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-