PETER J. HUGHES, Jr., Appellant v. LYNN E. LONG; KATHLEEN LACEY; PATRICK J. MCHUGH
No. 99-2037
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 27, 2001
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 97-cv-03304) District Judge: The Honorable Harvey Bartle, III. ARGUED December 14, 2000. BEFORE: NYGAARD, and STAPLETON, Circuit Judges, and DEBEVOISE,* District Judge.
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Recommended Citation “Hughes v. Long” (2001). 2001 Decisions. Paper 37. http://digitalcommons.law.villanova.edu/thirdcircuit_2001/37
* Honorable Dickinson Debevoise, District Judge for the United States District Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
This is the second time we have been asked to resolve issues stemming from divorce and custody proceedings involving Peter and Pamela Hughes. In this apрeal, Peter J. Hughes challenges the District Court‘s grant of summary judgment, dismissing his civil rights claims under
I.
Hughеs‘s claims against Long and McHugh stem from an acrimonious child custody proceeding that took place in the Court of Common Pleas of Chester County between Hughes and his former wife, Pamela Hughes. The custody dispute began when, in the midst of her divorce from Hughes, Pamela filed a Petition for Temporary Custody of the children. In response to this Petition, the court scheduled a Conciliation Conference before a Custody Conciliator. The Custody Conciliator recommended that appellee Long, a licensed clinical social worker, conduct a full custody evaluation. The court adopted this recommendation, ordering Hughes and Pamela to participate in psychological evaluations with Long. According to the order, Long was to report the results of the psychological evaluations to the court and make any recommendations appropriate to a child custody determination. Although the court appointed Long to conduct the evaluation, Long entered into a private contract with the parties whereby each agreed to pay fifty percent of her fee.
In accordance with the court‘s order, Long conducted the evaluation. She interviewed Hughes, Pamela, the children, and others. She also referred Hughes and Pamela to Kathleen Lacey, a psychologist who worked with Long in her custody evaluations, for psychological testing. Because Lacey was not licensed at the time of the evaluations, she practiced under the supervision of appellee McHugh, a licensed clinical psychologist. McHugh did not directly supervise the tests administered by Lacey, but he did review the results and approved her recommendations.
It is not clear what occurred at the conclusion of the psychological testing. Apparently, after completing the psychological tests, Long informally told Hughes her custody recommendation for the children. For reasons unexplained, Hughes was dissatisfied with this recommendation and therefore he hired his own expert, Dr. Gerald Cooke, to evaluate the results of the tests that Long
During the custody hearing, Hughes presented his allegations of fraudulent behavior by Long, Lacey, and McHugh. All three testified during the hearing and denied creating false reports, destroying any originals, or intentionally failing to comply with the court‘s order to release their raw data. Long testified in person and the depositions of Lacey and McHugh were read. Despite Hughes‘s allegations of fraud, the court adopted Long‘s formal recommendation and awarded joint custody to Hughes and Pamela.
Hughes appealed the order of joint custody to the Superior Court of Pennsylvania but later withdrew the appeal. After abandoning his state court appeal, he filed suit against the appellees2 in the United States District Court for the Eastern District of Pennsylvania, alleging interference with his familial rights in violation of the Fourteenth Amendment and his civil rights under
On appeal, we reversed the District Court with respect to its holding that the Rooker-Feldman doctrine warranted a dismissаl of Hughes‘s claims. See Hughes v. MacElree, 168 F.3d 478 (3d Cir. 1998). We also refused to affirm the dismissal of Hughes‘s complaint on the alternative basis that Long and McHugh are entitled to absolute prosecutorial immunity under Ernst. We found that an evidentiary record of appellees’ precise functions with respect to their participation in the underlying custody case had not been developed.
On remand, Long and McHugh filed a motion for summary judgment, reasserting their argument that they are entitled to prosecutorial immunity under Ernst. The District Court granted Long‘s and McHugh‘s motions, agreeing that they are entitled to absolute prosecutorial immunity from Hughes‘s §§ 1983 and 1985 claims. Alternatively, the court held that Long and MсHugh were entitled to witness immunity. The court also held that under Pennsylvania law, Long and McHugh were entitled to immunity from Hughes‘s supplemental state law claims. On December 9, 1999, Hughes filed a timely Notice of Appeal.
II.
Hughes first argues that the District Court erred by holding that Long and McHugh are entitled to absolute prosecutorial immunity pursuant to our holding in Ernst. He argues that appellees did not function as “advocates” for
Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured.”
Even if an official did not enjoy absolute immunity at common law, she may still be entitled to immunity if she performs “special functions” that are similar or analogous to functions that would have been immune when Congress enacted § 1983. See Butz v. Economou, 438 U.S. 478, 406, 98 S.Ct. 2894, 2911 (1978). This “functional approach” looks to the nature of the function performed, not the identity of the actor who performed it and evaluates the effect that exposure to particular forms of liability would likely have on the appropriate exercise of that function. See Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542 (1988). The official seeking immunity bears the burden of showing that it is justified by the function in question. See id.
We have provided social workers absolute immunity for actions involving thе initiation and prosecution of child custody or dependency proceedings. In Ernst v. Child & Youth Servs. of Chester County, 108 F.3d 486 (3d Cir. 1997), we held that child welfare workers are entitled to absolute immunity for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency proceedings, and that this immunity was broad enough to include the formulation and presentation of recommendations to the court in the course of the proceedings. In reaching this conclusion, we first reasoned that, similar to prosecutors who are responsible for the initiation of criminal proceedings, child welfare workers are responsible for bringing dependency proceedings and must exercise independent judgement in determining when to bring such proceedings. We also noted that, like prosecutors, child welfare workers often have to make decisions in a short amount of time and with limited information. See id. at 495-96.
Next, we reasoned that public policy considerations support absolute immunity for child welfare workers. See id. We noted that the fear of personal liability would compromise a worker‘s independent judgement, rendering her overly cautious in dangerous situations where immediate action on behalf of a child is needed. We also noted that the likelihood of suits in retaliation for the initiation of dependency рroceedings was great, given a parent‘s predictable resentment of state interference in the parent-child relationship. Finally, in concluding that child welfare workers deserve absolute immunity, we recognized that alternative mechanisms exist to prevent unconstitutional conduct by child welfare workers. These mechanisms include appellate review of a judge‘s decision in a dependency hearing and agency supervision of a child welfare worker. See id.
Here, the District Court held that the functions of Long and McHugh in the child custody proceeding were similar to roles of prosecutors and child welfare workers. According to the court, even though Long and McHugh were initially impartial fact-finders, once they arrived at a recommendation they became “de facto advocates for their recommendations.” We disagree and hold that Long and McHugh enjoy judicial immunity because they acted as “arms of the court,” similar to a guardian ad litem or a court-appointed doctor or psychologist, a non-judicial person who fulfills a quasi-judicial role at the court‘s request.
Although Long and McHugh acted like prosecutors and child welfare workers in formulating and presenting recommendations to the court, their roles differed in other significant respects. Most notably, Long and McHugh did not initiate the custody proceeding. Indeed, the court appointed Long after the proceeding began and, thus, Long had no discretion to initiate or “prosecute” the custody proceeding. Similarly, McHugh only became involved after the proceedings began.
Next, in formulating and making their recommendations to the court, Long and McHugh were not “advocates of the State” like prosecutors and child welfare workers. Rather than making arguments, Long and McHugh merely offered their opinions, based upon fact-gathering, in order to aid and inform the family court. Long‘s contract states: “[w]henever possible, I make every reasonable attempt to serve as a court appointed impartial examiner, rather than an advocate in custody litigation.” J.A. at 1695. Thus, Long and McHugh functioned more like witnesses or assistants to the court than advocates.
Finally, although not a dispositive differenсe, Long and McHugh were not acting under any time constraints and were not forced to make any “snap judgments” based on
Although not cloaked in prosecutorial immunity, Long and McHugh are entitled to judicial immunity because they acted as “arms of the court” and performed functions integral to the judicial process. Specifically, the court appointed Long to gather information, conduct an evaluation, and make a recommendation to aid the custody determination. McHugh, although not directly appointed, was indirectly assigned this task because his review of the court-ordered psychological evaluations was necessary for their completion. In essence, Long‘s and McHugh‘s functions were to engage in neutral fact-finding and advise the court. These functions are intimately related and essential to the judicial process because they aid and inform the court in its discretionary duties. In the absence of the extensive fact-finding and recommendations of child-custody evaluators, courts would be required to make custody recommendations with little, if any, unbiased information about the family. Given this integral relationship to the court, we hold that Long and McHugh are entitled to judicial immunity.
Long‘s and McHugh‘s similarity to a guardian ad litem, an individual who enjoys judicial immunity, supports this conclusion. A guardian ad litem is a person appointed by the court in custody proceedings to serve as an investigator and gather information about the parents and the children and report back to the court recommending which parent
Moreover, Long and McHugh performed functions similar to court-appointed doctors and psychiatrists, who have also received absolute judicial immunity. For example, in McArdle v. Tronetti, 961 F.2d 1083 (3d Cir. 1992), we held that a prison doctor who conducted a psychiatric exam on an inmate at the request of the court had absolute judicial and witness immunity. Specifically, we reasoned that the psychiаtrist‘s conduct in completing the exam and furnishing a written report to the court at the request was entitled to absolute judicial immunity because the psychiatrist was “functioning as an arm of the court.” Id. at 1085. We also held that the psychiatrist‘s report and recommendation to the court constituted testimony protected by absolute witness immunity.
Similarly, in Moses v. Parwatikar, 813 F.2d 891 (8th Cir. 1987), the Eighth Circuit granted absolute judicial and
Finally, in Meyers v. Contra Costa County Dep‘t of Social Servs., 812 F.2d 1154 (9th Cir. 1987), the Ninth Circuit granted absolute judicial immunity to counselors employed by a family court. The counselors’ duties included mediation of custody and visitation disputes, investigating matters pertaining to such disputes, and providing reports to the court. The Ninth Circuit affirmed the District Court‘s holding that the counselors were “officers of the court,” reasoning that they were “performing a judicial function at the direction of the court.” Id. at 1159. Given the nature of their duties, the counselors were granted “quasi-judicial” immunity.
These cases are factually identical to ours and support our conclusion that Long and McHugh are entitled to judicial rather than prosecutorial immunity. Accordingly, we affirm the District Court‘s grant of summary judgment motion in favor of Long and McHugh dismissing Hughes‘s §§ 1983 & 1985 claims on the basis of judicial immunity.4
III.
Hughes next contends that the Pennsylvania Supreme Court‘s holding in LLMD of Michigan, Inc. v. Jackson-Cross
In predicting how a matter would be decided under state law we examine: (1) what the Pennsylvania Supreme Court has said in related arеas; (2) the decisional law of the Pennsylvania intermediate courts; (3) federal appeals and district court cases interpreting state law; and (4) decisions from other jurisdictions that have discussed the issues we face here. See Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 406 (3d Cir. 2000). As the appellant indicates, LLMD provides the most recent statement from the Pennsylvania Supreme Court on the witness immunity doctrine and its contours.
In LLMD, the Pennsylvania Supreme Court carved out an exception to the state‘s long standing principle that communications which are “issued in the regular course of judicial proceedings and which are pertinent and material to the redress or reliеf sought” are immune from civil liability. Post v. Mendel, 510 Pa. 213, 221, 507 A.2d 351, 355 (Pa. 1986). LLMD involved an expert witness hired by a plaintiff to calculate and testify regarding his lost profits resulting from a breach of contract. During cross-examination of the plaintiff‘s expert, defense counsel established that the expert‘s lost profits calculation contained an error that completely undermined the basis for the damage amount. Because the expert had not calculated the damages himself, he was unable to correct
Before ruling on the expert‘s defense, the LLMD court reviewed the public policy considerations underlying the judicial and witness immunity doctrines. The court stated, “`[t]he privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to cоunsel to enable him to best represent his client‘s interests.‘” Id. at 189, 740 A.2d at 302 (quoting Binder v. Triangle Publ‘n, Inc. 442 Pa. 319, 275 A.2d 53 (1971)). Quoting extensive language from Briscoe v. LaHue, the Supreme Court‘s seminal witness immunity case, the court also explained that “`a witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the fact finder of fact of candid, objective, and undistorted evidence.‘” Id. (quoting Briscoe v. LaHue, 460 U.S. 325 (1983)).
The court recognized the continuing significance of these policy concerns but nonetheless concluded that extending witness immunity to actions arising from the negligent formulation of an opinion would not аddress these concerns. See id. at 191, 740 A.2d at 306. Rather, allowing liability for this sort of negligence would enhance the judicial process “by requiring that an expert render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.” Id. The court, however, was careful to point out the limits of its holding. It stressed that experts were still immune from liability premised on the substance of an expert‘s opinion. Further, the court
Although the LLMD court did not expressly prohibit the applicability of its exception to witness immunity to court-appointed witnesses, we believe that, if faced with the issue, the Pennsylvania Supreme Court would not disturb the complete immunity that court-appointed witnesses currently enjoy. See, e.g., Clodgo v. Clodgo, 411 Pa. Super. 267, 601 A.2d 342 (Pa. Super. Ct. 1992) (holding that witness immunity doctrine insulates a court-appointed witness from liability premised upon medical malprаctice). Our conclusion is largely premised on the differences between privately retained experts, which were at issue in LLMD, and court-appointed experts, which are at issue in this case. As we emphasized earlier, court-appointed experts hold a unique role in judicial proceedings. Because they work on behalf of the court rather than any one party, court-appointed experts provide unbiased, neutral information and recommendations and aid the court in its decision-making process. This neutral information is essential to the court, which cannot make necessary observations and gather rеlevant facts without assistance. Thus, it is crucial to the judicial process that court-appointed witnesses are free to formulate and make recommendations unhindered by the fear of liability. Without such immunity, these “advisors” may be reluctant to assist the court, thereby depriving the court of its sole source of neutral information.
While privately retained experts also provide information to the court, they differ in that they enter into a private contract with a party and typically receive compensation for their testimony from that party. Therefore, to some extent, they are expected to provide a recommendation that favors their client. See
Moreover, we believe that LLMD‘s exception to immunity for the negligent formulation of an opinion is confined to privately retained experts because they owe their clients a duty of reasonable care by virtue of their contractual relationship. As explained by the LLMD court, the purpose of its witness immunity exception is to ensure that expert witnesses “render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.” LLMD, 559 Pa. at 307, 740 A.2d at 191. Here, we have neither a private expert nor a cause of action for professional malpractice, both of which compelled the exception in LLMD. Rather we have a court-appointed witness whose role in the judicial proceedings differs from a private expert. Further, we have state law claims for abuse of legal process, defamation, false light, invasion of privacy, civil conspiracy, fraud, tortious interference with familial relations, breach of contract, and breach of implied contract, which do not parallel a cause of action for negligence. Therefore, we believe that LLMD‘s exception to
IV.
In sum, Long‘s and McHugh‘s duties were similar to those of a guardian ad litem or court-appointed psychiatrist or doctor, both of whom are “agents” or “arms” of the court. Therefore, we will affirm the District Court‘s grant of summary judgment with respect to appellant‘s §§ 1983 and 1985 claims on the basis of judicial immunity. Moreover, we affirm the District Court‘s grant of summary judgment with respect to appellant‘s state law claims because we believe that, if faced with the issue, the Pennsylvania Supreme Court will not extend LLMD‘s exception to witness immunity to court-appointed witnesses.
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