2013 NMCA 070
N.M.2013Background
- Father and Mother divorced; four children, including Daughter, are involved in ongoing custody proceedings starting May 2006.
- Guardian ad Litem (GAL) was appointed to represent the Children a year into the custody case and provided reports and recommendations adopted by the court.
- Father filed a tort action on behalf of Daughter against Mother and the GAL alleging various injuries; the district court dismissed for lack of standing.
- Father pursued disciplinary complaints against the GAL; district court issued orders limiting his filings and communications, including a website that published materials about the GAL.
- GAL sought and obtained a permanent injunction requiring removal of internet materials and prohibiting republishing; Father challenged this Internet Order on jurisdiction and First Amendment grounds.
- Settlement between Father and Mother in May 2011 released Mother from liability for pre-May 31, 2011 claims but did not expressly release the GAL; appeal concerns remained for the GAL-related claims and the Internet Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Father to sue GAL on Daughter’s behalf | Father has standing under Rule 1-017 NMRA as parent to sue on behalf of his child against the GAL for actions within the GAL’s capacity as guardian ad litem. | GAL contends Father lacks standing and that immunities apply to GAL wipe out claims. | Father has standing; GAL immunity partly applies. |
| GAL immunity from suit under Collins framework | GAL was immune as an arm of the court when acting within assigned duties. | Some alleged actions exceed the appointment and are not immune. | GAL immune for most acts within scope; some intrusions (blocking calls) reversed for factual question. |
| Internet Order jurisdiction and First Amendment analysis | District Court had jurisdiction to issue the Internet Order; order was necessary to curb harassment. | Internet Order violated subject matter jurisdiction and restrained protected speech without proper factual findings of defamation. | District Court had jurisdiction; however, Internet Order cannot rest on defamation-less basis; remanded for defamation findings. |
| Defamation findings on remand | Disciplinary complaint publication may be defamatory and thus potentially unprotected. | Publication and motives should be considered within immunity and scope. | Defamation merits factual resolution on remand; not resolved on record at issue. |
| Effect of the May 2011 settlement on appeal | Settlement did not release GAL; standing and liability issues persist against GAL. | Release extends to all claims against Mother, potentially moot as to GAL. | Appeal as to GAL remains; settlement does not moot GAL claims. |
Key Cases Cited
- Collins ex. rel. Collins v. Tabet, 111 N.M. 391, 806 P.2d 40 (1991) (parents may sue guardians ad litem for injuries caused by guardians acting as private advocates)
- Payne v. Hall, 139 P.3d 599 (2006-NMSC-029) (joint and several liability; conspirators liable for full injury)
- Ettenson v. Burke, 130 P.3d 440 (2001-NMCA-003) (civil conspiracy requires independent unlawful act causing harm)
- In re Guardianship of Arnall, 610 P.2d 193 (1980) (guardianship immunity and functions as arm of the court)
- Ottino v. Ottino, 21 P.3d 37 (2001-NMCA-012) (district courts can enforce ancillary contracts despite jurisdictional limits over main dispute)
- Sundance Mech. & Util. Corp. v. Atlas, 789 P.2d 1250 (1990) (power to enter inquiry rests in district court's general jurisdiction)
- State v. Vargas, 181 P.3d 684 (2008-NMSC-019) (right to immunity grounds and right for any reason doctrine applies)