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Torts: Judicial Immunity for Therapeutic Interventionist Appointed By Court

Posted by Ted A. Schmidt | Mar 22, 2019 | 0 Comments

Brittner v Lanzilotta, __Ariz. Adv. Rep. __ No. 1 CA-CV 18-0088 (App. Div. I, March 12, 2019) (J. Campbell)


The defendant was a court appointed therapeutic interventionist who was directed by the court to “rehabilitate relationships between [plaintiff] and the minor children, establish ‘rules for [the] exchange of [the] children in order to enhance safety and health in the family, make referrals for therapy as necessary, and facilitate conflict resolution.” Eventually the defendant resigned as the therapeutic interventionist and plaintiff sued her for intentional

infliction of emotional distress, abuse of power, breach of fiduciary duty, and breach of contract. The trial court dismissed the lawsuit pursuant to rule 12(b)(6) of the Arizona Rules of Civil Procedure and the Arizona Court of Appeals affirmed.

Judicial immunity protects nonjudicial officers “performing a function pursuant to a court directive related to the judicial process. . . Whether absolute immunity protects a nonjudicial officer hinges on the ‘nature of the function performed, not on the identity of the actor.'”

Here the defendant was appointed to provide therapeutic services and to give recommendations to the family court regarding rules for exchanging the children between parents “to enhance safety and the health in the family” and to make referrals for therapy, all of which the court relied upon in issuing its final order. The court of appeals found that here the therapeutic services were “incidental to the court's purpose”—to provide the court with recommendations and information. Therapeutic sessions were necessary for the defendant to formulate the recommendations for the court. It is neither “practical nor possible” to separate out the services related to the judicial process from those therapeutic. “The therapist cannot serve two masters—her obligation is ultimately to the court.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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