October 2011Volume 99Number 10Page 490

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Absolute immunity for child reps

Immunity from liability is absolute for child representatives working within the scope of their court-appointed duties.

Child representatives are absolutely immune from lia­bility when working as advocates within the scope of their court-appointed duties, a panel of the first district of the Illinois Appellate Court has held. The case is Vlastelica v Brend et al, 2011 IL App (1st) 102587.

The facts of Vlastelica

The plaintiff, Milijana Vlastelica, and her former husband, Manheir Chehaiber, entered into a marital settlement agreement that was incorporated into a judgment for dissolution of marriage in 2002. The judgment reserved the issues of custody of their minor son, Kristian, visitation, and child support.

After the judgment's entry, the circuit court awarded Kristian's custody to Vlastelica. The court appointed the defendant, attorney Jeffrey W. Brend, as child representative for Kristian to assist it in determining the remaining issues.

Brend remained Kristian's child representative until early 2008, when all remaining issues concerning the Chehaibers' divorce were finally adjudicated. In the meantime, as the court noted, the proceedings were highly adversarial. Vlastelica filed a motion for substitution of judge and two motions to discharge Brend. Among other matters, she alleged that both the court and Brend were prejudiced against her and that Brend had improperly attempted to influence a court-appointed psychologist.

The court denied the motions and imposed sanctions on Vlastelica. The appellate court affirmed the sanctions in an unpublished order.

In early 2010, Vlastelica filed a three-count complaint against Brend and his firm, alleging legal malpractice, intentional breach of fiduciary duty, and intentional interference with Vlastelica's custody rights. In support of her claims, she alleged, among other matters, that Brend had refused to discuss some issues that were pending, had insisted on discussing other matters that she termed "nonissues," had attempted to pressure her into an agreement, and had improperly failed to file responses to certain motions. She also alleged that Brend's questions and objections at hearings favored her former husband and that his actions as child representative had unnecessarily protracted the litigation.

The circuit court granted Brend's motion to dismiss under 735 ILCS 5/2-619, finding that he and his law firm were absolutely immune from civil liability for Brend's work as child representative. Vlastelica appealed.

Immunity counters harassment, intimidation

Looking to federal case law for guidance, the appellate court held that child representatives are arms of the court and are therefore entitled to the same absolute immunity as judges for their actions. Citing Cooney v Rossiter, 583 F3d 967 (7th Cir 2009), the court said a child representative is, in essence, a "hybrid" of a child's attorney and a guardian ad litem, whose function is to assist the court in a neutral determination of the child's best interests. Absolute immunity is essential in order to allow child representatives to fulfill their statutory duties without fear of harassment and intimidation from dissatisfied parents, the court said.

The court found the United States Supreme Court's "functional" approach to immunity, set forth in Cleavinger v Saxner, 474 US 193 (1985), helpful to its decision. In that matter, the court cited six factors as relevant to determining whether a person is entitled to absolute immunity:

(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.

Id at 202, relying on Butz v Economou, 438 US 478, 511 (1978).

Under that approach, the court noted, absolute immunity arises from the nature of an individual's responsibilities, not from his position.

The weight of those factors supported a finding of absolute immunity for child representatives, the court found. The adversarial, emotionally charged nature of the proceedings on which Vlastelica based her complaint illustrated the need for absolute immunity so that the child representative could perform his duties without harassment or intimidation, the court said.

Furthermore, both the authorizing statute defining the duties of the child representative, 750 ILCS 5/506(a)(3), and the professional obligations of an attorney work as safeguards that both reduce the need for private damages actions for misconduct and provide correctability of error on appeal. Section 506(a)(3)'s requirement that child representatives have special training and/or equivalent experience reduces the likelihood of unconstitutional conduct, the court said. Further reducing that likelihood, the court continued, an aggrieved party may bring her concerns not only before the court, as Vlastelica did, but also to the Attorney Registration and Disciplinary Commission.

The court rejected Vlastelica's argument that Brend's conduct had taken place outside his role as child representative. To the contrary, investigating the case's facts, encouraging settlement, and participating in the litigation, including acting as an advocate for the best interests of the minor child, were all within his court-appointed duties and were therefore subject to absolute immunity, the court said. It affirmed the circuit court's order dismissing Vlastelica's claims against Brend and his law firm. An interview with Brend's counsel, Bruce Meckler, is on Chicago Lawyer's blog at http://h20cooler.wordpress.com/2011/08/15/qa-with-bruce-meckler/.

Helen W. Gunnarsson is a lawyer and writer in Highland Park. She can be reached at <helengunnar@gmail.com>

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