Brittner v. Lanzilotta (CA1 3/12/19)

Another judicial immunity case, issued the same day as Gibson. Gibson involved appointees who provided services to a party, distinguishing cases involving appointees who provided services to the court. This case involves an appointee who served both.

The case arises out of a custody dispute. The family court appointed Defendant as a therapeutic interventionist. (Predictably, if you’ve read Gibson or our blog of it, the court refers to this as a TI. Since there is no traditional shorthand for this, and since we can’t claim complete familiarity with what such a thing is, we will, pace Gibson, use the court’s form.) The court used the TI’s recommendations in its decree. Plaintiff then sued the TI for intentional infliction, breach of fiduciary duty, and other things. Defendant moved to dismiss, citing judicial immunity. The trial court granted the motion.

The Court of Appeals affirms. Defendant was appointed both to advise the court and to provide services to the parties. The court says that the services were incidental to the advice and that it is “neither practical nor possible” to separate them. Defendant therefore “performed functions integral to the judicial process.” It distinguishes the case Plaintiff relied on, in which the appointed therapist was just a therapist and did not report to the court.

The court doesn’t say much about the facts and perhaps the record doesn’t, either, being the appeal of dismissal of a Complaint filed by a pro se. If “neither practical nor possible” is a comment on the facts then this case could be consistent with Gibson. But the comment seems to be one of principle: “We do not parcel out therapeutic service from evaluation and reporting to the court. . .” So can an appointed therapist who commits malpractice while providing therapy escape liability because she also advises the judge? Does it make a difference whether the judge accepts or rejects the advice (the court here emphasizes that the family court accepted Defendant’s recommendations)? These thoughts might have given the Gibson court pause. And the court goes on to say “nor do we limit immunity only for services related to the judicial process.” which doesn’t sound like Gibson.

(Opinion: Brittner v. Lanzilotta)