G. Keith Gambrel v. Paul Croushore, in His Capacity as Next Friend of Each Sophia Villareal, a Minor and Spencer Villareal, a Minor ( 2021 )


Menu:
  •                         RENDERED: JUNE 25, 2021; 10:00 A.M.
    TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2020-CA-0881-MR
    G. KEITH GAMBREL AND THE
    GAMBREL FIRM, LLC                                                                  APPELLANTS
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.               HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CI-00927
    PAUL CROUSHORE, IN HIS
    CAPACITY AS NEXT FRIEND OF
    EACH OF SOPHIA VILLARREAL, A
    MINOR AND SPENCER
    VILLARREAL, A MINOR1                                                                    APPELLEE
    OPINION
    REVERSING AND REMANDING
    ** ** ** ** **
    BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.
    ACREE, JUDGE: G. Keith Gambrel appeals the Campbell Circuit Court’s June
    18, 2020 order denying his motion to dismiss a legal malpractice claim against
    1
    In the notice of appeal, the children’s last name, Villarreal, is incorrectly spelled “Villareal.”
    We will use the correct spelling in this Opinion. An order was entered on June 10, 2021, to
    reflect the correct spelling of the children’s name.
    him. His motion to dismiss was based on his claim of quasi-judicial immunity for
    actions he took as a court-appointed guardian ad litem (“GAL”). Upon careful
    consideration, we conclude Gambrel was cloaked with absolute quasi-judicial
    immunity and reverse and remand with instructions to dismiss the action.
    BACKGROUND AND PROCEDURE
    The genesis of this matter is a custody dispute between Alexandra
    Lawson (“Mother”) and her former husband, Spencer Villarreal (“Father”) relative
    to their two minor children. The family resided in Indiana when a court of that
    state entered the parties’ divorce decree, including the custody determination.2
    Subsequent to the divorce, the parties independently relocated with their children
    to Campbell County, Kentucky.
    In May 2014, Mother registered the Indiana decree and custody
    determination with the Campbell Circuit Court and simultaneously sought an order
    authorizing the relocation of the children to Mississippi. Father opposed the
    motion. Pursuant to FCRPP3 6(2)(e), the court appointed Gambrel as GAL of the
    two children. The circuit court granted Mother’s motion and authorized the
    relocation.
    2
    The parties were awarded joint custody with Mother named as the children’s primary custodial
    parent.
    3
    Family Court Rules of Procedure and Practice.
    -2-
    In 2018, Father moved to modify the custody agreement. He asked
    the court to re-designate him as the children’s primary custodial parent and for
    return of the children to Campbell County; he alleged Mother failed to act in good
    faith in co-parenting the children. Again, Gambrel served as the court-appointed
    GAL. Gambrel argued that re-designating Father as the primary residential
    custodian and relocating the children to Campbell County was in the children’s
    best interests. (Trial Record “T.R.” at 76). In exercising his statutory duty,
    Gambrel filed motions and introduced evidence supporting that position. (T.R. at
    263). He noted that neither child voiced a preference between their parents as
    primary residential custodian. (T.R. at 76). In addition, he presented evidence that
    Mother had not made good decisions regarding the son’s education and that the
    schools in Campbell County would better accommodate his educational needs.4
    The circuit court granted Father’s motion.
    Mother filed emergency motions for reinstatement as the children’s
    primary residential parent alleging Gambrel committed malpractice. She sought
    Gambrel’s removal as GAL. The motions were denied. (T.R. at 146-47).
    Paul Croushore, in his capacity as next friend of the Villarreal
    children, filed this action against Gambrel claiming he committed legal negligence
    4
    The son has dyslexia, dysgraphia, and attention deficit hyperactivity disorder. (T.R. at 73).
    -3-
    in the way he performed his duties as GAL.5 In response, Gambrel filed a motion
    pursuant to CR6 12.02(f) to dismiss the case for failure to state a claim upon which
    relief may be granted, asserting he was cloaked with absolute quasi-judicial
    immunity. The circuit court denied the motion. “[A]n order denying a substantial
    claim of absolute immunity is immediately appealable even in the absence of a
    final judgment.” Maggard v. Kinney, 
    576 S.W.3d 559
    , 564 (Ky. 2019) (internal
    quotation marks and citation omitted). Gambrel then brought this appeal.
    STANDARD OF REVIEW
    “[A] court should not grant . . . a motion [to dismiss for failure to state
    a claim] ‘unless it appears the pleading party would not be entitled to relief under
    any set of facts which could be proved . . . .’” Fox v. Grayson, 
    317 S.W.3d 1
    , 7
    (Ky. 2010) (quoting Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU,
    AFL-CIO v. Kentucky Jockey Club, 
    551 S.W.2d 801
    , 803 (Ky. 1977)). Such a
    motion “admits as true the material facts of the complaint.” 
    Id.
     (quoting Upchurch
    5
    The complaint alleged Gambrel failed to exercise the requisite degree of care and skill by: (1)
    failing to advise the children concerning his role in the custody proceedings; (2) failing to inform
    the children concerning all significant developments during the course of the proceedings; (3)
    failing to advise the children concerning material options they had in the custody proceedings
    and their legal ramifications; (4) failing to advocate to the circuit court the wishes of the
    children; (5) making decisions for what he thought was in the best interest of the children rather
    than what they wanted, without disclosing or discussing with the children the differences in
    opinions; (6) failing to seek instruction from each child on matters as to which each of them has
    the right to determine the goals and objectives of Gambrel’s representation of them; and (7) by
    confusing his role as GAL with that of a friend of the court.
    6
    Kentucky Rules of Civil Procedure.
    -4-
    v. Clinton County, 
    330 S.W.2d 428
    , 429-30 (Ky. 1959)). Immunity is purely a
    question of law and our review is de novo. Lawrence v. Bingham, Greenebaum,
    Doll, L.L.P., 
    567 S.W.3d 133
    , 137 (Ky. 2018), reh’g denied (Mar. 14, 2019).
    ANALYSIS
    This case presents an issue of first impression in Kentucky: whether
    court-appointed guardians ad litem enjoy absolute quasi-judicial immunity from
    legal malpractice claims arising from their role in child custody proceedings.
    Based on applicable Kentucky law and public policy, we conclude they do.
    “Absolute immunity against suits for money damages is ‘well
    established’ for judges, and such immunity has also been extended to non-judicial
    officers performing ‘quasi-judicial’ duties.” Sangster v. Kentucky Bd. of Med.
    Licensure, 
    454 S.W.3d 854
    , 858 (Ky. App. 2014) (citations omitted). Kentucky
    extends quasi-judicial immunity “to those persons performing tasks so integral or
    intertwined with the judicial process that these persons are considered an arm of
    the judicial officer who is immune.” Id.; see also Stone v. Glass, 
    35 S.W.3d 827
    ,
    829 (Ky. App. 2000). To determine quasi-judicial immunity, we apply a
    “functional approach” and “‘look[ ] to’ the nature of the function performed, not
    the identity of the actor who performed it.” Sangster, 
    454 S.W.3d at 858-59
    (citation omitted). This doctrine applies to court officers when working within the
    scope of the court’s appointment. See Horn by Horn v. Commonwealth, 916
    -5-
    S.W.2d 173, 176 (Ky. 1995) (“[Q]uasi-judicial immunity attaches to the CDW
    when working within her capacity as a court designated worker.”).
    The circuit court, in denying Gambrel his claimed immunity, relied on
    our Supreme Court’s decision in Morgan v. Getter, 
    441 S.W.3d 94
     (Ky. 2014).
    However, Morgan says nothing directly relating to the question of immunity,
    whether that immunity applies to a GAL, a “friend of the court,” or any other
    court-appointed officer or investigator.
    Although Morgan distinguished the role of a GAL in custody
    proceedings from that of “court investigators,” it decided only whether due process
    requires a court to permit a litigant to cross-examine a court-appointed officer who
    submits a report to the court. Id. at 112 (“parties’ right to due process includes the
    right to cross-examine the authors, including so-called GALs, of evidentiary
    reports upon which the fact finder is entitled to rely”). In that context, the Court
    concluded a friend of the court is “a child’s representative appointed as an officer
    of the court to investigate the child’s and the parents’ situations, to file a report
    summarizing his or her findings, and to make recommendations as to the outcome
    of the proceeding[.]” Id. at 111. By contrast, a GAL is “a child’s representative
    appointed to participate actively as legal counsel for the child, to make opening
    and closing statements, to call and to cross-examine witnesses, to make evidentiary
    objections and other motions, and to further the child’s interest in expeditious, non-
    -6-
    acrimonious proceedings[.]” Id. The lesson of Morgan for bench and bar is that,
    to avoid implicating the due process right of cross-examination, a GAL “should not
    file reports, testify, make recommendations, or otherwise put his own or her own
    credibility at issue.” Id. at 114 (emphasis original).
    Extrapolating Morgan, the circuit court in the instant case concluded
    as follows:
    Here, the Defendant, Gambrel, was appointed and clearly
    served as legal counsel to the children rather than serving
    as a friend of the court investigator. Gambrel served as an
    advocate for the best interest of the children by filing
    motions and introducing evidence on behalf of his clients,
    whereas the Family Court judge served as the fact-finder
    and decided the law that governed those facts. Moreover,
    the acts by Gambrel on which the children base their
    claims of malpractice involved no non-discretionary
    functions performed at the direction of a judicial officer.
    Discretionary actions are those that involve personal
    deliberation, decisions, and judgment, and the role of
    counseling a client on the law and the client’s rights
    clearly involves the exercise of discretion. Jacobi v.
    Holbert, 
    553 S.W.3d 246
    , 262 (Ky. 2018). The Defendant
    was appointed to provide legal counsel for and to advocate
    on behalf of the children. Thus, Gambrel’s role was vastly
    different from that of the Family Court judge and did not
    involve discretionary acts or conduct like those a judge
    performs.
    ....
    . . . Morgan . . . makes clear that the role of a GAL is to
    serve as legal counsel for the children and to advocate for
    their best interests. Therefore, the Court finds that the
    Defendants do not qualify for quasi-judicial, nor any other
    form of immunity.
    -7-
    (T.R. at 263-64). We find that the circuit court erred when it concluded a GAL
    whose duty it is to advocate for the children’s best interests is, ergo, disqualified
    from claiming quasi-judicial immunity.
    Morgan is not dispositive of the immunity issue. The question is not
    whether Gambrel could have been cross-examined despite not filing any report
    with the family court. Gambrel’s appeal requires this Court to answer a different
    question – whether he is immune from suit, a question ultimately answered by
    considerations of public policy, not the same principles of due process that guided
    the Supreme Court in Morgan.
    We acknowledge that Morgan distinguishes the roles of GALs and
    court investigators. However, these distinctions do little to answer the immunity
    question. In other words, there is no justification for denying immunity to a court-
    appointed GAL simply because Morgan says the GAL cannot be cross-examined.
    After all, neither role – GAL nor “friend of the court” – requires advancing the
    desires or following directives of children who are the subjects of the legal dispute.
    Cases addressing quasi-judicial immunity in other contexts are more
    helpful than Morgan. For example, cases finding immunity for prosecutors are
    based on the same fundamental reasoning as must be applied here. A prosecutor
    does not act as an investigator for the court, does not report a recommendation of
    guilt or innocence, and does not engage in fact-finding for the judge. A prosecutor
    -8-
    is an advocate for the Commonwealth, performing a function independent from,
    yet integral to, the judicial system. And, “so long as a prosecutor acts within the
    scope of the duties imposed by law, quasi-judicial immunity is available[.]”
    McCollum v. Garrett, 
    880 S.W.2d 530
    , 534 (Ky. 1994).
    Like prosecutors, court-appointed GALs have duties that are imposed
    by law:
    Whether appointed pursuant to this statute or pursuant to a
    provision of the Kentucky Unified Juvenile Code, the
    duties of a guardian ad litem shall be to advocate for the
    client’s best interest in the proceeding through which the
    guardian ad litem was appointed. Without an appointment,
    the guardian ad litem shall have no obligation to initiate
    action or to defend the client in other proceedings.
    KRS 387.305(5).
    Though the circuit court found the GAL’s and judge’s roles “vastly
    different,” we see a more fundamental distinction between the GAL’s advocacy
    role and that of the parents’ lawyers. The latter “shall abide by a client’s decisions
    concerning the objectives of representation . . . .” SCR7 3.130(1.2)(a). The GAL
    has no duty to advocate for the children’s wishes; i.e., to abide by their decisions
    concerning the objectives of the GAL’s representation. Morgan, 441 S.W.3d at
    118. The objective of the GAL’s representation is to protect the children from any
    outcome which, in the estimation of the GAL, is inconsistent with the children’s
    7
    Rules of the Kentucky Supreme Court.
    -9-
    best interests. In this way, the GAL’s function and the function of the family court
    are identical and not “vastly different” at all. Long ago, Kentucky’s highest court
    “established the best interests of the child as the ultimate goal to be achieved” in
    custody cases. McCormick v. Lewis, 
    328 S.W.2d 415
    , 416 (Ky. 1959).
    Determining the best interests of children is a function integral to the judicial
    system, and a court appoints a GAL for the very purpose, often the sole purpose, of
    assisting in that function.
    The circuit court itself held that the instant “claims of malpractice
    involved no non-discretionary functions” by the GAL. Certainly, quasi-judicial
    immunity “applies to officials other than judges” when the court-appointed official
    performs “a function requir[ing] exercise of discretionary judgment.” Sangster,
    
    454 S.W.3d at 859
    . Here, the GAL was sued because of his exercise of
    discretionary judgment and compliance with KRS8 387.305(5).
    Thus far, we focused on statutory and common law that points the
    Court in the direction of finding immunity applies here. As noted, however, this is
    a question of public policy. And, just as sound public policy compels the
    availability of immunity for prosecutors, public policy compels the conclusion that
    GALs should be cloaked in absolute quasi-judicial immunity, too.
    The common-law immunity of a prosecutor is based upon
    the same considerations that underlie the common-law
    8
    Kentucky Revised Statutes.
    -10-
    immunities of judges and grand jurors acting within the
    scope of their duties. These include concern that
    harassment by unfounded litigation would cause a
    deflection of the prosecutor’s energies from his public
    duties, and the possibility that he would shade his
    decisions instead of exercising the independence of
    judgment required by his public trust.
    Imbler v. Pachtman, 
    424 U.S. 409
    , 422-23, 
    96 S. Ct. 984
    , 991, 
    47 L. Ed. 2d 128
    (1976) (footnotes omitted).
    The risk of “harassment by unfounded litigation” is no less for a GAL
    than for a prosecutor. In turn, without immunity, there is the same possibility that,
    to avoid the risk of being sued, the GAL will “shade his decisions.” These risks
    have been public policy considerations of courts across the country when
    considering how they affect the performance of GALs.
    After surveying the nations’ federal and state courts, the New York
    Supreme Court, Appellate Division, said: “Most courts that have considered suits
    by disgruntled parents against attorneys appointed by courts to protect children in
    custody disputes have granted, on public policy grounds, absolute quasi-judicial
    immunity to the attorneys for actions taken within the scope of their
    appointments[.]” Bluntt v. O’Connor, 
    291 A.D.2d 106
    , 116, 
    737 N.Y.S.2d 471
    (N.Y. App. Div. 2002)9; see also LINDA D. ELROD, CHILD CUSTODY PRACTICE AND
    9
    The New York court, Bluntt, 
    737 N.Y.S.2d at 478-79
    , cited the following cases: Cok v.
    Cosentino, 
    876 F.2d 1
    , 3 (1st Cir. 1989); Myers v. Morris, 
    810 F.2d 1437
    , 1466 (8th Cir. 1987),
    cert. denied, 
    484 U.S. 828
    , 
    108 S. Ct. 97
    , 
    98 L. Ed. 2d 58
     (1987), abrogated on other grounds by
    -11-
    PROCEDURE, IMMUNITY § 12.11 (2021) (“Absolute immunity [is] necessary to
    avoid harassment and intimidation that could bear on the guardian ad litem’s
    impartiality . . . .”).
    Even when the expansion of quasi-judicial immunity to non-judges is
    criticized, its universal application to GALs in all jurisdictions is stated as a matter
    of fact, without further comment. The following is an example:
    For the six circuits with published decisions, the courts
    have unanimously held that GALs are entitled to absolute
    judicial immunity for activities within the scope of their
    appointment. Specifically, the First, Third, Fourth, Sixth,
    Seventh, and Ninth Circuits have all reached this
    conclusion. In addition, district-court decisions and state-
    court decisions in the Second, Fifth, Eighth, Tenth,
    Eleventh, and District of Columbia circuits are in accord.
    Burns v. Reed, 
    500 U.S. 478
    , 
    111 S. Ct. 1934
    , 
    114 L. Ed. 2d 547
     (1991); Kurzawa v. Mueller,
    
    732 F.2d 1456
    , 1458 (6th Cir. 1984); Perigo v. Wiseman, 
    11 P.3d 217
    , 217-18 (Okla. 2000);
    Paige K.B. by Peterson v. Molepske, 
    219 Wis. 2d 418
    , 427, 
    580 N.W.2d 289
    , 293 (1998); Billups
    v. Scott, 
    253 Neb. 287
    , 293, 
    571 N.W.2d 603
    , 607 (1997); West v. Osborne, 
    108 Wash. App. 764
    , 774, 
    34 P.3d 816
    , 822 (2001); Winchester v. Little, 
    996 S.W.2d 818
    , 827 (Tenn. Ct. App.
    1998), cert. denied, 
    528 U.S. 1026
    , 
    120 S. Ct. 543
    , 
    145 L. Ed. 2d 421
     (1999); Delcourt v.
    Silverman, 
    919 S.W.2d 777
    , 786 (Tex. App. 1996), cert. denied, 
    520 U.S. 1213
    , 
    117 S. Ct. 1698
    ,
    
    137 L. Ed. 2d 824
     (1997), reh’g denied, 
    520 U.S. 1283
    , 
    117 S. Ct. 2472
    , 
    138 L. Ed. 2d 227
    (1997); State ex rel. Bird v. Weinstock, 
    864 S.W.2d 376
    , 377-378 (Mo. Ct. App. 1993); Leary v.
    Leary, 
    97 Md. App. 26
    , 40, 
    627 A.2d 30
    , 36 (1993); Penn v. McMonagle, 60 Ohio. App. 3d 149,
    152, 
    573 N.E.2d 1234
    , 1237 (1990), jurisdictional mot. overruled, 
    58 Ohio St. 3d 704
    , 
    569 N.E.2d 512
     (1991); Delbridge v. Office of Pub. Defender, 
    238 N.J. Super. 288
    , 299-300, 
    569 A.2d 854
    , 860 (1989), aff’d sub nom. A.D. v. Franco, 
    297 N.J. Super. 1
    , 
    687 A.2d 748
     (1993),
    certification denied, 
    135 N.J. 467
    , 
    640 A.2d 849
     (1994), cert. denied sub nom. Delbridge v.
    Franco, 
    513 U.S. 832
    , 
    115 S. Ct. 108
    , 
    130 L. Ed. 2d 56
     (1994); cf. Fleming v. Asbill, 
    42 F.3d 886
    , 890 (4th Cir. 1994).
    -12-
    Margaret Z. Johns, A Black Robe Is Not A Big Tent: The Improper Expansion of
    Absolute Judicial Immunity to Non-Judges in Civil-Rights Cases, 59 SMU L. REV.
    265, 283-84 (2006) (footnotes citing opinions in each jurisdiction omitted).
    We find no merit in Appellee’s argument for distinguishing this case
    from the nationwide unanimity of jurisprudence on this subject. That distinction,
    says the Appellee, is that “[t]he Villarreal Children decided to bring an action”
    rather than any disgruntled parent as in all the other cases cited herein. We need
    not undertake a review of every case to confirm that premise. It is a false one. The
    fiction or fact that the children, notwithstanding their lack of legal capacity, made
    such a decision is irrelevant. If a GAL is entitled to immunity, it does not matter
    who seeks to establish his liability.
    A GAL has the same overarching statutory duty in child custody
    proceedings as a judge – to ensure the best interests of the child are met. GALs are
    appointed by court order at the behest of the presiding judge or a party. This
    appointment furthers the judge’s duty to determine the best interests of the children
    by ensuring the court is presented with unbiased evidence in support of those
    interests, not merely the biased advocacy of the parents.
    The same reasoning underlying a judge’s entitlement to absolute
    immunity compels us to extend similar protection to GALs appointed by the court
    to represent the best interests of children affected by custody disputes. If GALs are
    -13-
    harassed by a disgruntled parent (or by a next friend of that parent’s legally
    incompetent minions, their children), or if they even fear the potential of such
    litigation, their efforts to advance the children’s best interests would always be
    suspect. See Kurzawa v. Mueller, 
    732 F.2d 1456
    , 1458 (6th Cir. 1984);10 Arsan v.
    Keller, 784 F. App’x 900, 908 (6th Cir. 2019).11 Accordingly, having considered
    the nature of their function, we conclude GALs perform tasks integral to the
    judicial process – ensuring the best interests of the child are met – and public
    policy dictates they should be protected by quasi-judicial immunity.
    Finally, we note that there are protections in place against a GAL who
    fails to diligently and impartially carry out his assigned judicial function. Because
    a GAL must be a member of the bar, he will be held to the rules of professional
    10
    A GAL “must act in the best interests of the child he represents. Such a position clearly places
    him squarely within the judicial process to accomplish 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 judicial proceedings.” Kurzawa, 
    732 F.2d at 1458
    .
    11
    In Arsan v. Keller, 784 F. App’x at 908, the Sixth Circuit held:
    Absolute immunity protects judges from liability for acts performed in their judicial
    capacity. See Cleavinger v. Saxner, 
    474 U.S. 193
    , 199, 
    106 S. Ct. 496
    , 
    88 L. Ed. 2d 507
     (1985). The Supreme Court has extended this defense — sometimes called
    “quasi-judicial immunity” — to others “who perform functions closely associated
    with the judicial process.” 
    Id. at 200
    , 
    106 S. Ct. 496
    . Guardians ad litem are
    entitled to such immunity when they act within the scope of their roles as
    “advocate[s] for the child in judicial proceedings.” Kurzawa, 
    732 F.2d at 1458
    .
    This is because guardians ad litem “must also be able to function without the worry
    of possible later harassment and intimidation from dissatisfied parents.” 
    Id.
     As
    such, “failure to grant immunity would hamper the duties of a guardian ad litem in
    his role as advocate for the child in judicial proceedings.”
    -14-
    conduct except where his conduct is governed by statute rather than rule. Contrast
    KRS 387.305 with SCR 3.130(1.2). Next, the GAL is not the final word;
    ultimately, the court must make the best interests determination and that
    determination need not be in lock-step with the GAL’s view. Lastly, the court
    oversees the GAL’s conduct and may withdraw the appointment sua sponte or
    upon a parent’s motion. Such a motion was filed in the underlying action, but it
    was denied.
    CONCLUSION
    Based on the foregoing, we reverse the Campbell Circuit Court’s June
    18, 2020 order denying Gambrel’s motion to dismiss and remand with orders to
    dismiss the case for failure to state a claim upon which relief may be granted.
    ALL CONCUR.
    BRIEFS FOR APPELLANT:                     BRIEF AND ORAL ARGUMENT
    FOR APPELLEE:
    Joseph W. Borchelt
    Matthew A. Taulbee                        John J. Mueller
    Ft. Mitchell, Kentucky                    Cincinnati, Ohio
    ORAL ARGUMENT FOR
    APPELLANT:
    Joseph W. Borchelt
    Ft. Mitchell, Kentucky
    -15-