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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christoffersen v. State, Court Custody Investigator's Office (11/5/2010) sp-6522

Christoffersen v. State, Court Custody Investigator's Office (11/5/2010) sp-6522

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
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DUSTY CHRISTOFFERSEN,                              ) 
                                                   )    Supreme Court No. S-13539 
                        Appellant,                 ) 
                                                   )    Superior Court No. 3-AN-08-6296 CI 
        v.                                         ) 
                                                   )    O P I N I O N 
STATE OF ALASKA, COURT                             )   No. 6522 - November 5, 2010 
CUSTODY INVESTIGATOR'S                             ) 
OFFICE,                                            ) 
                        Appellee.                  ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, John Suddock, Judge. 

                Appearances:        Dusty    Christoffersen,    pro   se,  Anchorage, 
                Appellant.        Laura     Fox,   Assistant     Attorney     General, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for Appellee. 

                Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers,   Justices. 

                WINFREE, Justice. 


                In   the   course   of  performing     her   duties,   a  court-appointed      custody 

investigator received a police report regarding an allegation that the child whose custody 

was   being   investigated   had   engaged   in   sexual   misconduct.      The   investigator   later 

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included this information in her custody report, but did not notify the child's parents or 

the Office of Children's Services at the time she received the police report.                During a 

period of time that apparently began before the custody investigator received the police 

report and perhaps continued until the custody investigator issued her report, the child 

committed further sexual misconduct, this time against his half-sister. The child's father 

and   stepmother   filed   suit   against   the   State   of   Alaska   for   damages,   arguing   that   the 

custody investigator had a duty to warn them upon learning of the child's previous 

misconduct.      The superior court dismissed the suit on summary judgment.                  Because 

court-appointed custody investigators are entitled to absolute quasi-judicial immunity 

from   suits   arising   from   the   performance   of   their   duties   and   because   that   immunity 

extends to the State, we affirm. 


                Mark Christoffersen married Brandi Martin and they had a son, M.C., in 

1992.   When the couple divorced in 1999, Brandi was awarded primary custody of M.C. 

and Mark was granted visitation rights.   In 2001 Brandi and M.C. moved to Florida and 

Mark lost contact with them for several years.           In March 2006 Mark filed a motion to 

modify the custody order, seeking primary physical custody of M.C.                   After the court 

served Mark's motion on Brandi, the two resumed contact with each other, and Mark 

resumed   visitation   with   M.C.   shortly   thereafter.   By   the   time   Mark   and   M.C.   were 

reunited, Mark had married Dusty and the couple had two young daughters. 

                In May 2006 Master Andrew Brown responded to Mark's motion to modify 

M.C.'s custody order by directing the Alaska Court System's Custody Investigator's 

Office (the State) to conduct an investigation and prepare a custody report.                The State 

assigned the case to a custody investigator.  The custody investigator interviewed a 

number of people over the course of her investigation and requested information from 

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collateral resources, including the Anchorage Police Department (APD). 

                In late June 2006 APD responded to the custody investigator's information 

request.   Included in APD's response was a report concerning an April 2006 incident in 

which M.C. had inappropriately touched a two-year-old girl.                According to the report, 

M.C. admitted he had touched the child, but the child's mother did not pursue criminal 


                The   custody   investigator   distributed   her   completed   report   to   the   court, 

Mark, and Brandi in late October 2006.               The custody report addressed a number of 

custodial   issues,   including   the   allegation   that   M.C.   had   inappropriately   touched   the 

young child.      From this report the Christoffersens apparently learned for the first time 

about M.C.'s inappropriate contact with the young child. 

                A few days after the custody report was distributed, the Christoffersens 

contacted the police and told them that M.C. had sexually abused their five-year-old 

daughter - M.C.'s half-sister - beginning soon after he resumed visitation with Mark. 

During an interview with police, M.C. admitted perpetrating sexual misconduct against 

the girl.   M.C. was subsequently adjudicated on a charge of sexual assault of a minor in 

the fourth degree. 

                In April 2008 the Christoffersens filed suit against the State, seeking ten 

million dollars in damages.       They alleged the custody investigator violated her duty to 

protect their children by not warning the Christoffersens about the allegations of M.C.'s 

prior sexual misconduct immediately after she received the APD report.  They also 

alleged     the   custody    investigator     violated    AS    47.17.020's     mandated      reporting 

requirements by not forwarding the APD report about M.C. to the Office of Children's 

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Services (OCS).1      After the State filed its answer to the complaint, the Christoffersens 

filed a response adding their belief that by not notifying them or OCS as soon as she 

received   the   APD   report   concerning   M.C.'s   March   2006   misconduct,   the   custody 
investigator violated several additional statutes contained in Titles 9 and 47.2 

                The State filed two motions for summary judgment.  In its first motion the 

State    argued    that  (1)  custody    investigators    are  entitled   to  absolute   quasi-judicial 

immunity from civil suits arising out of the performance of their duties, and (2) this 

immunity bars the Christoffersens's vicarious liability claim against the State.                  In its 

second motion the State argued that the custody investigator had no actionable tort duty 

to warn about or control M.C.'s conduct under the statutes cited by the Christoffersens, 

Alaska case law, or public policy. The Christoffersens filed a cross-motion for summary 

judgment,      asserting    that   the   custody   investigator      violated    mandated     reporting 


                In November 2008 the superior court granted both of the State's summary 

judgment   motions,   disposing   of   the   Christoffersens's   complaint   in   its   entirety   and 

denying their cross-motion for summary judgment sub silentio.                     Dusty appealed the 

        1       AS     47.17.020    requires    certain  classes   of  persons,    including    doctors, 

teachers, and peace officers, to report  suspected physical, mental, or sexual abuse. 

        2       The   Christoffersens   alleged   that   the   custody   investigator   violated   the 

following statutes:      AS 09.10.065 ("Commencement of actions for acts constituting 
sexual offenses"); AS 09.10.070 ("Action for torts, for injury to personal property, for 
certain statutory liabilities, and against peace officers and coroners to be brought in two 
years");   AS   09.15.020   ("Parents   or   guardian   may   sue   for   seduction   of   child");   AS 
09.17.010      ("Noneconomic        damages");     AS     09.17.020     ("Punitive    damages");     AS 
47.05.065 ("Legislative findings related to children"); AS 47.10.020 ("Investigation and 
petition");   47.10.082   ("Health     and   safety   of   child   and   other   considerations");   AS 
47.10.092 ("Disclosure to certain public officials and employees"); and AS 47.10.093 
("Disclosure of agency records"). 

                                                   -4-                                            6522

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superior court's decision; Mark did not. 

                We   review   de   novo   both   a   grant   of   summary   judgment3  and   the   legal 

question of whether immunity exists as a defense to a claim.4 


        A.      Overview 

                This case requires us to determine whether the superior court correctly 

granted summary judgment to the State on the basis of either (1) absolute quasi-judicial 

immunity or (2) lack of an actionable tort duty.  "We usually consider whether there is 

a tort duty before deciding sovereign immunity questions, [though] this is not always our 
practice."5   We have analyzed immunity first when "doing so clarifies the public policy 

considerations that also bear on our duty analysis,"6 and we do so here for that reason. 

We conclude that (1) a court-appointed custody investigator is entitled to absolute quasi- 

judicial immunity from civil suits arising from the performance of an investigation, and 

(2) when a custody investigator is an employee or contractor of the State, that immunity 

extends to the State.   We therefore do not need to address the superior court's ruling on 


        3        Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska 

2005) (citing Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)). 

        4       Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) (citingState, Dep't 

of Transp. & Pub. Facilities v. Sanders, 994 P.2d 453, 456 (Alaska 1997)). 

        5       Kinegak v. State, Dep't of Corr., 129 P.3d 887, 888 (Alaska 2006) (citing 

Kiokun v. State, Dep't of Pub. Safety, 74 P.3d 209, 213 (Alaska 2003)). 

        6       State, Dep't of Corr. v. Cowles, 151 P.3d 353, 358 (Alaska 2006) (citing 

Kiokun, 74 P.3d at 213 (proceeding directly to immunity because that analysis "illustrates 
the public policy issues that would also bear on a duty analysis")). 

                                                 -5-                                            6522

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        B.	      Court-Appointed   Custody   Investigators   Are   Protected   Under   The 
                 Doctrine Of Absolute Quasi-Judicial Immunity. 

                 Judges are absolutely immune from liability for damages for acts performed 
in the exercise of their judicial functions.7        This absolute judicial immunity applies "no 

matter   how   erroneous   the   act   may   have   been,   how   injurious   its   consequences,   how 

informal the proceeding, or how malicious the motive. Only judicial actions taken in the 
clear absence of all jurisdiction will deprive a judge of absolute immunity."8 

                 The doctrine of absolute judicial immunity extends not only to judges but 
to   others   who   perform  duties   sufficiently   related   to   the   judicial   process.9  We   have 

previously   stated   that   the   "clearest   case  for   quasi-judicial   immunity   is   presented   in 

instances where some aspect of the court's adjudicative responsibility is delegated to 

another official such as a master or referee. And in Alaska, as well as in almost all other 

jurisdictions, neutral court-appointed experts are also shielded by absolute quasi-judicial 

                 InLythgoe v. Guinn11 we held that quasi-judicial immunity bars suit against 

a court-appointed custody investigator.12            Dr. Janet Guinn, a psychologist, had been 

appointed in that case "to act as an independent custody investigator" and to make a 

        7        Trapp v. State, 53 P.3d 1128, 1129 (Alaska 2002).

        8       Id. at 1130 (quoting Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989)).

        9       Id.

         10     Id. (internal footnotes and citations omitted). 

         11      884 P.2d 1085 (Alaska 1994). 

         12     Id. at 1093. 

                                                    -6-	                                            6522

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custody recommendation to the court.13  A party to the underlying child custody dispute 

subsequently sued Dr. Guinn, alleging that she committed negligent and intentional torts 
during her investigation and during the preparation of her report.14   We held that Dr. 

Guinn served as an "arm of the court" and performed a function "integral to the judicial 
process" in her capacity as a court-appointed custody investigator,15 qualifying her for 

immunity under relevant case law. We further held that policy considerations supported 
granting her absolute quasi-judicial immunity.16 

                We explained that "[e]xposure to liability could deter [court-appointed 
experts'] acceptance of court appointments"17 and "may affect the manner in which such 

court-appointed experts perform their jobs."18  We noted that individuals appointed by 

the court to conduct custody investigations exercise discretionary judgment in rendering 

their evaluations, and that "the sine qua non of the exercise of such discretion is the 
freedom to act in an objective and independent manner."19                 If faced with the threat of 

personal liability for exercising that discretion, court-appointed experts would be less 
likely to offer "the disinterested objective opinion the court seeks."20                 Therefore we 

concluded      that  extending     absolute    judicial   immunity     to  quasi-judicial    officers   is 

        13      Id. at 1086.

        14      Id.

        15      Id. at 1088 (quoting Seibel v. Kemble,   631 P.2d 173, 179 (Haw. 1981)).

        16      Id. at 1093.

        17      Id. at 1089 (quoting Lavit v. Superior Court, 839 P.2d 1141, 1144 (Ariz.

App. 1992)). 

        18      Id. 

        19      Id. 

        20      Id. at 1090 (citingLaLonde v. Eissner, 539 N.E.2d 538, 541 (Mass. 1989)). 

                                                   -7-                                               6522 

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appropriate to prevent a professional who is delegated judicial duties to aid the court 
from becoming a "lightning rod for harassing litigation."21 

                Nothing   distinguishes  Lythgoe   from   this   case.       Custody   investigators 

performing duties pursuant to their employment by or contract with the Alaska Court 
System's Custody Investigator's Office are quasi-judicial officers.22   As such they are 

entitled to absolute quasi-judicial immunity from suits arising out of the performance of 
those duties.23    Dusty nonetheless appears to contend that the custody investigator here 

is not immune from suit because she is not entitled to the immunity described in AS 

47.17.050, which protects persons who make good-faith reports of suspected child abuse 

from civil or criminal liability.      Although Dusty may be correct in contending that AS 

47.17.050   would   not   immunize   the   custody   investigator   from   suit   in   this   case,   the 
investigator is nevertheless protected by common-law quasi-judicial immunity.24  Dusty's 

contention is therefore without merit. 

        C.	     The   State   May   Not   Be   Held   Liable   For   The   Conduct   Of   Custody 
                Investigators Who Are Acting Through The Custody Investigator's 
                Office And Are Shielded By Absolute Quasi-Judicial Immunity. 

                The Christoffersens named the State as the defendant in their suit, not the 

        21	     Id. (quoting Lavit, 839 P.2d at 1144). 

        22      See    Ogden     v.  Ogden,    39  P.3d   513,   516   (Alaska    2001)    (noting   that 

"court-appointed        custody     investigators    are  officers    of   the   court   and    perform 
quasi-judicial functions"). 

        23	     Lythgoe, 884 P.2d at 1093. 

        24      See B.K. v. Cox, 116 S.W.3d 351, 360-61 (Tex. App. 2003) (holding that 

statutorily created immunity for failure to report abuse of a minor does not override 
common-law derived judicial immunity in the absence of statutory language explicitly 
doing so).   AS 47.17.050 contains no statement of intent to override common-law quasi- 
judicial immunity. 

                                                   -8-	                                           6522

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custody    investigator   herself.  The    Christoffersens    have  not  alleged   any  separate 

negligence by the State.      Instead they imply that the State is vicariously liable for the 

court-appointed custody investigator's actions. 

               We have not previously addressed vicarious liability within the context of 

absolute quasi-judicial immunity.       But we have held that a government employee's 

official immunity from suit bars vicarious liability claims against government entities for 
the same conduct.25   Other courts addressing this issue have consistently held that an 

employee's quasi-judicial immunity bars any vicarious liability claims brought against 
the employer.26  We support this view. The policy considerations that support extending 

absolute quasi-judicial immunity to court-appointed investigators acting within the scope 

and capacity of their appointment also support extending that same immunity to their 

principal, here, the State. To conclude otherwise would merely shift the threat of liability 

from the agent to the principal and would stifle the "disinterested objective opinion that 

        25     See Lougusak v. Togiak, 185 P.3d 103, 108-10 (Alaska 2008); Pauley v. 

Anchorage Sch. Dist., 31 P.3d 1284, 1285-86 (Alaska 2001). 

        26     See, e.g., Ward v. San Diego Cnty. Dep't of Soc. Servs., 691 F.Supp. 238, 

241 (S.D. Cal. 1988) ("Because plaintiff's only theory of liability against defendant . . . 
is respondeat superior, this court also finds that [defendant] is entitled to absolute quasi- 
judicial immunity."); Hulsman v. Hemmeter Dev. Corp., 647 P.2d 713, 717 (Haw. 1982) 
(holding that under respondeat superior "if the employee has immunity from suit, it 
follows that the employer would also be immune" and noting "[t]he reasoning which 
justifies this rule is based primarily on public policy") (internal citations omitted); S.J.S. 
v. Faribault Cnty., 556 N.W.2d 563, 566 (Minn. App. 1996) ("The policy considerations 
that support extending absolute immunity to prosecutors also support extending absolute 
immunity vicariously to the county . . . . [T]he threat of litigation against the county . . . 
could    deter  prosecutors   from   vigorously   and   fearlessly   performing   their   duties.") 
(internal citation omitted); Reddy v. Karr, 9 P.3d 927, 932 (Wash. App. 2000) (holding 
that custody investigator's quasi-judicial immunity extended to her employer). 

                                               -9-                                         6522

----------------------- Page 10-----------------------

the court seeks."27 

              We therefore hold that because the court-appointed custody investigator is 

absolutely immune from suits for actions performed within that capacity, the State cannot 

be held liable for her conduct. 


              We AFFIRM the superior court's grant of summary judgment in favor of 

the State on the ground that it is shielded by the custody investigator's absolute quasi- 

judicial immunity. 

       27     Lythgoe, 884 P.2d at 1090 (citing LaLonde, 539 N.E.2d at 541). 

                                           -10-                                        6522 
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