Dahl v. Dahl et al

Filing 69

ORDER AND MEMORANDUM DECISION granting Kelly Peterson's 45 Motion for Summary Judgment; finding as moot 64 Motion to Strike. Signed by Judge Tena Campbell on 8/3/12 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

KIM DAHL,
Plaintiff,

ORDER AND
MEMORANDUM DECISION

vs.

CHARLES F. DAHL, M.D., P.C. DEFINED
BENEFIT PENSION TRUST, CHARLES F.
DAHL individually, ROSEMOND V.
BLAKELOCK, KELLY PETERSON, and
DOES 1-5,

Case No. 2:11-cv-949-TC

Defendants.

Plaintiff Kim Dahl’s claims against Defendant Kelly Peterson arise out of his conduct as
guardian ad litem during the divorce proceedings between Ms. Dahl and her former husband,
Defendant Charles F. Dahl, M.D. Specifically, Ms. Dahl alleges that Mr. Peterson violated 18
U.S.C. § 2511(c) (the Wiretap Act) when he disclosed in open court the contents of a phone
conversation between Ms. Dahl and one of her minor children that Dr. Dahl had recorded in
violation of a judge’s orders. She also claims that Mr. Peterson discussed the contents of that
phone conversation with one of her minor children. At a hearing on February 16, 2012, the court
allowed Ms. Dahl to conduct limited discovery about the context in which Mr. Peterson made the
disclosures. The purpose of this discovery was to determine whether Mr. Peterson was acting
within the scope of his employment as guardian ad litem. Mr. Peterson has now filed a Motion
for Summary Judgment on Ms. Dahl’s claims (Dkt. No. 45), arguing that his actions did not

exceed the bounds of his authority as guardian ad litem and that he is therefore protected by the
doctrines of quasi-judicial immunity and qualified immunity. Because the court agrees with Mr.
Peterson, his motion is GRANTED.
BACKGROUND1
In 2006, Mr. Peterson was appointed by Judge James Taylor of the Fourth Judicial
District Court of Utah to represent the best interests of the Dahl children in their parent’s divorce
proceedings. On July 18, 2007, Judge Taylor ordered that any visitation between Ms. Dahl and
her children be supervised. Ms. Dahl was also “restrained from unmonitored telephone
communications with the minor children.” (Order 5-6, July 18, 2007, Ex. B to Def.’s Mem., Dkt.
No. 46.) Then, on October 7, 2009, Judge Taylor revised these restrictions. He found that the
arrangement as it then stood was harmful to the best interests of the children. He stated that
“supervised visitation would be immediately terminated.” (Tr. of Hearing 1764-67, Oct. 7, 2009,
Ex. 22 to Pl.’s Mem., Dkt. No. 57.) He also made the following statements about telephone
restrictions: “[T]he children should be able to call either parent, except that whichever parent
they’re physically with at the time may impose reasonable time limit restraints.” (Id.)
On October 12, 2009, Dr. Dahl recorded a telephone call between Ms. Dahl and her
daughter, C.D. Dr. Dahl provided a copy of the recording and a transcript that he had made to
Mr. Peterson. Sometime before November 3, 2009, Mr. Peterson had an interview with C.D.
during which he played her part of this recording. He claims that he wanted to authenticate that
it was C.D.’s voice and her mother’s voice on the recording. (Peterson Dep. 99, 102.) Mr.

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Unless otherwise noted, the facts are taken from the memoranda submitted by both

parties.
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Peterson also contends that his actions were taken in response to Judge Taylor’s request that Mr.
Peterson provide a report to the court on how the Dahl children were responding to the lifting of
the supervised restrictions. (Id. at 102-03.)
On November 3, 2009, Mr. Peterson referred to the recording in a court hearing at which
he presented his report. Judge Taylor then reminded the parties that it was unlawful for a third
party to record a telephone conversation without the consent of the two people involved. (Tr. of
Hearing 2552-53, Nov. 3, 2009, Ex. 23 to Pl.’s Mem., Dkt. No. 57.) A few months later, on
February 10, 2010, Judge Taylor removed Mr. Peterson as guardian ad litem. Judge Taylor’s
ruling was prompted by Mr. Peterson’s disclosure that his brother, Andrew Peterson, had formed
a law firm with Rosemond Blakelock, who was counsel for Dr. Dahl during the divorce
proceedings. (Tr. of Hearing 8, Feb. 10, 2010, Ex. 28 to Pl.’s Mem., Dkt. No. 57.) Judge Taylor
found that a sufficient conflict of interest existed to prevent Mr. Peterson from continuing to
serve as guardian ad litem. (Id. at 4-8.)
ANALYSIS
Mr. Peterson argues that the claims against him should be dismissed because he is
entitled to both quasi-judicial immunity and qualified immunity.
Quasi-Judicial Immunity
Quasi-judicial immunity is a form of “absolute” immunity that attaches “when a public
official’s role is ‘functionally comparable’ to that of a judge.” Hamilton v. Leavy, 322 F.3d 776,
785 (3d Cir. 2003). Although quasi-judicial absolute immunity is not listed as a specific
statutory exception in the Wiretap Act, the court concludes that quasi-judicial immunity is
nevertheless a defense to Wiretap Act liability given how well-rooted this doctrine is in federal
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jurisprudence. See Forrester v. White, 484 U.S. 219, 225-26 (1988) (setting forth history of
judicial immunity and stating that “judges have long enjoyed a comparatively sweeping form of
immunity” and that the Supreme Court has “not been quick to find that federal legislation was
meant to diminish the traditional common-law protections extended to the judicial process”); see
also Babb v. Eagleton, 614 F. Supp. 2d 1232, 1237-38 (N.D. Ok. 2008) (discussing other cases
addressing this issue).
An official is entitled to quasi-judicial immunity if (1) her role is functionally comparable
to that of a judge, or (2) her acts are integrally related to an ongoing judicial proceeding. See
Mitchell v. Fishbein, 377 F.3d 157, 172 (2d Cir. 2004) (citing Butz v. Economou, 438 U.S. 478,
513 (1978)); see also Babb, 614 F. Supp. 2d at 1240 (granting immunity to a Parenting
Coordinator because Oklahoma statute demonstrated that Parenting Coordinators served in a role
that was functionally comparable to that of a judge and because Parenting Coordinator’s actions
were integrally related to a judicial proceeding). Both parties concede that Utah courts have
extended quasi-judicial immunity to guardians ad litem. See, e.g., Gallacher v. Kisner, 2009 WL
2058432, at * 7 (D. Utah July 15, 2009) (“A guardian ad litem is entitled to absolute quasijudicial immunity from suit for conduct within the scope of his or her duties as guardian ad
litem.”). But absolute immunity cannot attach to a guardian ad litem if his actions are “clearly
and completely outside the scope of [his] jurisdiction.” Demoran v. Witt, 781 F.2d 155, 158 (9th
Cir. 1986); see also Turney v. O’Toole, 898 F.2d 1470, 1474 (10th Cir. 1990) (stating that
“absolute immunity extend[s] only to acts prescribed by [the court’s] order” in case addressing
the immunity afforded to an official charged with executing a facially valid court order). In
addition, the Supreme Court has stated that “immunity is justified and defined by the functions it
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protects and serves, not by the person to whom it attaches.” Forrester, 484 U.S. at 227.
Mr. Peterson argues that the acts of which Ms. Dahl complains arose out of the
performance of Mr. Peterson’s statutory duties to represent the interests of the children. In his
deposition, he maintains that the references he made to the allegedly illegal recording were
disclosed in the course of preparing and delivering a report for Judge Taylor. (Peterson Dep.
102-03.) Having carefully read the transcript of the November 3, 2009 hearing at which Mr.
Peterson referred to the recording, the court is satisfied that Mr. Peterson’s actions were
integrally related to a judicial proceeding. Judge Taylor had asked Mr. Peterson to deliver a
report to the court of how the minor children were responding to unsupervised visitation with
their mother. (Id. at 107.) Mr. Peterson’s references to the recording occurred first while he was
interviewing Ms. Dahl’s daughter in order to prepare that evaluation, and second in open court
when he was delivering that evaluation to the judge as requested. Both references were made in
the course of Mr. Peterson’s duties as guardian ad litem.
Ms. Dahl argues that, even if Mr. Peterson’s use of the recording took place during a
judicial proceeding, he relinquished any claim to absolute immunity by abandoning his role as
guardian ad litem and acting as an advocate for Dr. Dahl. Ms. Dahl cites numerous instances
where she believes that Mr. Peterson was not acting in the best interests of the children and she
emphasizes that Mr. Peterson was ultimately removed from his position as guardian ad litem due
to a conflict of interest when his brother began working with Dr. Dahl’s counsel, Ms. Blakelock.
The court has carefully reviewed each of Ms. Dahl’s allegations and finds that they do not suffice
to strip Mr. Peterson of his immunity. The majority of Ms. Dahl’s allegations amount to
disagreements with Mr. Peterson about which actions he should have taken and which
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recommendations he should have made during the divorce proceedings. But these decisions
concerning the best interests of the children are the province of the state trial court. If this court
were to review those decisions, no guardian ad litem would be safe from lawsuit. And while the
court recognizes the possible conflict of interest between Mr. Peterson and Ms. Blakelock, there
is no evidence that there was an undue delay before Mr. Peterson disclosed this issue and was
removed from the case. This allegation is insufficient to raise a genuine issue about whether Mr.
Peterson’s conduct was within the scope of his employment.
Mr. Peterson was acting at the direct request of Judge Taylor to report on the status of the
children when he referenced the telephone call at issue. He was clearly within the scope of his
employment and is therefore entitled to absolute quasi-judicial immunity. As a result, the court
need not determine whether Mr. Peterson’s references to the recorded call violated the Wiretap
Act.
Qualified Immunity
Because the court finds that Mr. Peterson is entitled to absolute immunity, it need not
decide whether he is also entitled to qualified immunity.

ORDER
For the foregoing reasons, Mr. Peterson’s Motion for Summary Judgment (Dkt. No. 45) is
GRANTED. His motion to strike certain statements of fact and exhibits in Ms. Dahl’s
opposition memorandum (Dkt. No. 64) is DENIED AS MOOT.

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SO ORDERED this 3rd day of August, 2012.
BY THE COURT:

______________________________
TENA CAMPBELL
United States District Judge

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