Opinion
Decided September 24, 2003
On Appeal from the Superior Court of New Jersey Law Division: Morris County Docket No. MRS L-323-01 Civil Action.
Christopher W. Hyde for Plaintiff.
Stephen A Weiner for Defendant (Picillo Caruso O'Toole).
OPINION Background
This case arises out of a custody dispute between former spouses over their two children and the role played by the defendant in that litigation. On June 10, 1998, the defendant. Madelyn Simring Milchman, Ph.D., was appointed by the court to perform a "best interests" evaluation, pertaining to the issue of child custody in a dissolution. At the time of the evaluation Deborah Gannett, the plaintiff herein, had residential custody of both children Dr. Milchman's report was presented to the court on January 19, 1999 Among other recommendations, Dr. Milchman recommended that the children reside with their father and that Ms. Gannett have supervised visitation with their children for up to one year.
On January 19, 2001, Deborah Gannett filed suit against Dr. Milchman alleging professional malpractice in connection with the custody evaluation. Defendant Milchman filed a Motion for Summary Judgment based on quasi-judicial immunity.
Judicial Immunity
It is well established that judges are afforded absolute immunity from liability for damages for acts performed in the exercise of their judicial functions Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 543 (1998). Even judges who act maliciously or corruptly are protected by absolute immunity Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218 (1967). The United States Supreme Court observed that absolute judicial immunity serves the twin purposes of protecting the finality of judgments and preserving judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants. Forrester 484 U.S. at 225 (citations omitted).
New Jersey courts have consistently found that judges are accorded absolute immunity for acts which are "colorably within his jurisdiction"Cashen v. Spann, 125 N.J. Super 386, 395 (App.Div. 1973). The Cashen court noted that "such judicial immunity has been recognized for centuries." Id citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). The Cashen court also recognized that court officers, such as prosecutors, when exercising judicial functions are absolutely immune. Applying a similar rationale, another court found that a psychologist and members of a child placement review board were immune in a case arising out of a child custody evaluation under the doctrine of quasi-judicial immunity (various state, county and government agencies and various private agencies and individuals were also found immune for the same reason). Delbridge v. Shaeffer, 238 N.J. Super. 323 (Law Div. 1989), aff'd A.D. v. Franco, 297 N.J. Super. 1 (App Div 1993), certif. den. 135 N.J. 467 (1994), cert. den. Delbridge v. Franco, 513 U.S. 832 (1994).
Notwithstanding Cashin and Delbridge, New Jersey has not been in the advance guard of the proponents for the expansion of judicial immunity. Rather, our courts have been reluctant to expand "the carefully limited horizons" of the absolute privilege. Fees v. Trow, 105 N.J. 330, 338 (1997); Levine v. Wiss Co., 97 N.J. 242 (1984), Starr v. Reinfeld 267 N.J. Super. 25 (App.Div. 1993). In Levine, a 4-3 decision, the Court declined to provide immunity to an accountant and accounting firm which was appointed to act as an "impartial expert" in rendering a binding valuation of an asset for purposes of equitable distribution in a contested matrimonial case. In Starr, the Appellate Division held that an attorney appointed by the court to sell a house for litigants in a divorce proceeding was not entitled to absolute judicial immunity.
There is no published case in New Jersey that touches upon the issue herein Other jurisdictions have held that court-appointed psychiatrists and psychologists in custody matters are entitled to absolute immunity when fulfilling quasi-judicial functions.
But See P.T. Et al. v. County of Somerset Et al., No. SOM-L-1311-96 (Law Div. May 2, 2000) (Coincidentally, the defendant herein was a party in that action).
State Court Decisions
The Alaska Supreme Court determined that a court-appointed psychologist acting as an independent custody investigator in a custody dispute was entitled to absolute quasi-judicial immunity Lythgoe v. Guinn, 844 P.2d 1085 (1994). In reaching its determination, the court considered the history of absolute judicial immunity and the virtual uniformity with which courts throughout the United States granted absolute immunity to persons who perform functions analogous to those performed by the defendant herein. Id. at 1087.
The Nevada Supreme Court has also extended absolute quasi-judicial immunity to court-appointed psychologists. Duff v. Lewis, 114 Nev. 564, 958 P.2d 82 (1998). In that case, a former husband who had unsuccessfully sought modification of a custody order brought a negligence action against a court-appointed psychologist who had issued a report recommending the former wife be given custody of the children. The court, in a case of first impression in that state, held that the court-appointed psychologist was protected by absolute quasi-judicial immunity. The court's rationale for its extension of absolute immunity to court-appointed psychologists was the vital role such court-appointed officials play in assisting the court in the decision making process. The court reasoned that ". . . [W]ithout immunity these professionals risk exposure to lawsuits whenever they perform quasi-judicial duties. Exposure to liability could deter their acceptance of court appointments or color their recommendations . . ." Id at 85.
The Utah Supreme Court held that a court-appointed psychologist who conducted evaluations and made recommendations regarding custody was entitled to quasi-judicial immunity Parker v. Dodgion 971 P.2d 496 (1998). Among the bases for its decision, the Court found that it was dependant upon the psychologist to exercise discretionary judgment which "is a hallmark of a position functionally comparable to that of a judge."Parker (citing Antoine v. Byers Anderson, Inc., 508 U.S. 429, 435-36 (1993)).
The Supreme Court of Hawaii extended absolute immunity to a psychiatrist appointed by the court to render an opinion regarding defendant's mental condition. The court reasoned, "such persons act as an `arm of the court' and perform `functions essential to the judicial process.'" Seibel v. Kemble, 63 Haw. 516, 631 P.2d 173, 177 (1981), See also Moses v. Parwatikar, 813 F.2d 891 (8th Cir.), cert. denied, 484 U.S. 832, 108 S.Ct. 108 (1987).
The Arizona Supreme Court has also extended absolute immunity to psychologists Lavit v. Superior Court, 173 Ariz. 96, 839 P.2d 1141 (1992). In the Lavit case, the parties hired a psychologist to conduct a custody evaluation as part of their dissolution. The court adopted the parties stipulation choosing the psychologist and incorporated the psychologists recommendations into the dissolution decree. Later, the husband sued the psychologist alleging the evaluation was biased. The court premised its finding of immunity on the basis that the psychologist performed an integral function to the judicial process notwithstanding the manner by which the psychologist was appointed.
The Court of Appeals of Minnesota held that a court-appointed therapist was protected by quasi-judicial immunity when that therapist conducted an evaluation of children who were suspected of being sexually abused after a professional malpractice action was brought against him Myers Myers v. Price, 463 N.W.2d 773 (1991). The court held that "because judicial immunity is designed to protect the judicial process, it also extends to person who are integral parts of the process." Id at 774.
The Court of Appeals of Kentucky held that a court-appointed social worker who provided a custody evaluation was entitled to quasi-judicial immunity. Stone v. Glass, 35 S.W.3d 827 (2000). In the Stone case, the former wife sued a court-appointed social worker for professional negligence and outrageous conduct in a child custody proceeding. The court held that the social worker was acting as a fact-finder for the court and was an integral part of the judicial process and thus entitled to quasi-judicial immunity.
The Supreme Judicial Court of Massachusetts reasoned that common law immunity protects persons appointed by a court to conduct medical or psychiatric evaluation and render an opinion or to provide other expert assistance because of their integral relation to the judicial process.LaLonde v. Eissner, 405 Mass. 207, 539 N.E.2d 538, 541 (1989).
Federal Court Decisions
The Third Circuit Court of Appeals has also extended judicial immunity to court-appointed child custody evaluators Hughes v. Long 242 F.3d 121 (3rd Cir. 2001). In Hughes, the father brought federal civil rights and state contract and tort suit against the custody evaluator and others alleging that they falsified the results of his evaluation tests. He further alleged that they omitted positive information from their reports and recommendations to the court and withheld data from his expert. The Third Circuit reasoned that the evaluator was acting as an arm of the court by making a recommendation at the court's request and therefore was entitled to immunity.
The Eighth Circuit Court of Appeals accorded absolute judicial immunity to therapists and others "appointed to fulfill quasi-judicial responsibilities under court direction, including duties relating to the question of whether certain children had been neglected." Meyers v. Morris, 810 F.2d 1437 (8th Cir.) cert. denied, 484 U.S. 828,108 S.Ct. 97, 98 (1987).
The United States District Court of Maryland held that a court-appointed psychiatrist and psychologist who evaluated a family to assist the judge in deciding custody issues were entitled to absolute immunity from liability in a civil rights action. Williams v. Rappeport, 699 F. Supp. 501 (Dist.Ct. 1988). The court noted that several jurisdictions extended absolute immunity to court-appointed doctors and found that court-appointed doctors were entitled to absolute immunity.See, also Burkes v. Callion, 433 F.2d 318 , 319 (9th Cir. 1970). cert. denied, 403 U.S. 908, 91 S.Ct. 2217 (1971); Bartlett v. Weimer, 268 F.2d 860 , 862 (7th Cir. 1959) cert. denied 361 U.S. 938, 80 S.Ct. 380 (1960);Phillips v. Singletary, 350 F. Supp. 297,300 (D.S.C. 1972); Bartlett v. Duty 174 F. Supp. 94 , 97-98 (N.D. Ohio 1959).
From a review of the state and federal decisions, it is evident that the establishment of quasi-judicial immunity turns on: 1) whether the role played is an integral part of the judicial process; 2) whether there is discretionary judgment; 3) whether procedural safeguards are present and, 4) whether policy concerns involving insulation from undue influence and freedom from intimidation are paramount to an individuals' entitlement to redress.
Integral Part Of The Judicial Process
Rule 5:3-3 specifically provides for the appointment of experts in the Chancery Division, Family Part. That rule states, in pertinent part:
(a) . . . whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion. the court may order any person under its jurisdiction to be examined by a . . . psychologist . . . designated by it.
The Comment to the rule sets forth the practice of such appointments.
". . . [t]he prerequisite of the court to [appoint experts] has been regarded as a matter within its inherent power and such appointments have been routinely made in family as well as in other civil actions . . . (citations omitted)" PRESSLER, Current N.J. COURT RULES, Comment R. 5:3-3 (GANN).
For example, the courts have utilized court-appointed experts in a matter involving the termination of parental rights, a cause of action in which the parent's constitutional rights are scrupulously protected. See In re Guardianship of K.H.O. 161 N.J. 337 (1999).
In this state, as in other jurisdictions, court-appointed experts play an integral role in the judicial process, for, "in conducting such evaluations, the psychologist is essentially acting as a neutral fact-finder for the court." Stone, supra, 35 S.W.3d at 830.
Discretionary Judgment
In the Levine case, the New Jersey Supreme Court refused to grant the defendants quasi-judicial immunity on the grounds that they, "did not resolve any conflicting claims or determine legal rights and obligations. They did not exercise the discretionary judgment that is the hallmark of the arbitrator's functions." Levine, supra. 97 N.J. at 251. (emphasis added).
Unlike the accountants in Levine, a court-appointed psychologist, in the conduct of a custody evaluation, exercises discretionary judgment. The psychologist decides which individuals and parties to interview as well as the manner, the place and the duration of those interviews. This exercise of discretionary judgment by the psychologist is to assure that the evaluation will be "independent, impartial and objective," so that the court may consider the findings without concern that they were improperly or unduly influenced by either or both of the parties.
In Williams v. Rappeport, supra the court expressed the vital importance of discretionary judgment in a determination whether to afford absolute immunity to "quasi-judicial" officers:
The immunity of "quasi-judicial" officers derives not from their formal association with the judicial process, but from the fact that they exercise a discretion similar to a judge . . . [P]rofessionals appointed by a judge to assist the judge in evaluating individuals involved in a lawsuit before the court do perform discretionary functions within the judicial process. 699 F. Supp at 507 (citations omitted).
Procedural Safeguards
As Justice O'Hern noted in a decision upholding the absolute privilege applicable to statements made during litigation, "the trouble with privileges is that they are granted to the good and bad alike." Hawkins v. Harris, 141 N.J. 207, 213 (1995). When considering the extension of privilege the court must consider whether there are adequate procedural remedies and safeguards that hold court-appointed professionals accountable for their actions. In LaLonde, supra, the court stated that "[w]hile we are cognizant of the need to prevent negligently performed evaluations, our judicial system has inherent safeguards that minimize the risk of decisions based on inaccurate, misleading, or negligently conducted evaluations." LaLonde 539 N.E.2d at 542. One of the safeguards is the adversarial process of cross-examination and the opportunity to examine the expert or the report and to bring out any deficiencies in the evaluation process or the report. In addition, "the complaining party is free to seek appellate review or . . . request a modification of the trial court's order." Lythgoe, supra, 884 P.2d at 1091. The court also has the authority to impose sanctions on court-appointed experts including . . . "prohibiting the doctor from further service to the court." Id at 1091 (citations omitted).
In New Jersey any party may seek discovery and retain their own expert. R. 4:10-2, R. 5-3-3(g). Rule 5:3-3(g) states, "that [n]othing in this rule shall be construed to preclude the parties from retaining their own experts, either before or after the appointment of any expert by the court upon the same or similar issues." Saliently, the court is not bound by the appointed expert's findings, providing, the ultimate safeguard.
Public Policy Concerns
Courts have recognized several policy grounds supporting absolute judicial immunity including:
1) the need to save judicial time in defending suits; 2) the need for finality in the resolution of disputes; 3) to prevent deterring competent persons from taking office; 4) to prevent the threat of lawsuit from discouraging independent action; and 5) the existence of adequate procedural safeguards such as change of venue and appellate review. Duff v. Lewis, at 569.
While these policy reasons apply to judges, courts have also applied them to court-appointed officials who assist the court in making decisions. Lavit, supra, 839 P.2d at 1144 . "Without immunity, these professionals risk exposure to lawsuits whenever they perform quasi-judicial duties. Exposure to liability could deter their acceptance of court appointments or color their recommendations." Id (citations omitted).
"The absolute immunity which is accorded persons acting as an integral part of the judicial process protects them from having to litigate the manner in which they performed their delegated functions." Meyers v. Morris, 810 F.2d at 1467 . Granting immunity to court-appointed therapists in these instances "protects important public interests. . . . Psychologists and other experts would be reluctant to accept courtappointments in that they thereby open themselves to liability for their action in this official capacity." Doe v. Hennepin County, 623 F. Supp. 982 , 986 (D.Minn. 1985).
The exercise of discretion mandates that there be freedom to act in an objective and independent manner. As the court noted in Williams v. Rappeport, "[t]he proper approach is to consider the precise function at issue and to determine whether the [psychologist] is likely to be unduly inhibited in the performance of that function by the threat of liability for tortuous conduct." Williams v. Rappeport, supra, 699 F. Supp. at 507 .
In Delbridge, supra, the court, in reaching its decision to afford quasi-judicial immunity stated:
If these defendants were not immune and were obliged to defend their actions in a civil trial . . . a most chilling effect would be visited upon them. When others in the field of preventing child abuse learn of this case, it could have a catastrophic effect if persons, such as these defendants, were held not to be immune . . . Id. 348-349.
The courts of this state have long recognized an analogous immunity pertaining to statements made in the course of proceedings before a court. Erickson v. Marsh McLennan Co., 117 N.J. 539 (1990). InHawkins v. Harris, supra, the court stated that the "litigation privilege" is not limited to statements made in a courtroom during a trial, "it extends to all statements or communications in connection with the judicial proceeding . . . [S]uch application of the privilege affords litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions."Hawkins, 141 N.J. at 216 (citations omitted). The basis for extension of judicial immunity to those statements made during the course of judicial proceedings "is predicated on the need for unfettered expression critical to advancing the . . . interest at stake in those settings." Erickson v. Marsh McLennan Co., 117 N.J. at 563.
It is has not been argued herein that the defendant was entitled to witness immunity that would insulate her from liability. The court notes sua sponte, that some jurisdictions have extended immunity to pre-trial proceedings as well. See Post v. Mendel, 507 A.2d 351 , 355 (1986).
While the immunity issue in matters such as Hawkins and Erickson were in the context of defamation and related action, the form of the action is irrelevant to the application of the privilege.
Plaintiff's Argument
The court finds plaintiff's arguments in support of her assertion that the defendant should not be accorded absolute immunity to be unpersuasive. In advancing her arguments, plaintiff relies heavily, if not exclusively, on the Levine decision. As noted above, the Levine case, on its facts and legal findings, is distinguishable. In Levine, the accountants were not serving as an "arm of the court" and most importantly, did not engage in discretionary judgment. In the present case, the defendant was called upon by the court to give an opinion as to the "best interests" of the minor children in a custody dispute and her opinion was derived from the utilization of discretionary judgment.
Additionally, plaintiff argues that there was an agreement entered into with the defendant which provides a basis for a cause of action and that, if defendant is to be accorded immunity, it should qualified and not absolute.
The Agreement
In the second count of the complaint the plaintiff alleges, generally, that defendant owed her a duty to perform the evaluation within accepted professional standards pursuant to a contract entered into between the parties. Plaintiff further avers that defendant breached that duty and thus breached the contract.
On July 8, 1988 the plaintiff and defendant entered into a contract entitled "Agreement For The Provision of a Forensic Evaluation." ("Agreement") Among the recitations in the Agreement was that plaintiff understood and agreed that she was "contracting" with the defendant "to provide an evaluation for potential legal purposes." Within that Agreement was another recitation that defendant:
Although not raised by either party herein, presumably the defendant entered into the same agreement with plaintiff's former spouse.
"will be conducting an evaluation which is thorough, comprehensive, independent, objective, and in conformity with the best practices recognized by the mental health profession at the time that the evaluation is conducted and that is appropriate to the specific conditions of this case."
Predicated largely upon the above provisions, plaintiff argues that she is entitled to damages relating to the Agreement should there be a finding the defendant committed malpractice. The court disagrees. The recitation within the Agreement referencing adherence to the applicable professional standards is of no import. In the absence of that statement, the defendant would still be held to the standards of her profession. Plaintiff's claims arise from allegations related to defendant's conduct as a court-appointed expert. As such, the duties imposed upon the defendant arose from a quasi-judicial function performed pursuant to a court order and not from the written agreement with the plaintiff. The Agreement was in furtherance of the court appointment. It was not intended to alter the relationship between the parties nor the role played by defendant, i.e., to perform a forensic evaluation for the benefit of the court. The argument advanced by the plaintiff that the "Agreement" provided for duties owed to her by defendant may have persuasive elements, but does not permit a finding that defendant was, at any time performing outside of her quasi-judicial function pursuant to the court's directive.
Applying the tests enunciated by the courts, it is evident that the defendant was operating in the capacity of a quasi-judicial officer. Consistent with that finding, and consistent with the reasoning of the opinions cited herein, the defendant should be accorded immunity.
Qualified Immunity
Absolute immunity "should be accorded only in exceptional cases . . . the rationale underlying the need for absolute immunity must be closely scrutinized before . . . [one] is protected from liability by an impenetrable shield." Walden v. Wishengrad, 745 F.2d 149 , 152 (2d Cir. 1984) (citations omitted). Plaintiff argues that, if the court accords immunity to the defendant, it should be qualified and not absolute.
A qualified privilege enjoys a lesser degree of immunity and may be overcome on a showing of malice Erickson v. Marsh McLennan Co., 117 N.J. at 565. Our courts have ruled uniformly that, in the context of a libel case, malice requires clear and convincing proof that the defendant "knew the statement to be false or acted in reckless disregard of the truth. "Id. (citations omitted). In malicious prosecution actions (criminal and civil) jurors are charged that malice is "the intentional commission of a wrongful act." Ranier's Dairies v. Raritan Valley Farms Inc., 19 N.J. 552 (1955). Our statutes have accorded immunity to those who report abuse of the elderly unless such person has acted in, "bad faith or with malicious purpose." N.J.S.A. 52 G-7 le. The New Jersey Supreme Court has determined that this statutory test is the equivalent of the "ill motive" standard afforded to "whistle blowers" See N.J.S.A. 34:19-1 et seq., Fees. 105 N.J. at 341.
In sum, for a plaintiff who sues one who enjoys the protection of a qualified immunity, "the bar is high" and a successful outcome is unlikely. One may argue, therefore, that a qualified immunity affords adequate protection to those acting in a quasi-judicial role. This court does not find the argument convincing. In reaching its decision, the court must reconcile the dilemma posed by the competing interest, to wit, a litigant's right to seek redress versus provision of an "impenetrable shield" to those who engage in quasi-judicial conduct. A determination to accord a limited privilege to the defendant would leave a window open for plaintiff to pursue her claim. For reasons stated below, the price to be paid by our judicial process for leaving the window open is too high.
The Nevada Supreme Court noted in Duff, that it is the "exposure to liability that could deter" acceptance of appointments. In Delbridge, the court cautioned about the chilling effect visited upon those who engage in quasi-judicial activities if they are required to "defend their actions in a civil trial." The Duff and Delbridge courts recognized that it is the "exposure" to claims and the "defense" of those claims, even where the claim's success is dubious and unlikely, that impacts upon the free, independent and fearless discharge of one's quasi-judicial duties. Stated succinctly, the harm would be visited by the fact of a suit, no matter what the outcome. When considering the potential for such harm upon those who play a vital and integral role in the judicial process, the reconciliation of the dilemma is clear and unmistakable. The immunity accorded to court appointed psychologists, such as the defendant, needs to be absolute in order to protect the judicial process from impermissible influences. Moreover, protection of the judicial process, even when it provides an "impenetrable shield," safeguards the principal and salutary purpose for its existence, i.e., the protection of the public.
Defendant's motion for summary judgment is granted.