We blog this case about an adoption because it says some things about judicial immunity.

Plaintiffs agreed to adopt an unborn child. The statutes say that prospective parents must first file a report about themselves, prepared by a third party, on the basis of which the court  can certify them as “acceptable.” For that Plaintiffs hired Defendant, one of several private outfits that provide such reports. But it seems – the details aren’t given – that Defendant had doubts about Plaintiffs’ acceptability; in any event, there were “disagreements” between them. So Plaintiffs fired Defendant and hired another company. The baby was born; Plaintiffs obtained temporary custody; the new outfit filed a report pronouncing them acceptable. But then the court, without explanation, denied certification. At a later status conference the judge revoked the temporary custody and had the child picked up by CPS.

It turned out that when Plaintiffs fired Defendant it had sent a letter to the judge “expressing concerns” about Mr. Plaintiff. The judge mentioned this at the status conference; its not clear whether this was the first Plaintiffs had heard of it but they hadn’t seen it. The judge ordered Defendant to produce it for them. He also set, as Plaintiffs had requested, an evidentiary hearing. After that hearing, at which the judge heard testimony from Plaintiffs and both reporting outfits, he certified the Plaintiffs. But by then – months after CPS took the baby – CPS had placed it with another family. Plaintiffs sued Defendant for various torts, including negligence, alleging “untruths and misstatements” in the letter. Defendant moved for summary judgment, arguing judicial immunity. The trial court granted the motion; Plaintiffs appealed.

The Court of Appeals reverses. Courts have extended immunity to “court officer, employees, or agents who perform functions intimately related to or . . . an integral part of the judicial process” – e.g, probation officers, doctors, and various social workers. There are limits, though; probation officers are immune regarding presentence reports, for example, but not for supervising probationers. The court assumes, without deciding, that immunity exists for those who submit certification reports as called for in the statute. But “in submitting its ex parte letter, [Defendant] was not acting pursuant to delegated judicial authority or any mandate from the legislative or executive branch.” The letter wasn’t in the form of, and didn’t contain some information the statutes require of, a certification report. (One might ask why, if the letter was nothing official, the judge considered it. Or why, if Defendant was merely a witness, it can be sued in negligence for inaccuracies in its evidence. And what about the form of the report? If somebody forgets to put into it an element that the statute requires does that destroy immunity?)

“In evaluating whether conduct is protected by judicial immunity, some courts consider whether due process protections exist for individuals potentially aggrieved by the underlying conduct – a consideration we also deem relevant.” What the court means is that the statutory report must be copied to the prospective parents whereas they didn’t get a copy of the letter. Defendant’s argument that it should have immunity because it was acting in the best interest of the child “sweeps too broadly” because “if [Defendant] had qualms about [Plaintiffs’] suitability as adoptive parents, it could have communicated those concerns in a court filing that afforded [Plaintiffs] notice and an opportunity to be heard . . . .” (Does that mean that if, instead of sending a letter to the judge, Defendant had filed the same letter with the clerk and sent a copy to Plaintiffs then it would have immunity?)

Speaking of judicial immunity, shouldn’t that judge should be happy he has it? As far as we can tell from the opinion, he got a letter. He didn’t tell the parties about it. He based a ruling on it (denying certification while having nothing else before him contesting it). When confronted with the fact that Plaintiffs never saw it he issued an order for Defendant to produce it rather than give them a copy himself right away. At the same time, he revoked custody and ordered an evidentiary hearing two months in the future. After that hearing he sat on his ruling for at least another month before issuing it. And by then the baby was gone.   

An alternative is that he assumed that the letter was a report, even though it didn’t meet the requirements of one and even though he also had another one that contradicted it. (Most likely this is what he did; should the Court of Appeals have paid some attention to that, or at least explained why it didn’t mean anything?) In either event, how could the instinctive reaction of a judge not be to alert the parties and set a hearing sua sponte to sort things out? He is the only player in this tragedy who will suffer no consequence of his failures.

Eight footnotes in this, nothing unusual by Division One standards. But it has something we hadn’t noticed before: a footnoted section heading. The heading “Conclusion” is footnoted to a note that addresses an argument the court decided not to address. Wrong on so many levels.

(Opinion: Griggs v. Oasis)