Civil Litigation FLASHPOINTS March 2021

Jamie N. Noonan, Katten Muchin Rosenman LLP, Chicago
312-902-5492 | E-mail Jamie N. Noonan

Granting Immunity to “Eyes and Ears of the Court”

In Nichols v. Fahrenkamp, 2019 IL 123990, 160 N.E.3d 17, 442 Ill.Dec. 444, the Illinois Supreme Court held that quasi-judicial immunity shields guardians ad litem acting as reporters or witnesses from civil liability for conduct within the scope of their appointment. The doctrine of quasi-judicial immunity extends the immunity traditionally afforded to judges acting within the scope of their judicial duties to other actors in the judicial process. The key question the Nichols court considered was whether the function the guardian ad litem performed was more akin to an advocate for the minor, independent of the judicial process, or an impartial agent of the court. The court found that the guardian ad litem’s function was in line with the latter and therefore granted him immunity.

Facts of the Case and Procedural Background

In 2004, Alexis Nichols, an 11-year-old minor, received a $600,000 settlement award for injuries sustained in a motor vehicle accident. The probate court appointed Nichols’s mother to administer her estate. The court also appointed David Fahrenkamp as guardian ad litem, specifically ordering that “[t]he court being fully advised in the premises does hereby appoint David Fahrenkamp as Guardian Ad Litem for the minor child.” 2019 IL 123990 at ¶3.

In 2012, Nichols filed a lawsuit against her mother alleging that she used $79,507 of the settlement funds for her own benefit rather than for Nichols’s benefit. Nichols recovered $16,365, a motor vehicle, and $10,000 in attorneys’ fees, but the court found that Nichols’s mother was not liable for the full amount when Nichols had a “guardian ad litem who approved the estimates and expenditures.” 2019 IL 123990 at ¶4.

Nichols then filed suit against Fahrenkamp, claiming that he committed legal malpractice by approving expenditures that were not in Nichols’s best interests. Specifically, Nichols alleged that Fahrenkamp acted negligently in failing to monitor and audit her mother’s requested expenditures and by failing to report irregularities to the court. 2019 IL 123990 at ¶5. Fahrenkamp argued at the motion to dismiss stage and again at summary judgment that he was not liable for any negligence because guardians ad litem are afforded quasi-judicial immunity for conduct within the scope of their appointment. The court denied his motion to dismiss but later granted his motion for summary judgment. In granting summary judgment, the court reasoned that absent specific duties in the order of appointment, Fahrenkamp’s role as guardian ad litem was limited to providing recommendations to the court based on the best interests of the child. Since the Illinois appellate court had previously granted immunity for similar roles in Vlastelica v. Brend, 2011 IL App (1st) 102587, 954 N.E.2d 874, 352 Ill.Dec. 791 (child representative), and Heisterkamp v. Pacheco, 2016 IL App (2d) 150229, 47 N.E.3d 1192, 400 Ill.Dec. 227 (court-appointed expert who assisted in custody evaluation), the court granted Fahrenkamp immunity. 2019 IL 123990 at ¶7.

On appeal, the appellate court reversed the summary judgment order. The appellate court centered its analysis on Stunz v. Stunz, 131 Ill. 210, 23 N.E. 407, 409 (1890), and found that Fahrenkamp assumed a “duty” to advocate for Nichols rather than solely report to the court. A grant of immunity would be inconsistent with that duty. 2019 IL 123990 at ¶8. The appellate court distinguished Vlastelica, relied on by the circuit court, noting that it was a dissolution of marriage case involving opposing parties “who might sue or otherwise harass a guardian ad litem out of frustration with the results of the proceedings,” whereas the appellate court case involved the distribution of assets and only one party, which eliminated the need to afford immunity in order to protect the guardian ad litem from harassment. 2019 IL 123990 at ¶9. Justice Goldenhersh dissented. 2019 IL 123990 at ¶10.

Quasi-Judicial Immunity and the Functional Test

In common law, it is a well-established principle that judges are immune from liability for the acts they perform within the scope of their judicial duties. See 2019 IL 123990 at ¶14, citing Pierson v. Ray, 386 U.S. 547, 18 L.Ed.2d 288, 87 S.Ct. 1213, 1217 – 1218 (1967). Quasi-judicial immunity extends this principle beyond judges to other actors in the judicial process. To determine whether a role is “sufficiently connected to the judicial process to merit . . . absolute immunity,” courts apply the functional test, which considers:

(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. 2019 IL 123990 at ¶15, quoting Cleavinger v. Saxner, 474 U.S. 193, 88 L.Ed.2d 507, 106 S.Ct. 496, 501 (1985).

The functional test requires that courts look beyond an actor’s title and to the core of his or her role to make an immunity determination. 2019 IL 123990 at ¶¶15 – 16.

The Illinois Supreme Court’s Analysis

In a unanimous opinion by Justice Garman, the court began by applying the functional test. The court emphasized that “Fahrenkamp did not either receive or forfeit immunity simply by acquiring the title ‘guardian ad litem.’ ” 2019 IL 123990 at ¶16. Instead, the court looked past Fahrenkamp’s title to the function that he performed. However, the circuit court’s order appointing Fahrenkamp as guardian ad litem in 2004 did little to specify how it intended him to act. The order stated only that “[t]he court being fully advised in the premises does hereby appoint David Fahrenkamp as Guardian Ad Litem for the minor child.” 2019 IL 123990 at ¶34. Therefore, the court looked beyond the order of appointment and considered how statutes and past cases have defined the function of guardians ad litem.

Fahrenkamp argued that his function as guardian ad litem was that of a reporter and witness, analogous to the role of guardian ad litem described in the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. The IMDMA establishes a framework that includes a trichotomy of actors to ensure that courts adequately consider the interests of minors: the child’s attorney; the guardian ad litem; and the child representative. The attorney provides independent legal counsel, the guardian ad litem submits recommendations to the court, and the child representative advocates for the best interests of the child. 2019 IL 123990 at ¶17. Of these three positions, the court reasoned that the guardian ad litem is most closely associated with the judicial process, with the child representative following behind. 2019 IL 123990 at ¶18. Fahrenkamp conceded that he was not appointed as guardian ad litem under the IMDMA but argued that he was appointed under the court’s inherent authority to fulfill a function in line with that described in the IMDMA. 2019 IL 123990 at ¶19. See also In re Mark W., 228 Ill.2d 365, 888 N.E.2d 15, 21, 320 Ill.Dec. 798 (2008) (finding that circuit courts have inherent authority to appoint guardian ad litem).

Nichols argued that Fahrenkamp’s function as guardian ad litem was instead that of an advocate and that the IMDMA’s description of a guardian ad litem was inapplicable in a distribution-of-assets case. Instead, she urged the court to apply the framework for a guardian ad litem under the Probate Act of 1975, 755 ILCS 5/1-1, et seq. Article XI of the Probate Act, 755 ILCS 5/9-1, et seq., provides that a court may appoint a guardian ad litem to “represent” a ward and that the appointee may “file an answer” and “appear and defend” on behalf of the ward. 2019 IL 123990 at ¶20. In other words, a guardian ad litem under the Probate Act functions as an advocate. Nichols also argued that the appellate court was correct in applying Stunz which also described the role of a guardian ad litem as an advocate. 2019 IL 123990 at ¶21, citing Stunz, supra, 23 N.E. at 407 – 408.

The court rejected Nichols’s argument under the Probate Act and Stunz and agreed with Fahrenkamp’s characterization of his role of guardian ad litem as a witness and reporter, like in the current version of the IMDMA and In re Mark W. The court noted that the position that guardians ad litem function as advocates has largely been left behind: the Stunz decision is nearly 130 years old, and Article XI of the Probate Act dates back to 1979. In contrast, “Illinois cases in the twenty-first century that involve a guardian ad litem treat that guardian ad litem as a reporter or a witness and not as an advocate.” 2019 IL 123990 at ¶35. The court therefore denied Nichols’s invitation to view the role of a guardian ad litem through an outdated lens.

In Nichols, Fahrenkamp reviewed requests for disbursements of funds and reported to the court on whether he approved or disapproved. His actions were consistent with the characterizations of guardians ad litem as reporters under both the IMDMA and In re Mark W. Since Fahrenkamp functioned as a reporter and witness and not as an advocate, the court granted immunity. 2019 IL 123990 at ¶35.

The court’s conclusion is consistent with the overwhelming weight of authority from other state supreme courts and federal appellate courts that have granted immunity to persons who performed a similar function to Fahrenkamp’s. See 2019 IL 123990 at ¶¶42 – 44 (collecting cases). The court also found support from the Illinois appellate court — albeit, indirectly — in Vlastelica, supra. To be sure, the appellate court has never expressly held that guardians ad litem have immunity, and the issue appeared before the court as a matter of first impression in Nichols. Yet, the appellate court’s decision granting immunity to a child representative in Vlastelica necessitated the conclusion that guardians ad litem also have immunity. 2019 IL 123990 at ¶¶45 – 46. As previously noted in the discussion regarding the trichotomy of actors under the IMDMA, the court opined that guardians ad litem are most connected to the judicial process, followed by child representatives. Indeed, child representatives have “some degree of independence from both the child’s wishes and the court,” while guardians ad litem are far more connected with the judicial system and act as the “eyes and ears of the court.” 2019 IL 123990 at ¶46, quoting In re Mark W., supra, 888 N.E.2d at 20. Thus, the court reasoned that “the case for finding that . . . guardians ad litem have quasi-judicial immunity is even stronger than the case for child representatives” and “the [appellate] court in Vlastelica could not conclude that child representatives have immunity unless it also presumed that guardians ad litem do as well.” 2019 IL 123990 at ¶46. Any other conclusion would be untenable.

Effect of the Case

The Nichols court’s grant of quasi-judicial immunity for guardians ad litem should provide some peace of mind to attorneys appointed as guardians ad litem. It ensures that guardians ad litem — who play a critical role in the administration of justice — are not subject to liability for exercising their professional judgment in their representations to the court. As a practical matter, attorneys will likely be more willing to accept guardian ad litem appointments knowing that immunity will be afforded to them because of the Nichols opinion.

Moreover, Nichols demonstrates the confusion that may arise when a term of art like guardian ad litem is used inconsistently in a variety of contexts. While the court provided much needed clarity to the modern role of a guardian ad litem, it did not eliminate the possibility of future misunderstandings. In line with the court’s direction here, circuit courts going forward must work to proactively prevent misunderstandings by specifying an appointee’s role in the order of appointment. Detailed orders of appointment will also enable appointees to more accurately perform the role that the court intended, thereby promoting judicial economy.

For more information on civil litigation, see CAUSES OF ACTION: REAL PROPERTY ACTIONS (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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