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Defendants who made statements to a guardian as part of a custody investigation were not entitled to immunity or quasi-judicial immunity, a divided panel of the Michigan Court of Appeals ruled, overturning a trial court decision.
After the plaintiff mother lost custody of her children, she filed a lawsuit for defamation and malicious prosecution against the defendants who made the statements. The trial court granted the defendants’ motion for summary judgment, declaring that they were entitled to immunity and quasi-judicial immunity.
The appeal majority disagreed.
“The trial court erred in finding that defendants were granted immunity by the Child Protection Act because defendants did not provide their statements under that statute,” the majority said. “Similarly, the trial court erred in finding that the defendants were entitled to quasi-judicial immunity because the defendants did not exercise a judicial function or make statements in any underlying litigation.”
The unpublished Per Curiam opinion, Silas v. Reilly (MiLW 08-107331, 6 pages), was edited by Judges Colleen A. O’Brien and Brock A. Swartzle.
Judge Christopher M. Murray issued a partial concurrence and a dissent.
“I am writing separately… to encourage the Legislature or the Supreme Court – the two bodies constitutionally empowered to change the common law – to remedy this situation by either the Legislature expanding the immunity provisions within the GAL statute or the Court expanding the quasi-judicial ones.” Provisions expanded. “Doctrine of immunity,” he said.
background
Robin Silas and a non-partisan parent shared custody of two children. The non-party parent requested a change in custody and parenting time. A family court judge appointed a guardian ad litem (GAL) to represent the interests of the children in the underlying custody dispute.
The GAL was granted authority to interview all members of the parties’ immediate and extended family, as well as other persons residing in the parties’ homes. She could also interview any other people she believes may have relevant information or something to do with the parties’ children.
In addition, the GAL had the discretion to communicate with anyone from whom it required information to promote the welfare of the children or ensure their safety and well-being. This included the court, one or both attorneys, one or both parents, current or former therapists and medical providers, and all other parties to give her a full opportunity to review all relevant information and protect the children.
As part of its investigation, the GAL interviewed the children’s former nanny, Pam Reilly, and Shavon Romita, a therapist employed by Crossing Paths who provided therapy to the children and Erin Silas.
After the investigation, the GAL recommended that the independent parent have sole custody of the children. She also prepared a report of the statements she received from Child Protective Services. Robin Silas lost custody of the children.
The Silases alleged that Reilly, Romita and Crossing Paths defamed them and that Reilly engaged in malicious prosecution regarding their statements to the GAL. The Silases also said that Reilly made false statements to the GAL and that she made these allegedly false statements in retaliation for her firing as the children’s nanny. Finally, the Silases claimed that Romita made false and defamatory statements about Erin Silas.
From the outset, all three defendants moved for summary judgment under MCR 2.116(C)(7), asserting that they were entitled to immunity under MCL 722.625 or quasi-judicial immunity.
Romita and Crossing Paths also filed for summary judgment pursuant to MCR 2.116(C)(8); The Silases had not alleged that Romita or Crossing Paths had made defamatory statements against Robin.
The Oakland Circuit Court granted the defendants’ motions, declaring that they had immunity under MCL 722.625 as well as quasi-judicial immunity. It also granted summary judgment to Romita and Crossing Paths pursuant to MCR 2.116(C)(8).
The Silases appealed.
No immunity
MCL 722.625 has been characterized as “an immunity provision” in which “the grant of immunity applies only to acts required by the Child Protection Act,” specifically the acts of “reporting, cooperating, or assisting as required by the Act.” Majority noted.
The Silases alleged that the defendants made false and defamatory statements to the GAL during their investigation, not during a CPS investigation.
“Although the guardian ad litem used the results of this investigation as the basis for a report to Child Protective Services, the defendants did not ‘report, cooperate or assist’ as required by the Child Protection Act or the Child Protection Act,” the judges pointed out: “Therefore Defendants are not entitled to immunity under MCL 722.625, and the trial court erred in granting summary judgment to defendants on that basis.”
Regarding quasi-judicial immunity, the majority found that the defendants did not exercise the “professional duties, roles, or functions” of the judiciary.
“Instead, the defendants provided statements to the guardian ad litem for the purposes of the guardian ad litem’s investigation pursuant to a court order,” the judges said. “In general, the defendants acted as a type of ‘witness’.”
In Maiden v. Rozwood, the Michigan Supreme Court has ruled that witnesses who testify during a trial enjoy quasi-judicial immunity and that their statements are “absolutely privileged, provided they are pertinent, material or pertinent to the matter at issue.” Falsehood or malice on the part of the witness does not waive the privilege. The privilege should be interpreted liberally so that participants in legal proceedings can express themselves freely without fear of reprisal.”
The Court of Appeal extended this immunity to other participants in legal proceedings, but to those who acted under a court order. This was not the case here.
“In this case, the defendants did not submit their statements to the guardian ad litem under oath or court order,” the majority stated. “The defendants were not required to speak to counsel and their statements were not submissions in the underlying litigation unless counsel later introduced those statements as part of their investigation.”
Because the defendants did not perform any judicial function or make any representations in any underlying litigation, the trial court erred in granting summary relief to the defendants, who are subject to quasi-judicial immunity.
Finally, the majority said the trial court erred in dismissing Silases’ claims “relating to malicious prosecution and Romita’s defamation of Erin Silas” because the court decisions cited did not support summary judgment on those claims.
The matter will be remanded to Oakland County for further action.
Plea to the Legislature, Supreme Court
Murray gave a separate opinion from his colleagues on the bench, in which he partly agreed and partly disagreed.
He agreed with the majority that the defendants were not entitled to immunity under MCL 722.625 and that they were not entitled to quasi-judicial immunity.
However, because Michigan courts have not extended quasi-judicial immunity to witnesses who voluntarily provide testimony to a court-authorized actor in the course of an investigation, he called on the Supreme Court and the Legislature to provide relief for this situation.
“The statements at issue here were made during a trial, were relevant to the GAL investigation and important to the fact-finding process,” he said. “Persons in the position of defendant who are asked to cooperate with a GAL investigating important issues in a custody proceeding should not face the prospect of litigation because of the unsworn statements they provided as part of the investigation and litigation have. I would urge the legislature to amend the ad litems guardianship statutes and ad litems attorney guardianship statutes, or ask the Supreme Court to amend common law parajudicial immunity to cover these situations.”
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