you mr chief justice members of the court counsel me please the court my name is tom zimmerman i represent the plaintiffs appellants in this matter the two issues before the court today or whether or not child custody evaluator should be afforded absolute immunity and whether or not the plaintiff's claims are barred by race should account to the lower courts have expanded both of these judicially created equitable doctrines too broadly and in this case the court should find that under the doctrines of absolute immunity and ray should a kata they should be narrowly construed they should not be expanded beyond their bounds and a court appointed child custody evaluator should be afforded qualified immunity for the investigative reporting function that they perform their still entitle to absolute immunity for when they testify in court under their witness and testimonial privilege but they should be entitled to qualified immunity for the out of court function that they perform in their investigation and they're reporting to the court the immunity issue is one of first impression in illinois now the lower courts relied entirely on a federal court decision affording absolute immunity to the defendant in a putative class action case filed by one of the plaintiffs that sought a section nine hundred eighty three civil rights violation now this court has an opportunity not some district judge this court has an opportunity to set the law on the policy of the state and that the best interests of the children will be protected by affording qualified immunity to custody evalu for their investigative and reporting functions the reason is there will be nothing to deter intentional misconduct fraudulent misconduct if custody evaluators are afforded absolute immunity the purpose behind absolute immunity or qualified immunity is to encourage honest communications to encourage people to act in the best interest of children in this case without the fear of reprisal from a disgruntled parent and if they make a mistake well that's all right because they're trying their best they're trying to act in the best interests of children and we understand that but if they're trying to game the system if they're committing intentional fraud intentional misconduct qualified immunity will protect everything except for that the best interests of the children are of paramount importance and in fashioning what immunity to afford to these individuals the point must keep that in mind the u s supreme court has held that a parent's right to the and custody of their children is a fundamental liberty interest it's a right far more precious than property rights it's a basic civil right and so the question is what is the best approach to protect that what is the best approach for this court to employ in a judicially created immunity to protect the best interests of the children and it's our position that it's qualified immunity because that still affords an opportunity for the child custody of value waiter to try their best to make a mistake yes but to still try their best and act in good faith and they won't get sued if there's absolute immunity however there's absolutely no incentive for that person to try their best excellently no incentive because there's absolutely no punishment there's no harm that can befall them now the thing to remember is the  judge is relying on this investigative report under the statute section five slaves six zero five of the act the marriage act that provides for the appointment of what's called a child custody investigator states that a court may order an investigation a report concerning custodial arrangements for a child and the investigation a report may be made by a child welfare agency is not an attorney that goes out and does this usually a social worker or psychologist the word investigator investigation appears thirteen times in that state you in that section of the act the purpose the function that's performed by this individual is to go out and gather the facts interview witnesses review reports talk to friends see what's going on out there and make a recommendation report that back to the judge and the trial judge is relying on this this is supposed to be impartial this is truthful this is a neutral report and the trial judge relies on nat and making a determination as to who to give custody of the children to if if this report is erroneous if it's cooked if it's intentionally fraudulent on years custody of that child to the unfit parent and the unfit parent may have a history of abuse or violence that won't be brought to the court's attention so the children are the ones who would suffer and that's exactly what happened in this case has done this time and time again he received one hundred thousand dollars for this evaluation and evaluation that typically costs between forty thousand dollars the  haakon noted in a case where this man was an evaluator and he received seventy one thousand dollars for his services and neck case the court noted that usually it's between four and eight thousand his actions in neck case were highly inappropriate highly unusual and the report that he prepared was highly unusual he's done it to another lady helen bates was here today and  he can do it he can do it because there's absolutely no recourse there's no recourse there's nothing that anybody can do now the the apple e its position is well we need to foerster honest communications we need to have the value waiter try to their best and try to act in the best interests of the children in order to have the system work so that you don't have nobody knew that the father lorenzo his he got remarried his then wife laurie had two contacts with roster prior to his appointment to him to perceptor it occasions they discuss the case after that the father demanded that reiser be appointed nobody knew about those pre appointment contacts during the evaluation r ignored unfavorable evidence about the father's threats of violence and history against debra cooney his his ex wife he threatened to kill her he threatened to harm the children he told a witness that he didn't want the children he was only doing this to get back at deborah unfortunately justice thomas the trial judge relied solely on rosters reports in deciding to take custody away from the mother and give it to the father this this investigation lasted nine months this is not a situation where it's an emergent situation and somebody has to go into the house and make a snap decision is whether a child is being abused this is much different than that this was this this took place over nine months during which period of time he looked at medical records and and picked out what would favor his opinion is pre determined opinion and it didn't mention medical diagnoses that counter minutes to read it she was told to bring the kids there under a gag order didn't know why the judge relied soley on eros sitters report he he he bought it hook line and sinker and the kids were taken away from her without testimony or cross examination  it did it did go up on appeal and we were able to get visitation back but unfortunately by the time it got to trial two years later now it's a different standard now the children have been living with the father for two years they were taken away from their mother and had to live with an abusive violent man for two years now he is the custom of your parent now the burden is on deborah to demonstrate that the custody should be transferred back to her  represented by counsel she was represented by counsel were objections made to any of these things objections were made up and down they vigorously objected to the procedure that was in place where  she was given his evaluation and had twenty minutes to read it in court he'd rostered even show up there was no subject of cross examination and so the kids were taken away right then and there and moreover justice tice the children suffered additionally one of the boys christopher in rosters evaluation he said christopher was suicidal and should be immediately admitted to a psych ward upon reading that the trial judge ordered christopher be taken directly from court to a hospital where he was in voluntarily admitted to a psych ward he was medicated was stayed overnight ultimately they evaluated him at the hospital and wondered there's nothing wrong with this boy why is he here and they discharge him so the problem that we have is that the trial judge is do the trial judge it doesn't know because you they'll be reading a report and they don't know that the evidence because the complaint was dismissed on a motion because of immunity and so what the safeguards justice thomas that the evaluator would have i believe was was one of the issues that you were getting at th and your question was wasn't there a safeguard it could be brought up later in court the safeguard for affording qualified immunity to the custody all evaluators is in the event that there is a perhaps a frivolous complaint that's brought against that person all they need is a motion to dismiss because number one you need a heightened pleading standard they the complaint must plead intentional misconduct must plead fraud the who what when where you can't plead punitive damages in a complaint you have to motion it up and bring your evidence to the judge and say here's here's the intentional misconduct that we've found is that sufficient to set does it meet the burden of allowing punitive damages to be brought to the jury in this case there's a gatekeeper and that's the trial church and moreover if it's a frivolous complaint then the party and the attorney have the thread of rule one thirty seven mr orlando did have psychological testing performed from an independent psychologist which ultimately contradicted the conclusions no because it was nobody knew at that time what the evaluation was going to be he took nine months during which time he was only communicating with as as we allege in the complaint based on what we know based on the facts in the evidence he was communicating with the father's attorneys the father's attorneys got an advanced copy of the report the mother didn't know what was going to be in the reports or how she all she knew the last time there was a child custody evaluation many years earlier she was awarded custody she was determined to be the fit parent and as far as she was concerned nothing had changed there was no change in circumstances to warrant taking the children from her and giving them to an abusive hostile parent and so there was really no reason for her to anticipate that there would be anything negative coming from this report and the procedure under the act specifically allows for this report to be presented to the trial court and the court to rely on this report which the court solely did at that initial hearing ross or wasn't there she was totally taken by surprise and had no way to anticipate what would what was going to occur that her children would be ripped from her right there at that very court hearing and one of her boys sent to be in voluntarily admitted into a psych ward there's no way that she could have anticipated that two years later now she has some time to try and sort things out and get some counter testimony but by then the damage is already done the children are ripped from their mother they were given to an abusive unfit parent one of them had already turned eighteen so so he knew by the time we were able to get visitation for him his claim was moved and the standard then change now the father is in custody now the burden is on her to show she should get custody bad but there's a change in circumstances that warrant him losing it and that she should get it back now she has the burden of proof and simply because this is a a court appointed individual doesn't mean that he should be cloaked with absolute cause or judicial immunity the statutes are replete with people who are pointed by the court  qualified immunity for example under the juvenile court a section to dash seventeen point one the court can appoint a special advocate for a minor to protect the minors best interest and the proper delivery of child welfare services they're immune for good faith acts but not for willful misconduct under the probate act section twenty days shaped the court can appoint an appraiser to go out and appraise property and report on its value there's no absolute immunity for that so we shouldn't get hung up with the label that this person is court appointed and therefore there if so facto entitled to absolute immunity the court should instead look at the functional approach to immunity that's what the courts employ they look at the nature of the function that's performed by the individual the nature of this function is investigative it's fact finding it's neutral it's more akin to that of a social worker who goes out and investigates and prepares a report and social workers are only entitled to qualified immunity the fifth seventh night circuits have all held that the of the supreme court of alaska has held that and the supreme court of alaska held a social worker much like a police officer who goes out investigate and prepares an affidavit in support of a search warrant is only a title to qualified immunity i see it my time is is up i thank you for your attention thank you mr zimmerman may please the court i'm scott howie i represent the defendant at the lead in this matter dr lyle rossiter jr this court should affirm the decision of the appellate court affirmed the judgment of the circuit court and reiterate the reasoning of the disk the federal district court and the seventh circuit in a similar matter all of which were based on the principle that individuals who take part in judicial and quezon judicial proceedings are absolutely immune for their acts and statements in connection with those proceedings that's a proposition that's held and recognized not just by the four courts that have already previously addressed this and similar allegations but by a host of courts you know host of other cases all because they recognize that the balancing test that sets public policy of encouraging the free and open expression of opinion against the individual litigants interests in recovery is a balance that weighs heavily in favor of the public policy interest your interest shouldn't make any difference in our analysis that this was a report that was admitted rather than the doctor being called and being so cross examination not at all your honor for one thing that the ability to cross examine a witness or a reporter who presents a written report is something it's always available and something that can be requested it's something that can be the basis for an objection if if that testimony is not allowed cross examination is one of the most important engines of the truth seeking function as we heard not just in this case but in the case before this one today cross examination is part of the proceedings and the transcripts are not part of the record in this case so that's unknown but the fact is that the availability of cross examination is is always there the ability to even though  that's something that's within the judge's discretion and that again is the basis for further litigation it's the basis for a post from ocean as just thomas and justice tice suggested this morning it's the basis for an appeal if a post the trial judge in that case considered it to be in the best interests of the trial judge is the one vested with the responsibility to consider the evidence before him to consider the report that's the allegation  again made by the plaintiff which for purposes of his posture we take as true as we do all of the allegations that that are made in the complaint we take them is true and certainly there's a great room for dispute if this case ever reaches that point considered without the availability of alle ability of cross examination is a basis for objection it's a basis for a motion to reconsider or opposed by motion in order to feel any good blood raise my understanding is that it was raised and the t claims to have exercised those methods of self help claims that they were unsuccessful but it is the self help itself it's the litigation process and the availability of remedies other than tort relief that makes that fair it makes it fair to potentially eliminate the possibility of tort relief to a potentially deserving plaintiff the counter interest and the what ways against the  interest in tort relief is the public policy that everyone recognizes in fostering the free and open exchange of opinions to make dr rossiter liable for the egregious allegations that the plaintiffs have leveled against him is to open the door to further allegations by other plaintiffs who might also be dissatisfied or dismayed with the custody decisions rendered based upon reports by other psychologists or  psychiatrists even if the allegations against dr rossiter are true and again for the purposes of this proceeding we are pretending that they are even if those allegations are true absolute immunity is necessary to provide shelter to provide room for genuine and honest and good study of value waiters professionals who are asked to perform these roles to provide the sort of candid open information that this sort of context requires regardless of whether dr ross or himself might be deserving of that protection in the plaintiff's mind there are a host of other professionals not just  guardians ad litum and child representatives and social workers plenty of people in the social system in that the judicial and quezon judicial system they are are well situated to provide that sort of assistance to the courts in this case the the custodial evaluator was appointed by the court he was acting as an arm of the court and just as the judges are entitled to and demand and require of that sort of immunity in order to make it possible for them to serve in their judicial functions the individuals who are called to testify or to prepare reports in the context of this sort of judicial proceeding also require that same sort of protection ours is an adversarial system of justice and disputes don't come any more adversarial than the child custody context there is always if not a winner at least one loser as the supreme court has as written and in situations that are sufficiently contentious to erupt in litigation there is always the possibility that a conditional decree is not going to be enough to cap that litigation if the parties who are called upon to make these professional evaluations cannot be secure in the knowledge that they can make decisions and and make a recommendations and evaluations that will certainly be unpopular with one or both of the parties and they cannot serve those functions to ask them to do so is to ask them to him to risk personal ruin personal financial ruin for the possibility of rendering  decision that want to both parties finds an satisfactory that's a system that would deter all but the most hardy or potentially the most well off from taking part  in this sort of proceeding and who could blame them if this court were for example open to litigation based upon the results that it would render in this case or another case it would be virtually impossible for it to keep that out of its mind the plaintiff in fact acknowledges the fact that what all the cases have held which is that the potential for personal liability in cases of this sort  does chill the speech of professionals and people who are asked to perform in these roles they not only recognize that they embrace it it's part of the plane of arguments that the potential for personal liability is something that in their mind keeps experts honest it's what they describe as the sort of thing that's necessary in order to make sure that there is the fear of personal liability in order to make sure that the professionals render good reports but the put the fear of potential liability does a lot more than that and all of the cases that address absolute immunity talk about what personal liability can do it doesn't just keep experts honest it keeps experts away it keeps experts quiet it keeps them from rendering the sorts of professional opinions that our judicial system so sorely needs bear in mind th dr roster was appointed as the plaintiffs of pointed out under authority of a statute that enable the circuit court to ask for him to provide his assistance and that's a judgment by the legislature that this sort of assistance is valuable in the child custody context it's necessary but in order to encourage good and qualified and competent evaluator to take part in these procedures i decide you're talking about the errors of the trial judge in the custody case and those are if they were errors and we're assuming again within this procedural posture that they were errors but if they were errors they are things that are remedied better remedy through the judicial system in the context of that particular case so we need not exist in unity question if we find  well it's i'm not sure procedurally how this court would address that your honor because that case is not before this court the plaintiffs had the ability to bring it before this court they had the ability to appeal and according to mr zimmerman they did appeal actually secured some of their relief to the fact that the appellate court i did not provide additional relief is perhaps a function of the the judicial system of litigation sorting these sorts of things  out it it's the sort of self help that is available to the plaintiffs instead of the tort liability that they would rather have in this case and again it's that it's that balancing test that makes it fair the notion as he put it that if there's qualified immunity then the good evaluators as he put it will not get sued and that actually is not what qualified immunity stands for absolute immunity provides they can't be sued or can be dismissed on a motion qualified immunity would require the defendant to go through the process of discovery process potentially a trial and eventually the possibility that a find fact might find that he did in fact act wrongly despite a good faith dispute over over what he did that immunity is insufficient because it's not enough to encourage evaluators are professionals in similar roles to provide the sort of candid unfettered information and opinion that the system demands of them absolute immunity is enough because it cuts off cases at the stars the possibility as many courts have recognized that that might also cut off some meritorious cases is deemed to be acceptable in the context of the balancing test that this court is called upon to make not just because the interest in safeguarding that exchange of ideas is so valuable but because the elimination of the tort remedy is not so onerous and the reason it's not so is because there are so many other avenues of self help the possibility of objection the possibility of impeachment of an expert under the fact that are known or that are alleged to be the case here i'm struck in fact by all the many things that mr zimmerman raised this morning some of which actually are in the pleadings not all of them but if those things are true and if those things are provable then that's the sort of evidence the sort of impeachment evidence the trial lawyers salivate over they would love to have that sort of argument to be able to make it you would judge or to an appeals court or this court that's the sort of thing and those are the sorts of contexts the settings in which it's most appropriate to raise that sort of evidence in the first place in the case where it might actually make a difference where it might prevent the injury that the plaintiffs are now claiming rather than being used often civilly in a case of this sort where all they can do is seek recovery for an injury they claim already to have suffered everybody wins in that sense certainly the system wins when the exchange that the free and open and unfettered exchange of opinion even unpopular opinion or even opinion that's likely to make someone very angry is encouraged this system requires that sort of open exchange open exchange of ideas it's the same sort of immunity that protects this court and every other court in the state and it should have protect dr roster and other custodial value waiters and other professionals who serve in similar roles when they act as an acknowledge we are pretending that the allegations of the complaint are true for purposes of this is posture you have the plaintiff's complaint and the things that the point of says that my client did those are things that any  plaintiff might be able to say and mr zimmerman's notion that there is some heightened pleading standard for this sort of thing it is nowhere to be found in a procedure that i'm aware of it certainly hasn't been raised in the brits there is nothing preventing the plaintiffs in this case the plaintiffs in the next case from claiming that that the custodial evaluator reported by the court in their case was biased was bought and paid for was incompetent was insufficient all those things that the plaintiff can freely thought throw around as allegations in this case can be made in unfettered manner in the next case regardless of whether they are true regardless of whether they are provable and that is why absolute immunity is essential really in any case but especially in cases in the child custody context i know this court is aware of just how contentious and just how heated and just how emotional those cases can be in a party who is dissatisfied with the result there's no telling what sorts of of litigation what sorts of allegations they might be willing to make even possibly in good faith and even believing them to be true  this is the sort of context that is in which those sorts of allegations are in damage i might also a briefly address that the idea that this goes even beyond the idea of professionals this is not just about court appointed evaluators bear in mind that we're also talking about statements allegedly made to the c f s and in that context this case is not just concerned with professionals like dr ross or this case touches every citizen who might have some reason genuine reason to contact the c f s to contact state authorities about a neighbor child who he or she believes to be in danger what the plaintiffs asked for is not just that you allow deterred from making those sorts sorts of phone calls certainly shouldn't have to wonder if they're worried about the neighbor child next door shouldn't have to worry that making calls of the c f s will subject them private citizens to possibly ruin liability the system protects everybody because it's necessary to protect the innocence this court has recognized a host of other courts have recognized that absolute immunity will do that qualified immunity and the exposure is still involves the exposure to potential liability if i may take a moment to conclude my thought a cli only absolute immunity will accomplish that and that is why it's necessary in this case and why it's been also the gate keeper of the trial judge who lets in the reports isn't that really the crux of the problem in this case the unfortunately justice karma or the trial judge who lets in the report them exorbitant sums can be brought before the problems arose in the underlying issues unfortunately sometimes you don't find out about it until later and in this case the plaintiff didn't find out about many of this of these misconduct and these misdeeds until later in other proceedings when she was indicated as a child abuser by the d c fs and that proceeding then she was finally able to get some cross examination and some of this information came out but that was much later she she she didn't have that ability to bring this information out she didn't know it she he wasn't subject to cross examination and so the the safeguards that the apple e talks about the availability of further litigation justice qamar that that you've just mentioned sometimes that is not a safeguard because you don't know about it at the time and by the time you find out about it it's too late this is an equitable doctrine this is judicially created and the point here is what is the best way to protect the best interests of children whether it whether you expand the scope of this judicially created doctrine as a matter of sound public policy of the state or whether you limit the school so that the children are protected so that you deter afforded absolute immunity to child representatives the shive court the seventh circuit that afforded absolute immunity to guardian ad litum so they addressed this very issue and said these must be attorneys the statute that that provides for the appointment of these people who says that they must be attorneys this court has the ultimate disciplinary power over attorneys you can you can discipline then you can dispose of them and the courts those specific courts recognize that fact and said you know there is a safeguard here these attorneys livelihoods are at risk that's a safeguard to keep them in check to deter them from committing misconduct we don't have that safeguard with the social workers or custody  right i mean when when you listen to mr howard talk about qualified immunity for example you would hope i mean this core you everyone here hopes that the best majority of these people who come in and give the valuations are being legitimate i mean that's the whole right and as a result of that for the very few we're balancing the policy of you saying well it's the best interest of the child to be able to have these yeah actions against these individuals like in your case your complaint rossiter in this case vs the what we hope is the best maturity of people giving their opinions on encumbered by the thought of having balancing policy concerns it is it is absolutely a balance of policy concerns and the balance is this under absolute immunity the the which is what the actually advocates the court system is powerless to deter intentional misconduct by these individuals and the alaskan supreme court had it right on exactly what you're referencing justice thomas they said we're not going to see a flood of lawsuits here number one qualified immunity is sufficient because you have a gatekeeper number t just like you have an defamation were something a secretary because that is the first amendment freedom of speech that's only afforded cough qualified immunity and the individuals the vast majority of them who perform these functions are honest and forthright and are trying to do the right thing maybe they make a mistake but they're honest and they're trying to do the right thing but end it and the problem is you're going to you're going to balance that that minor burden of potentially a lawsuit every now and then when you have a gatekeeper against potentially somebody who's a bad apple that you run across or somebody who's trying to do something honestly and you're and you're going to weigh that against an absolute immunity which  a powerless system to deter these people because there's absolutely nothing there's no teeth in it mr howe he mentioned that if you do this now you're opening it up the floodgates now people are going to of fear about reporting abuse and neglect to d c fs the neighbors going to be afraid to pick up the phone and report child abuse to d c fs section five slash nine of the buz the neglected child reporting act says anybody who in good faith in good faith makes a report of suspected child abuse or neglect is amusing from liability except in cases of willful or wanton misconduct the statute specifically provides  that qualified immunity for something as important as reporting child abuse or neglect so his concerns are unfounded this is sophos tree what we're saying is you have a situation every now and then where you have a bad parent and they're probably going to lose custody the child anyway they have nothing to loose why not buy off the evaluator one liken this case why not do it put the children in the way and use them as a tool to get back at your ex spouse why not do that if the worst thing that could happen is that the trial judge looks at the evaluation and says you know what i don't buy it i'm going to keep the kids with what the other parent who deserves them and then the evaluator goes on and does it again and again and again because he can the parent was going to lose custody anyway there's no teeth to it and what we're asking is protect the children protect the interests of the children when abraham lincoln argued and eight forty six and cows v culls this court held the power of the court to protect all children within its jurisdiction is a very ancient origin and cannot be question the policy of this state should be to encourage honest and truthful communications by child custody of value waiters in custody proceedings and the way to encourage it is proved by providing a mechanism to deter the crooked deter the intentional fraudsters and the charlatans from coming in and polluting that temple of justice qualified immunity for the investigative and reporting function that these child custody evaluators perform is the is the only way to accomplish this means and we ask that you reverse the decisions of the lower courts thank you thank you