We have written before about Guardians ad litem (GALs), and even about judicial immunity. The confluence of those two concepts came up again this week in a new (though unreported) Arizona case on judicial immunity for GALs.
A little background
Arizona has permitted appointment of a “guardian ad litem” (almost always referred to as a GAL) for decades. In recent years, the probate courts shifted away from the term in favor of “statutory representative.” Last year, though, the legislature returned to the GAL designation. But nothing changed about the concept.
Meanwhile, even as probate courts moved (temporarily) away from the term GAL, other types of courts embraced the old-fashioned concept. In divorces, child custody battles and juvenile proceedings, it has become increasingly common for courts to appoint a guardian ad litem. That practice has grown, though the definition of the role has remained largely undefined. Also unclear: what findings must the court make before appointing a GAL?
One key principle: a GAL should act in the “best interests” of the person they’ve been appointed to protect. That means they might sometimes do things that the person disagrees with.
But is there immunity for GALs?
Lawyers appointed as guardian ad litem hope that they hold quasi-judicial positions. Why? So that they can enjoy “judicial immunity” for their actions. That would help simplify the GALs life, and make the role easier to complete.
Judicial immunity would allow the court-appointed GAL to act as an arm of the court, without concern about repercussions outside the courtroom. Just like the judge herself, the GAL could stop looking over their shoulder for outside liability.
An earlier Arizona Court of Appeals case cast doubt on the judicial immunity notion. In 2019, the appellate court ruled that judicial immunity for GALs was not absolute. But then the Arizona Supreme Court cast the question back into confusion. The state high court “depublished” the Court of Appeals decision. That meant it could no longer be cited as precedent — though the outcome in that case remained unchanged.
Now along comes a new case involving judicial immunity for GALs. This time the result seems clearer — though this case is unpublished to start with. That means it can’t be cited for its precedential value, either.
Still, the Court of Appeals in Arizona seems to be evolving in its thinking. Guardians ad litem should increasingly feel comfortable that their decisions are subject to review in the proceeding where they have been appointed, but not in a subsequent lawsuit by the affected parties.
The facts of the case
The new Arizona decision comes from a divorce case, Marriage of Chalmers v. Chalmers. The facts of that case are described in an unpublished opinion based on a 2019 appeal by Mr. Chalmers. Basically, the divorce court judge, worried that Mr. Chalmers might not be able to understand his choices or act in his own interest, appointed a GAL to represent that interest. Later, the probate court appointed a conservator to sign the necessary documents and handle the divorce proceeds. Mr. Chalmers did not like the outcome; the Court of Appeals affirmed the divorce court rulings and procedure.
Then Mr. Chalmers sued his own attorney, his conservator and the conservator’s attorney, and the GAL. The trial court dismissed the lawsuit as to the GAL, ruling that he was a quasi-judicial officer and so enjoyed judicial immunity. That left the other defendants in place, but Mr. Chalmers appealed the ruling against him.
Last week the Arizona Court of Appeals upheld the dismissal. The GAL was, in fact, a quasi-judicial figure, according to the appellate court. That outcome — a stark contrast to the earlier case reported here — should give considerable comfort to GALs. Chalmers v. East Valley Fiduciary Services, December 2, 2021.
Of course, that comfort must be tempered by the fact that neither appellate decision regarding judicial immunity for GALs can be cited as precedent in other cases. It also provides no comfort to the other players in the Chalmers drama — the conservator and attorneys for the conservator and Mr. Chalmers. The outcomes of those claims will await further proceedings in the underlying court case.