C., 127 N.H. 585, 504 A.2d 1 (1986).
I In contrast, children accused of delinquent offenses have been granted the right to
counsel since In re Gault, 387 U.S. 1 (1967). States with CHINS (Children in Need of
Services) laws have extended the right to counsel to youths accused of such "status"
offenses as running away, truancy, and being ungovernable. See, e.g., N.H. REV. STAT.
ANN. 169-D:12 I (Supp. 1988). These cases feature an attorney-client relationship,
and counsel is bound by the Code.
274 PROBATE LAW JOURNAL [VOL. 9:271

the opinion that Wife has not brainwashed or coached Daughter into mak-
ing statements about abuse. He recommends that primary custody be
granted to Wife with liberal unsupervised visitation by Husband, and that
Daughter be seen regularly by a therapist.
Neither side is pleased with the report. The court orders custody to Wife
and limited unsupervised visitation to Husband. Subsequently, Wife files
suit for damages in federal court on behalf of Daughter against several key
actors, including the guardian ad litem. The complaint alleges violation of
Daughter's constitutional rights in failing to identify her as a sexually
abused child and to protect her from further abuse.
Guardians ad litem were seldom sued before the recent development of
the child abuse "backlash."" Even today, the number of reported cases is
few but increasing. This presents a troubling dilemma for attorneys who
serve as guardians ad litem, especially in highly charged child sexual abuse
cases. The dilemma also affects courts as judges frequently rely on guardi-
ans ad litem to carry out a variety of tasks which, if done competently,
provide the court with a substantial measure of reassurance as to the
child's status. If susceptible to suit, it is likely that fewer attorneys will be
willing to serve the court in this capacity, especially given the generally
low rate of pay.
Our guardian ad litem, scrambling to avoid Wife's claims, would like to
be able to invoke immunity of some description. Can the guardian be pro-
tected by a widened cloak of judicial or quasi-judicial immunity? The an-
swer is not particularly clear or encouraging, and begins with the roots of
judicial immunity in medieval England.

II. DEVELOPMENT OF COMMON-LAW JUDICIAL IMMUNITY

Judicial immunity traces its legal ancestry from the emergence of the
King's common-law courts in Fourteenth century England. The reign of
Edward III saw the development of the writ of error, providing a means by
which to challenge the actions of the common-law judges. Far from being
a simple route to establishing liability, use of the writ was restricted to
errors of law found within the formal case record.' The doctrine of the

8 For an excellent analysis of the child abuse backlash, see D. HECHLER, CHILD
SEXUAL ABUSE: THE BATTLE AND THE BACKLASH (1988).
9 G. HOLDSWORTH, A HISTORY OF ENGLISH LAw 234-35 (2d ed. 1937). Prior to the
writ of error, Anglo-Saxon law provided a mechanism for challenging a judgment (a
"doom") through an accusation of falsehood against the official (the "doomsman").
Known as "forsaking the doom," the result was the transmittal of the record to the
court of the superior lord. If the facts in the record were undisputed, the superior court
would proceed to address errors of law. If there were differences over findings of fact,
the petitioner retained a right to physical combat with the court's champion. The ineffi-
1989] SECTION 1983 LIABILITY 275

sanctity of the record may have been central to the development of judicial
immunity." By 1959, an English court in Green and the Hundred of Buc-
cle-Churches Case would declare that "[ffor such thing as he doth judge,
no action lieth."n
The earliest exposition of the policies served by the writ of error is that
of Lord Coke in a Court of Star Chamber proceeding, Floyd & Barker.2
Lord Coke outlined four reasons for the writ of error and the immunity it
offered. First, to permit suits against judges would encourage disgruntled
parties to bring suit, a problem that Justice Powell found compelling three
hundred years later in Pulliam v. Allen." Second, lower courts must be
independent of the scrutiny of rival courts, a significant issue for Coke,
who was seeking to establish common-law supremacy over feudal and ec-
clesiastical tribunals. Third, to allow suits against judges would jeopardize
public confidence in the common law courts. Fourth, liability of judges
would endanger independence of the judiciary so that judges would be
afraid to rule as they should for fear of subsequent suit."
As the judicial system in England solidified, the first and last of these
policies emerged as the primary support for judicial immunity at all levels
of hierarchy. The doctrine was extended to judges of inferior courts such
as the court of record, coroner and court martial." The doctrine is well
traveled, as immunity was applied to a judge in the Consular Court of
Madagascar in 1892.16 The only significant restriction of judicial immu-
nity applied consistently was for acts which were outside of the court's
jurisdiction, and that limit has a venerable pedigree. In 1613, in The Case
of the Marshalsea, immunity without jurisdiction was found to be void,

ciencies of a litigious-and belligerent-society, as well as the unpredictability of re-

sults, led to development of the writ. Block, Stump v. Sparkman and the History of
Judicial Immunity, 1980 DUKE L.J. 879, 881.
10 Zaluda, Pulliam v. Allen: Harmonizing Judicial Accountability for Civil Rights
Abuses with Judicial Immunity, 34 AM. U.L. REV. 523, 526 (1985), (citing Feinman
& Cohen, Suing Judges: History and Theory, 31 S.C.L. REV. 201, 206 (1980)). As the
Zaluda article presents a detailed chronology of English development of immunity, we
will parallel its structure.
74 Eng. Rep. 294, 294 (C.P. 1589).
1 77 Eng. Rep. 1305 (Star Chamber 1607). A common law judge of Assize presides
at a murder trial where the defendant is found guilty and sentenced to death. The
accused and friends then bring suit against the judge, alleging a conspiracy against the
accused.
I 466 U.S. 522, 546-47 (1984) (Powell, J., dissenting); Butz v. Economou, 438 U.S.
478 (1978); Pierson v. Ray, 386 U.S. 547 (1967).
1 Feinman & Cohen, supra note 10, at 267.
1 See Scott v. Stansfield, 3 L.R.-Ex. 220, 223 (1868).
16 Haggard v. Pelcier Freres, 1892 App. Cas. 61, 69.
276 PROBATE LAW JOURNAL [VOL. 9:271

thus entitling the person wronged to bring suit against the presiding
judge."
Not surprisingly, the earliest American courts to consider immunity re-
lied upon English common-law precedents. In 1804, a court in Connecticut
permitted a probate judge to be sheltered by immunity in Phelps v. Sill."
The New York Supreme Court based its holding in an 1810 case explicitly
on Lord Coke's original explication in Floyd & Barker." The United
States Supreme Court embraced traditional common-law immunity when
first presented with the question in Randall v. Brigham.2 0 An attorney,
disbarred by a superior court in Massachusetts for malfeasance, brought
suit against the justice involved. In this 1868 decision, the United States
Supreme Court harkened back to the 1613 pronouncement of the Court of
Star Chamber in The Case of the Marshalsea. To the American court,
jurisdiction was at the core of any immunity analysis. Lower courts, in its
view, possessed immunity for acts within their proper jurisdiction. Courts
of general jurisdiction, such as superior courts, were immune from prose-
cution even for acts in excess of jurisdiction, provided such acts are not
performed out of malice. 2 1
Malice survived as an immunity caveat for only three years. In Bradley
22
v. Fisher, another disciplined attorney seeking vengeance sued the judge.
The High Court established the preeminence of an independent judiciary
as the policy rationale for judicial immunity, relying squarely on the En-
glish precedents. 2 3 Distinguishing between acts performed in excess and
those performed in absence of jurisdiction, the Court declared a broad im-
munity. Actions in excess of jurisdiction, such as a criminal court declar-
ing an act not a crime to be a crime, or exceeding the maximum sentence,
were immunized completely even if done in malice. Malicious acts did not
expose a judge to liability because, otherwise, disgruntled parties would
simply fabricate claims of malice. An absence of jurisdiction, however,
such as the adjudication of a criminal case by a probate judge, would
render a judge liable.24 This jurisdictional rule is generally followed in
American courts,25 perhaps due to its relative ease of application.

" 77 Eng. Rep. 1027, 1037 (1613).

18 1 Day 315, 319, 328-29 (Conn. 1804).
19 77 Eng. Rep. at 1305, cited in Yates v. Lansing, 5 Johns. 282, 292 (N.Y. Sup. Ct.
1810), affd., 9 Johns. 395 (N.Y. 1811).
20 74 U.S. 523 (1868).

21 Id. at 532.

22 80 U.S. (13 Wall.) 335 (1871).

23 Id. at 352-53.

24 Id. at 352.
25 Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974). See also O'Neil v. City of

Lake Oswego, 642 F.2d 367, 370 (9th Cir. 1981) (immunity extends to pro tem munic-
1989] SECTION 1983 LIABILITY 277

Whatever the reason, the rule employed in Bradley has become a "seem-
ingly impregnable fortress in American U]urisprudence."26
Counsel for Wife is willing to concede the existence of the "seemingly
impregnable fortress" of judicial immunity, but points out that the post-
Civil War amendments changed the rules of engagement, thus enabling
plaintiffs aggrieved by judicial action to "breach" its walls. In order to
evaluate this contention, an examination of the section 1983 cause of ac-
tion is necessary.

III. THE SECTION 1983 CAUSE OF ACTION

A. Fourteenth Amendment Background
The trauma of civil war and the work of Congress during the era of
Reconstruction profoundly changed the landscape of American law.2 7 It
soon became clear, not many years after Appomattox, that Congress' ef-
forts to guarantee the rights of national citizenship were failing to take
root. Despite the presence of federal troops, lawlessness and private terror
were negating the significance of freedom for blacks who found they could
not rely upon state governments to vindicate their rights and protect them
from harm. State officials sanctioned and supported discrimination and vi-
olence toward blacks, as well as federal attorneys, marshalls and judges
who sought to enforce federal law. It was this combination of private ter-
ror with state inability or unwillingness to protect its citizens that was at
the heart of congressional action.28 Congress responded with the passage of
the thirteenth amendment, outlawing slavery, followed soon by the four-
teenth, with protections of due process and equal protection."
The substantive rights of national citizenship are set forth in the four-
teenth amendment. Persons born or naturalized in the United States are
citizens of the United States, entitled to the privileges and immunities of
all other citizens. With knowledge that blacks could not rely upon state
governments to vindicate their rights and protect them from harm, Con-

ipal judge in excess of jurisdiction); Harris v. Harvey, 605 F.2d 330, 336 (7th Cir.
1979), cert. denied, 445 U.S. 938 (1980) (no immunity for judge's extrajudicial dis-
crediting of a police officer in absence of jurisdiction); Williams v. Sepe, 487 F.2d 913,
914 (5th Cir. 1973) (per curiam); Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.
1972), cert. denied, 409 U.S. 1042 (1972).
2 Gregory, 500 F.2d at 62.
2 Although the Post-War amendments received the bulk of attention, the Civil War
and its aftermath changed fundamentally other areas of law wholly apart fom the civil
rights arena. See M. GROSSBERG, GOVERNING THE HEARTH (1985).
" For an excellent discussion of this period, see E. FONER, RECONSTRUCTION:
AMERICA'S UNFINISHED REVOLUTION (1988).
" U.S. CONsT. amends. XIII and XIV.
278 PROBATE LAW JOURNAL [VOL. 9:271

gress drafted the amendment to begin with the clause "[n]o state shall," so
as to make an explicit declaration of the states' obligation to respect na-
tional citizenship.
Deprivations of liberty and failure to provide equal protection of the law
had become constitutional violations, but "[n]o state" came to restrict the
scope of the amendment. What had been viewed as an affirmative obliga-
tion to protect the rights of all citizens against private terror became a
rigid requirement that only malfeasance by state officials could be actiona-
ble."o Whether or not this was a legitimate interpretation, the amendment
was construed to apply only to state wrongs.31
To remedy state wrongdoing, a statutory structure became necessary,
and section 5 of the amendment specifically charges the Congress to enact
legislation it deems appropriate to enforce the provisions of the amend-
ment. 32 The atmosphere of lawlessness and defiance of Reconstruction con-
vinced Congress of the need to act. The Civil Rights Act, passed in 1866,
preceded the fourteenth amendment by five years. The 1866 Act was en-
acted to enforce the thirteenth amendment, by barring the "badges and
3
incidences" of slavery, without mentioning state action. Section 1983 is
taken directly from the language of the 1866 Act, but became ensnared in
the state action doctrine the fourteenth amendment enacted in 1871.

B. Section 1983
In 1871, Congress enacted a statute with the avowed intent "to enforce
the Provisions of the Fourteenth Amendment."" As Justice Douglas stated
in Monroe v. Pape, section 1979, now section 1983, "was one of the means
whereby Congress exercised the power vested in it by section 5 of the

30 The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629,

638 (1882). See also H. HYMAN & W. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTI-
TUTIONAL DEVELOPMENT 1835-1875, 386 (1982).
* See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
* U.S. CoNsT. amend. XIV, 5, which reads: "The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article."
" The 1866 Act does not deal with state action, although it includes the "under
color" of state law language incorporated in the present 1983. Sections 1981 and
1982 are also part of the 1866 Act, and the state action requirement was imputed to
them until 1976, when the United States Supreme Court in Runyon v. McCrary, 427
U.S. 160 (1976), found 1981 to reach discrimination on the part of private individu-
als. That decision narrowly avoided overturning last summer as the Court had asked
for arguments to reconsider its holding in Runyon. In that case, Patterson v. McLean
Credit Union, 109 S. Ct. 2363 (1989), the court declined to abandon liability of private
individuals, but so narrowly interpreted the scope of rights to make and enforce con-
tracts as to sharply limit its efficacy.
" Act of April 20, 1871, ch. 22, 1, 17 Stat. 13 (1871-73).
 1989] SECTION 1983 LIABILITY 279
Fourteenth Amendment to enforce the provisions of that Amendment.""-
The legislative history, to the extent it is available and persuasive, supports
the view that it was the failure of state governments to deal with a condi-
tion of lawlessness as well as the need to extend fourteenth amendment
protection that led to passage of section 1983.
During debate on the statute in the House of Representatives, Represen-
tative Lowe stated that because no evidence in the records of state tribu-
nals for effective redress of federally secured rights existed, the Civil
Rights Act should afford an adequate remedy. 0 Senator Osborne declared
the state courts were not "competent to suppress local disorders."" That
state officials were liable for deprivations of federally secured rights
seemed clear to the Supreme Court in 1879 when it declared in Ex parte
Virginia that neither legislators, judges nor members of the executive
branch were permitted to deny any person within the jurisdiction of the
state equal protection of the laws."
Section 1983 provides a remedy against "[e]very person" who deprives
another of a right, privilege or immunity secured by the Constitution and
laws, if that person is acting "under color" of state law.39 In Mitchurn v.
Foster, the Court reviewed the legislative history and concluded that sec-
tion 1983 was intended by Congress to enable federal courts to protect
federal rights from unconstitutional acts under color of state law perpe-
trated by executive, legislative and judicial officials."o The provision was
seen as an independent means to enforce civil rights."'
What the courts have wrestled with since 1871 is simple to state and
susceptible to a myriad of answers. Persons acting under color of state law
are liable, but what does that mean? The Court, in Monroe v. Pape, in
quoting from an earlier opinion that had addressed the meaning of "under
color," stated that "[m]isuse of power, possessed by virtue of State law

3 365 U.S. 167, 171 (1961) (citing CONG. GLOBE, 42d Cong., Ist Sess. 68, 80, 83-
85 (1871)).
" See CONG. GLOBE, 42 Cong., Ist Sess., 374 (1871).
17 Id. at 653. For analysis of the history of
1983 immunity and judges, see Zaluda,
supra note 10, at 545.
38 100 U.S. 339, 346 (1879).

" Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in an action at law,
suit in equity, or bther proper proceeding for redress.
40 407 U.S. 225, 240 (1972) (quoting Ex parte Virginia, 100 U.S. 339, 346 (1879)).
"' Zaluda, supra note 10, at 545.
280 PROBATE LAW JOURNAL [VOL. 9:271

and made possible only because the wrongdoer is clothed with the author-
42
ity of State law, is action 'under color' of state law." The courts have
fleshed out some of the contours of the doctrine, but it is not altogether
clear what level of state sanction of an unconstitutional act triggers liabil-
ity.4 3 In Monroe, however, the Court declared the target of section 1983 to
be the use of state authority, even where the acts were not authorized by
the state and might have been forbidden by the state."
Cases involving the requisite intent for a section 1983 cause of action
shed some light on the historic aim of the statute. In a recent Supreme
Court decision, Daniels v. Williams, the Court concluded that negligence5
was an insufficient basis for a claim under the fourteenth amendment.4
Although section 1983 does not eliminate the negligence standard, a plain-
tiff must prove a violation of the underlying right." Section 1983 claims
traditionally have been those involving the deliberate misuse of power,
8
"invidious discriminatory purpose,"' or "deliberate indifference" to consti-
tutional protections.'
The Court in Daniels stressed the deliberate nature of the actions taken.
While doing so, the majority expressly left open the question of whether
reckless conduct might be sufficient."o In Davidson v. Cannon, Justices

42 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
4* While state action cases have tended toward a liberal interpretation
in cases
brought under the fourteenth amendment, see, e.g., Burton v. Wilmington Parking
Auth., 365 U.S. 715, 717 (1961), "under color" is a narrower standard, now compli-
cated by judicial immunity. See Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) (in a
joint activity, state and private, private actor acting "under color of state law"). See
also Dennis v. Sparks, 449 U.S. 24 (1980) (private parties acting jointly with state
officials are "under color" even where the state actor is protected by judicial immu-
nity). The proposition that judges are "under color" but immune is demonstrated by
the criminal liability they may incur for conspiring to deprive another of a federal right
under 18 U.S.C. 242 (1948). Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 n.7
(1970). Therefore, if not shielded to some extent, a guardian ad litem would be acting
"under color" for 1983, thus constituting state action.
"' 365 U.S. 167, 180 (1961). See also C. WRIGHT, FEDERAL COURTS, (4th ed.
1983).
45 474 U.S. 327 (1986).

4 Id. at 330.

" Note, Government Liability for Failure to Prevent Child Abuse: A Rationalefor
Absolute Immunity, 27 B.C.L. REv. 949, 959 (1986).
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
Estelle v. Gamble, 429 U.S. 95, 105 (1976).
0 Daniels, 474 U.S. at 334 n.3.
1989] SECTION 1983 LIABILITY 281

Brennan and Blackmun in dissent expressed the view that recklessness

would be sufficient, but the majority did not agree."
To a great extent, the passage of the post-Civil War amendments and
their enforcement statutes changed the rules within which lawyers and
judges discuss immunity. Much of the debate concerning section 1983 ac-
tions centered upon the degree to which the common law is adopted or
superceded by the statute." Whatever the result of that debate, there are
strong arguments that section 1983 immunity is a new arena, less firmly
attached to prior common law.
Where does that leave the guardian ad litem? Before reaching an an-
swer, it is necessary to examine immunity within the context of civil rights
enforcement against state officials.

IV. IMMUNITY IN SECTION 1983 AcTIONs

A. Eleventh Amendment/Sovereign Immunity

The fourteenth amendment, clearly aimed at state wrongdoing,
presented doctrinal difficulties for the Supreme Court in the interpretation
of the eleventh amendment, which was attributable in part to a traditional
sympathy toward sovereign immunity which predated the civil rights
amendments. As originally drafted, the eleventh amendment restricted the
jurisdiction of the federal courts by prohibiting suits brought by a citizen
of one state, or by a foreign national, against another state in federal
court.53
A major expansion in the scope of the amendment occurred in Hans v.
Louisiana," a 1890 case decided after passage of the fourteenth amend-
ment. The Court found the eleventh amendment to embody the common
law doctrine of sovereign immunity,5 5 rather than a narrow jurisdictional

5 474 U.S. 344, 349 (1986) (Brennan, J., dissenting); id. at 358 (Blackmun, J.,
dissenting).
52 See generally Beermann, A Critical Approach to Section 1983 with Special At-

tention to Sources of Law, 42 STAN. L. REV. 51 (1989).

53 U.S. CONST. amend. XI, which states: "The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Sub-
jects of any Foreign State."
" 134 U.S. 1 (1890).
5 Sovereign immunity has its origins in the common law notion that "the King can
do no wrong," noted in I W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND
244, 246 (1773). Modern defenses of the doctrine focus upon the impossibility of carry-
ing out the functions of government. The federal government, as well as that of many
states, has repealed sovereign immunity in many situations through the Federal Tort
Claims Act, 28 U.S.C. 2674 (1981), and similar enactments.
282 PROBATE LAW JOURNAL [VOL. 9:271

restriction. Therefore, suits by a citizen against her own state also would
now violate this newly constitutionalized sovereign immunity.5 6
Although not a civil rights enforcement case, Hans created an apparent
conflict. If the purpose of the fourteenth amendment is to require state
officials to protect the rights of national citizenship, and section 5 autho-
rizes laws for enforcement, but the eleventh amendment serves to shield
those officials, strict adherence to the eleventh amendment would eliminate
any compulsion to obey federal constitutional commands.57 That the Su-
preme Court often has difficulty delineating the scope of this immunity is
apparent in the marked tension between two strands of eleventh amend-
ment decisions.
In Fitzpatrick v. Bitzer," a 1976 case brought under Title VII of the
Civil Rights Act of 1964, the Court set out the classic civil rights override
argument for eleventh amendment immunity:
[T]he Eleventh Amendment, and the principle of state sovereignty it
embodies . . . are necessarily limited by the enforcement provisions of
5 of the Fourteenth Amendment ... . When Congress acts pursuant
to 5, not only is it exercising legislative authority that is plenary
within the terms of the constitutional grant, it is exercising that au-
thority under one section of a constitutional amendment whose other
sections by their own terms embody limitations on state authority.5"
Under this interpretation, a fourteenth amendment enforcing statute like
section 1983 would override an eleventh amendment immunity or sover-
eign immunity. 0

" Hans, 134 U.S. at 15.

17 The courts have always been uncomfortable with immunity, with the enforced
inability to obtain redress. United States v. Lee, 106 U.S. 196, 220 (1882) (no man is
above the law and government officials must obey the law); Marbury v. Madison, 5
U.S. (1 Cranch) 137, 163 (1803) (right to seek a remedy for injury is at the essence of
liberty). Liability of state officials has also been hotly debated. Olmstead v. United
States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting) (government officials are
subject to the same lawsas private citizens); Osborne v. Bank of the United States, 22
U.S. (9 Wheat.) 738, 859 (1824) (state officers are not immune from federal law).
State courts are, of course, obligated under the Supremacy Clause to enforce federal
law, Testa v. Katt, 330 U.S. 386 (1947); Martin v. Hunter's Lessee, 14 U.S. (1
Wheat.) 304 (1816), but because the immunity can involve judges, this protection may
be illusory.
-8 427 U.S. 445 (1976).
59 Id. at 456. See also Hutto v. Finney, 437 U.S. 678, 693-94 (1978) (a 1983 and
a 1988 case holding that Congress intended to override the eleventh amendment im-
munity of the states in the Civil Rights Attorney's Fees Awards Act of 1976, 42
U.S.C. 1988).
so For a critique of the binary approach to the reach of federal power in the tenth
and eleventh amendment analysis, see Macurdy, The Scope of Congressional Power to
1989] SECTION 1983 LIABILITY 283

The other perspective in the Court's struggle with immunity is centered

upon forms of relief. In 1908, the Supreme Court sought to lessen the
harshness of the eleventh amendment barrier in Ex parte Young. Reaf-
firming the vitality of the eleventh amendment, the Justices opened a small
gateway to state liability. If a plaintiff were to sue a state officer for the
enforcement of an unconstitutional state statute, the officer would be, in
effect, deemed not only a probate party for purposes of immunity, but also
a state actor covered by the state action requirement. The Court declared
that a suit against a state official for actions taken under an unconstitu-
tional state statute is not a suit against the state.62
In 1974, the case of Edelman v. Jordan changed the focus in eleventh
amendment analysis to the form of relief sought, building upon the doc-
trine in Young." Creating a distinction between retroactive monetary re-
lief and prospective injunctive relief, the Court ruled that the eleventh
amendment bars a suit in federal court by private parties seeking damages
that would be paid from the state treasury. In so doing, the Court reaf-
firmed applicability of injunctive relief to state officials but also furthered
the idea that suits to enforce federally secured rights are permitted only
where the state itself is not directly damaged."
Although there was subsequent uncertainty regarding the principle set
forth,6 5 the Supreme Court reiterated its support for the retroactive-pro-
spective analysis in Quern v. Jordan, which was a sequel to the litigation
in Edelman." The Court declared that, "neither logic, the circumstances
surrounding the adoption of the Fourteenth Amendment, nor the legisla-
tive history of the 1871 Act compel[], or even warrant[] . . . the conclusion
that Congress intended by the general language of the Act to overturn the

Affect the States: An Historical Perspective, 1986 (unpublished manuscript on file at

the Editorial Offices of the National College of Probate Judges).
* 209 U.S. 123 (1908).
62Id. at 168.
* 415 U.S. 651 (1974).
" Id. at 667-68. See also Mingle, Vitality of States' Eleventh Amendment Immu-
nity and Other Sec. 1983 et seq. Defenses, 6 J. C. & UNIV. LAw 57 (1980).
*5 This confusion was created by three subsequent decisions: Hutto v. Finney, 437
U.S. 678 (1978) (Congress intended to override the eleventh amendment immunity of
the states in the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988);
Monell v. New York City Dep't of Social Serv., 436 U.S. 658 (1978) ( 1983 case in
which municipalities and local governments were deemed not to be part of the state for
eleventh amendment purposes); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Title VII
case holding that back pay and attorney fee awards were not precluded by the eleventh
amendment in light of congressional authority for suit). For a discussion of the dispar-
ity between the reach of federal legislative and judicial powers, see Macurdy, supra
note 60.
* 440 U.S. 332 (1979)
284 PROBATE LAW JOURNAL [VOL. 9:271

constitutionally guaranteed immunity of the several States." 7 Because sec-

tion 1983 does not indicate on its face, "explicitly and by clear language,"
nor in its history that Congress intended to "abrogate the Eleventh
Amendment immunity of the States,"" the court decided Edelman
correctly.
In sum, the eleventh amendment remains a barrier to section 1983 suits
against states and state agencies for retroactive monetary relief. Statutes
will not be construed to override the eleventh amendment unless Congress
has been explicit, clear and unequivocal about doing so, and it was not for
section 1983.69 In addition, it is apparent that section 1983 is not directed
toward states, agencies or officers sued in their official capacities. Thus
judges and guardians ad litem are arguably immune from prosecution
under the eleventh amendment.

B. Judicial Immunity Under Section 1983

The eleventh amendment immunity which protects state officials from

the reach of the civil rights laws presents the precise dilemma which arises
in the judicial immunity area. To what degree do the fourteenth amend-
ment and civil rights enactments like section 1983 change the immunities
of state officials? As Professor Zaluda stated:
Although Congress intended section 1983 to reach all state actors, in-
cluding state judges, it presented the federal courts with a conflict
between the traditional concept of judicial immunity, and civil liabil-
ity for state judges who violate an individual's civil rights. The Su-
preme Court has traditionally reconciled the conflict by upholding the
common-law doctrine of judicial immunity, even in light of section
1983 violations. 7

To evaluate this position, the appearance of judicial immunity in section

1983 cases is considered.
The Third Circuit was the first federal court to address immunity in this
context in 1945 in Picking v. Pennsylvania Railroad." A state judge was
found to have knowingly and unlawfully issued an arrest warrant based
upon false pleadings. The court declared that no immunity existed, even in

* Id. at 342 (footnote omitted).

8 Id. at 345.
69 Congress also must be explicit regarding its intent to render a statute as one en-
forcing the fourteenth amendment through 5. See Atascadero State Hospital v. Scan-
lon, 474 U.S. 64 (1985); Green v. Mansour, 474 U.S. 64 (1985).
70 Mingle, supra note 64, at 61.

7' Zaluda, supra note 10, at 524 (footnote omitted).

72 151 F.2d 240 (3d Cir. 1945).
1989] SECTION 1983 LIABILITY 285

an action for damages where the judge had abused civil rights." By 1949,
two other circuits had endorsed a no-immunity rule in actions to enforce
fourteenth amendment rights,7" although the Tenth Circuit dissented. In
an opinion echoing the jurisdiction and malice standards in Randall, the
Tenth Circuit asserted that immunity would fail only if there was an un-
constitutional state procedure which was instituted solely for the purpose
of depriving one of property without due process."
The Supreme Court first addressed section 1983 immunity in a 1951
decision, Tenney v. Brandhove." In Tenney, Brandhove brought suit
against a legislative committee alleging violation of his civil rights in con-
nection with its investigation of subversion." The Court firmly upheld leg-
islative immunity. Because Congress was such "a staunch advocate of leg-
islative freedom," it could not have intended to impinge upon that right,
absent an express declaration." Thus, government officials exercising legis-
lative functions were deemed absolutely immune from suits for damages
under section 1983."
In a case stemming from the civil rights protests in the South in the
1960's, the Supreme Court first explicitly supported judicial immunity for
cases brought under section 1983. Pierson v. Ray involved a group of black
and white clergy which was arrested for breach of the peace while at-
tempting to use a segregated bus terminal in Jackson, Mississippi during a
prayer pilgrimage to promote integration."o The clergy sued for false im-
prisonment after the verdict was directed in their favor. The Court refuted
the contention that the judge forfeited immunity, as it found no congres-
sional intent to make state judges liable. In order for a court to find such
congressional intent, Congress must have stated such an intention ex-

" Id. at 250-51.

" McShane v. Moldovan, 172 F.2d 1016, 1023 (6th Cir. 1949) (damages against
state judges permissible in enforcing fourteenth amendment rights); Burt v. City of
New York, 156 F.2d 791, 793 (2d Cir. 1946) (the Civil Rights Act tolls immunity as
defined by the district court below).
7 Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948).
78 341 U.S. 367 (1951).

" The committee, headed by California legislator Edwin Tenney, was charged with
investigating un-American activities, parallel to the congressional hearings under
United States Senator Joseph McCarthy.
78 Tenney, 341 U.S. at 376. See also Zaluda, supra note 10, at 530. The courts of

appeals next applied immunity to judges. See Pate v. Arnold, 223 F.2d 782, 785-86
(8th Cir. 1955). See also generally Bauer v. Heisel, 361 F.2d 581, 587-88 (3d Cir.
1966), cert. denied, 386 U.S. 1021 (1967).
79 Id. at 379. See also Supreme Court of Virginia v. Consumers Union, 446 U.S.

719, 731-34 (1980) (judges absolutely immune from damages, injunctions and declara-
tory relief for legislative functions).
so 386 U.S. 547 (1967).
286 PROBATE LAW JOURNAL [VOL. 9:271

pressly. In dissent, Justice Douglas declared that he found ample legisla-

tive history supporting liability for judges," and that at the very least,
judges should be liable for a "knowing and intentional deprivation of a
person's civil rights.""
The year 1977 marked the return to the immunity standard of The
Marshalsea and Bradley, providing immunity except when a "clear ab-
sence of all jurisdiction" was found. In Stump v. Sparkman," a judge of
the Indiana Circuit Court ordered, upon the affidavit of plaintiff's mother,
that a tubal ligation be performed on plaintiff, a minor child. In a subse-
quent suit under section 1983, the federal court of appeals found a lack of
jurisdiction and procedural errors, and therefore immunity did not apply.
The Supreme Court examined the immunity claim and found the only
issue to be whether the Indiana court had jurisdiction. The mere presence
of procedural errors did not, of itself, defeat immunity." Under Bradley,
the scope of jurisdiction must be viewed broadly for the purpose of deter-
mining a judge's immunity. 5 A broad view of jurisdiction, coupled with an
insistence that only the lack of jurisdiction can deprive a judge of immu-
nity, provide a powerful defense and a deterrent to the bringing of civil
rights actions."
In 1984 the Supreme Court reopened the door to some extent in Pul-
liam v. Allen.87 Allen and others were arrested for nonjailable misdemean-
ors. When they were unable to meet the bail imposed by Pulliam, a Vir-
ginia magistrate, they were confined to jail. In a subsequent section 1983
action, the federal district court enjoined the practice and awarded attor-
ney's fees under the Civil Rights Attorney's Fees Awards Act.
The Supreme Court held that judicial immunity does not bar prospec-
tive injunctive relief against a judicial officer acting within official capac-
ity. Justice Blackmun adhered to the traditional common law for author-
ity, although he came out against immunity. The majority recognized a
parallel to the prospective injunctive relief which was available in the
King's prerogative writ in England to exercise control over its rival
courts. 8 For Justice, Blackmun, the extent to which courts have relied

81 Id. at 558-63 (Douglas, J., dissenting).

82 Id. at 566.
83 435 U.S. 349 (1978).
84 Id. at 356.
85 Id.
88 For evidence of the sweep of immunity across civil rights enforcement, see O'Shea
v. Littleton, 414 U.S. 488, 503 (1974) (extends immunity to a judge's deprivation of
equal protection to a racial minority).
87 466 U.S. 522 (1984).
88 Id. at 532-33.
1989] SECTION 1983 LIABILITY 287

upon common law practice to shape the doctrine of judicial immunity

made the use of these writs highly relevant.89 Declaring that a rule of ab-
solute judicial immunity from prospective relief has never existed, Justice
Blackmun outlined the other judicial policies that would protect against
abuses in injunctive relief. 90
The problem which Justice Powell does not squarely address in his dis-
sent is that the common law practice does not confront in any functional
way either the complex role of court in the new spheres of family life or
the transforming nature of the fourteenth amendment in the legal life of
America. The common law roots of immunity inform us as to the policies
served by immunity, but the decision to protect an official must be made
with regard to the different role played by a guardian ad litem and the
need for the judicial system to uphold federally secured rights.
The provision for attorney's fees to the prevailing party pursuant to sec-
tion 1988 is a disturbing one to a guardian ad litem. The guardian, like a
judge on the bench, may be forced to absorb huge fee liability in addition
to the cost of her own defense. Justice Blackmun noted that Congress has
clearly extended the availability of attorney's fees to all circumstances
where section 1983 liability attaches.91 Although this may seem irrefuta-
ble, the necessity of the guardian's functions to the welfare of troubled
children necessitates a narrow window of section 1983 coverage.
The effect the Pulliam decision has upon nonjudicial actors sued under
section 1983 remains unclear. That decision did not expressly disturb the
principle in Imbler v. Pachtman,92 a 1976 decision that addressed the sec-
tion 1983 liability of a state prosecutor for initiating a criminal prosecu-
tion. The Court in Imbler held that the prosecutor was absolutely immune
because the acts complained of were "intimately associated with the judi-
cial phase of criminal process." 3 Though indicative of a "functional" ap-
proach, the Court did not clearly delineate the category of acts which war-
rant absolute immunity. Indeed, the Eighth Circuit declined to consider
whether a prosecutor's administrative and investigatory activities are abso-
lutely immune from section 1983 liability.
Thus, in Higgs v. District Court, the Colorado Supreme Court, citing
Imbler, affirmed an award of $200,000 in punitive damages against two

89 Id. at 536.
9o Id. at 536-43.
9' Id. at 543-44.
92 424 U.S. 409 (1976).
3 Id. at 430.
"See Smith v. Udegraff, 744 F.2d 1354 (8th Cir. 1984) (prosecutors enjoy absolute
immunity for prosecutorial but not administrative or investigatory functions).
288 PROBATE LAW JOURNAL [VOL. 9:271

deputy district attorneys under section 1983." The plaintiff alleged several
pretrial transgressions by the deputy district attorneys. The defendants
moved to dismiss the section 1983 claims against them, arguing that as
prosecutors they were absolutely immune from liability for any investiga-
tory activity necessary to make a decision whether to prosecute. The Colo-
rado Supreme Court held for the plaintiff, deciding that the deputies' pre-
trial activities were "investigatory" rather than "advocatory" in nature,
and therefore did not merit absolute immunity."
While absolute immunity is limited to a small number of governmental
functions (e.g., those closely related to the judicial process), qualified im-
munity applies to a broad scope of functions including those in the execu-
tive branch. Qualified immunity provides protection from personal liability
for a "good faith" constitutional or statutory violation.97 Left with quali-
fied immunity, the Higgs defendant-officials were found liable for their
"wanton and reckless disregard of [Higgs'] rights and feelings.""
In Harlow v. Fitzgerald,decided in 1982, the Supreme Court indicated
that government officials performing "discretionary" functions were enti-
tled to limited qualified immunity if the challenged conduct "d[id] not vio-
late clearly established statutory or constitutional rights of which a reason-
able person would have known." 99 The Court further stated that qualified
immunity would turn "primarily on objective factors," such as, the "objec-
tive reasonableness of an official's conduct as measured by reference to
clearly established law.""oo The Court concluded that "[w]here an official
could be expected to know that certain conduct would violate statutory or
constitutional rights, he should be made to hesitate.""o'
Since Harlow, the Supreme Court has provided additional guidance in
Briscoe v. LaHue.10 2 Relying upon the holding in Butz v. Economou,1 "o

" 713 P.2d 840 (Colo. 1985). This case was preceded by a criminal action against
plaintiffs for burglary, sexual assault and criminal trespass. Higgs was acquitted on all
charges, and then filed a 1983 action.
Id. at 853-58.
" See Wood v. Strickland, 420 U.S. 308 (1975) (public school officials); Scheuer v.
Rhodes, 416 U.S. 232 (1974) (state governors); Pierson v. Ray, 386 U.S. 547 (1967)
(police officers). Such persons, however, will be accorded absolute immunity if the be-
havior in question is closely related to the judicial process.
98 Higgs, 713 P.2d at 862-63.
99 457 U.S. 800, 818 (1982). Prior to Harlow, a defendant had to satisfy both an
objective standard-that the defendant did not know and should not reasonably have
known that his conduct violated plaintiff's constitutional rights-and a subjective show-
ing of no malicious intent. In Harlow, the Court eliminated the subjective test.
100 Id. at 819.
101 Id.
102 460 U.S. 325 (1983).
10 438 U.S. 478 (1978) (absolute immunity extended to federal agency officials who
1989]1 SECTION 1983 LIABILITY 289

and Imbler, the Court held that witnesses and other persons who perform
functions integral to the judicial function are entitled to absolute
immunity.10
Is a court-appointed guardian ad litem considered to be functioning in a
judicial or quasi-judicial capacity? The answer, almost assuredly, is "yes"
based upon Briscoe and lower court rulings to date on guardians ad litem
as defendants in section 1983 actions."o' These decisions would render a
guardian ad litem absolutely immune from liability.
In 1984, the Sixth Circuit specifically addressed the immunity of guard-
ians ad litem in Kurzawa v. Mueller.'0 6 Parents sought the help of the
state in controlling their son, but their parental rights were subsequently
terminated due to alleged parenting deficiencies. The termination decision
0
was subsequently reversed by the Michigan Court of Appeals.o' The child
was released to his parents who filed a section 1983 action which named a
psychiatrist, social worker, supervisor of county protective services, the
guardian ad litem for the child, and others.
The Sixth Circuit, on appeal from the federal district court, upheld its
findings that all defendants were entitled to absolute immunity, citing
Briscoe, Butz and Imbler.s0 8 The court's opinion was brief, and offered
little of the factual analysis seen in some of the other immunity cases.
However, in considering the guardian ad litem, the court stated:
Baldwin . . . who functioned as guardian ad litem for Cass Kurzawa,
must act in the best interests of the child he represents. Such a posi-
tion clearly places him squarely within the judicial process to accom-
plish that goal. A guardian ad litem must also be able to function
without the worry of possible later harassment and intimidation from
dissatisfied parents. Consequently, a grant of absolute immunity
would be appropriate. A failure to grant immunity would hamper the
duties of a guardian ad litem in his role as advocate for the child in
the judicial proceedings. 0 9

perform duties analogous to those of a prosecutor). The Butz decision gave rise to so-
called "functional analysis" where complained-of behavior is compared to typical judi-
cial functions to determine the degree of immunity to be applied.
104 Some lower courts have limited Briscoe's witness immunity to testimony at trial.
See, e.g., Krohn v. United States, 742 F.2d 24, 31 (1st Cir. 1984) (Briscoe does not
apply to a law enforcement officer who allegedly made intentional misrepresentations in
a search warrant affidavit).
'1 See, e.g., Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984); In re Scott County
Master Docket, 618 F. Supp. 1534 (D.C. Minn. 1985).
106 732 F.2d at 1458.
107 Id. at 1457.
108 Id. at 1458.
1o Id.
290 PROBATE LAW JOURNAL [VOL. 9:271

A guardian ad litem was found absolutely immune in In re Scott County

Master Docket, a section 1983 action decided in 1985.10 Following dis-
missal of criminal indictments, parents charged with sexually abusing their
children brought suit against the county, court attorney, sheriff, deputy
sheriffs, therapists, guardians ad litem, county department of human ser-
vices, the director of a halfway house in which the child stayed, a doctor
who examined some of the children, and numerous others.
Plaintiffs alleged, inter alia, a failure on the part of the guardians ad
litem to protect the children against repeated "interrogation" by, and par-
ticipation in civil conspiracy with, the county attorney and others. All de-
fendants moved for dismissal and/or summary judgment under various
theories of immunity.
The district court denied most of these motions, including the county
attorney's, although it did find the guardians ad litem absolutely immune
from suit. The court based its ruling as to the guardians on Briscoe, which
entitled those performing functions integral to the judicial process to abso-
lute immunity from damage liability under section 1983, and on Kur-
zawa."' Noting that the Minnesota statute requires the appointment of a
guardian ad litem in neglect or dependency proceedings, the court invoked
the position of the Minnesota Supreme Court that a guardian ad litem is
an officer of the appointing court and is subject to the orders and direc-
tions of that court. The court rejected the plaintiffs' contention that the
guardians ad litem undertook an investigatory role and, in so doing, acted
beyond the scope of their duty."1 2 The contention of conspiracy was simi-

11 618 F. Supp. 1534 (D.C. Minn. 1985).

"1 Id. at 1572-73.
"1 Id. at 1573. Concerning the evaluating therapists, the court found that those who
were court-appointed were absolutely immune. Id. at 1575. However, the court found
that those not court-appointed, specifically those asked to conduct evaluations by the
county department of human services, were not immune. Id. at 1576. The court dis-
agreed with Kurzawa's broad treatment of Briscoe, which treated all parties who pro-
vided information to an agency charged by a court to collect information as absolutely
immune because they were integral components of the judicial process. Id. at 1572.
The court construed Briscoe as limited to trial testimony only and denied a grant of
absolute immunity. Id. at 1572-73. Summary judgment on the issue of qualified immu-
nity was denied based on plaintiffs' allegation that the non-court-appointed therapist
contributed to the infringement of a family's clearly established right to remain to-
gether as a unit. Id. at 1578.
1989] SECTION 1983 LIABILITY 291

larly rejected, being insufficient to defeat absolute immunity."

On appeal, the U.S. Court of Appeals for the Eighth Circuit construed
plaintiffs' contentions less favorably, and considered the allegations to be
extraordinary and lacking in substantiation." Most significantly, the court
granted the county attorney summary judgment. Citing Imbler, the court
concluded that claims against the county attorney were barred by absolute
immunity "because they represent an effort to impose liability for her role
in initiating adversarial proceedings and presenting the prosecutor's
case."" 6 The court emphasized that not all interrogation of witnesses or
securing of evidence is necessarily investigative "police work" when con-
ducted by a prosecutor and, therefore, the prosecutor in this case should
not be denied absolute immunity.'
As for the guardian ad litem, the therapists, and the court-appointed
attorney, the court found that "[t]he acts which these persons performed,
attending court appearances, making recommendations to the family court,
questioning children about their version of events, and reporting state-
ments and opinions concerning abuse, were expressly or implicitly within
their professional duties.""' The court also noted that very few facts ac-
companied plaintiffs' complaints against this group of defendants. More-
over, the court reasoned that, at the very least, these defendants were pro-

The county attorney was denied absolute immunity based on plaintiffs' allegations
that at least some of her actions were investigatory rather than prosecutorial in nature.
Id. at 1554. Qualified immunity was denied because plaintiffs asserted that she violated
clearly established rights. Id. at 1558.
"s Id. at 1573. While cautiously supportive of the district court's result, we remain
unsure that there are no forms of conspiracy sufficient to overcome absolute immunity.
Given a high evidentiary threshold to sustain a motion to dismiss, establishing a pattern
of collusion, or racially motivated disparate treatment, a window, such as that opened
in Pulliam, may be acceptable.
"' Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987).
n1 Id. at 1447.

"i6 Id. at 1449. The court did not grant the county attorney absolute immunity for
her role in assisting civil authorities to remove the children from their homes because
this function was not related to the initiation, preparation and prosecution of a criminal
case. Id. at 1462 n.20. She was, however, entitled to qualified immunity, as were the
law enforcement personnel involved, as her conduct was (a) objectively reasonable
under the circumstances, id. at 1463, and (b) she violated no clearly established consti-
tutional standards in interviewing the children and being involved in their removal, id.
at 1466. The court stated: "[wie therefore conclude that there was, at a minimum, a
legitimate question concerning the legality of hastily removing minor children from the
plaintiffs' custody upon the arrest of one or both parents for sexually abusing other
children." Id. at 1463.
u1 Id. at 1453.
292 PROBATE LAW JOURNAL [VOL. 9:271

tected by qualified immunity for their part in questioning the children."' 8

In the alternative, the court concluded that the defendants were entitled to
absolute immunity because questioning the children was within the scope
of their authority and was an integral part of the judicial process which, in
the case below, was foremost in determining whether the children had
been maltreated." 9

V. STATE LAW CAUSES OF ACTION

Only brief mention of state law causes of action is necessary. The most
common claim is one arising out of the law of negligence. In the few cases
involving liability of a guardian ad litem in the state courts, none permit-
ted such suits. Typical of these cases is Tindell v. Rogosheske, decided by
the Minnesota Supreme Court in September of 1988.120 The guardian was
sued for negligence in failing to carry out his duties. Viewing the role of
the guardian ad litem, the court noted that the goal of furthering the best
interest of the child necessitates freedom for the guardian to engage in a
vigorous and autonomous representation. "Immunity is necessary to avoid
harassment from disgruntled parents who may take issue with any or all of
the guardian's actions."' 21
In prior proceedings in Tindell, the Minnesota Court of Appeals had
looked to federal cases such as Kurzawa and Scott County. In its words,
the court of appeals found that:

us Id. at 1466. Qualified immunity can be defeated by a showing that the conduct
in question "so exceeded clearly established legal norms for this function that reasona-
ble persons . . . would have known their conduct was illegal." Id. at 1460. The court
concluded that in 1984 the standards for questioning juvenile witnesses and victims in
sexual abuse cases were not so well established that interrogators were required to con-
form their questioning to a certain methodology. Id.
119 Id. at 1467. The court was less sure whether absolute immunity attached to the

defendants for reporting the results of their inquiries to law enforcement personnel. Id.
Completely private actors reporting abuse may be able to claim their conduct did not
occur "under the color of state law," though this is a more difficult argument to sustain
for court appointed officials. Id. As for the damage claims related to court testimony,
including reports and written recommendations, the court, citing Briscoe, found abso-
lute immunity. Id.
The court of appeals rejected the plaintiffs' claims that the defendants engaged in
grossly negligent conduct. Id. at 1468. Citing Daniels v. Williams, 474 U.S. 327
(1986), the court noted that "negligent conduct by state actors does not implicate any
aspect of the due process clause" and thus cannot serve as a cause of action under
1983. While the statement sweeps more broadly than is comfortable for some of us,
there clearly should be a high standard of proof of malfeasance to protect the integrity
of the guardian ad litem function.
120 428 N.W.2d 386 (Minn. 1988).

121 Id. at 387.

1989] SECTION 1983 LIABILITY 293

In advising whether a settlement agreement is in the best interests of

a child, guardians ad litem frequently must rely on incomplete facts
and base their advice on a variety of legal and non-legal factors, some
of which may conflict. Removing immunity would impair the judicial
process by discouraging guardians ad litem from advising settlement,
and the[ir] energies . . . would be diverted toward anticipating law-
12 2
suits rather than protecting the true interests of children.
State courts seem to look to section 1983 immunity cases for guidance in
this area, thus rendering the federal court decisions in Kurzawa and Scott
County national precedents in immunity for guardians ad litem. When the
courts fail to protect guardians ad litem from liability, state legislatures
must provide this protection.

VI. CONCLUSIONS

In children's law issues, the guardian ad litem performs indispensable

duties vital to providing the judge with independent assessments of the
true welfare of the child and the child's "best interests." As such, the
guardian must be accorded an immunity nearly as protective as judicial
immunity in order to ensure the integrity and functioning of the judicial
system. That immunity is firmly rooted in the Briscoe line of cases.
Although the terminology of absolute-qualified immunity fails to address
the delicate balance between access to state officials for civil rights viola-
tions and the need for guardians, the present state of immunity doctrine
clearly permits immunity from section 1983 liability for functions integral
to the judicial process, thus assuring the free rendering of decisions for
efficient operation. Pulliam places boundaries on this immunity, permitting
suits for prospective relief under section 1983. While this decision poses
some problems, they are somewhat mitigated by the fact that actions
brought against guardians ad litem typically seek damages, retrospective
relief not redeemed by the holding in Pulliam. As most suits brought
against guardians ad litem seek damages, Pulliam is of limited utility in
such cases, although defendants still face legal action and expense.

122 421 N.W.2d 340, 342 (Minn. Ct. App. 1988) (citation omitted).