Hulstedt v. City of Scottsdale

• Decision Date: 18 July 2011
• Docket Number: No. CV-09-1258-PHX-GMS,CV-09-1258-PHX-GMS
• Parties: W. Eric Hulstedt, permanent guardian and permanent conservator of David Hulstedt, an adult; Richard M. Gerry, as guardian ad litem for D.H., a minor; Walter Hulstedt and Janice Hulstedt, Plaintiffs, v. City of Scottsdale, Arizona; et al. Defendants.
• Court: U.S. District Court — District of Arizona

W. Eric Hulstedt, permanent guardianand permanent conservator of David Hulstedt, an adult; Richard M. Gerry, as guardian ad litem for D.H., a minor; Walter Hulstedt and Janice Hulstedt, Plaintiffs,

v.City of Scottsdale, Arizona; et al. Defendants.

No. CV-09-1258-PHX-GMS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: July 18, 2011

ORDER

This case arises on Defendants' Motion to Clarify the Courts' Previous Orders Regarding Richard Gerry's Role as Guardian Ad Litem for D.H.¹ (Doc. 236) Defendants request that this Court "clarify Mr. Gerry's role as guardian ad litem[,]" that he "is neither a party in this action nor the 'client' of D.H.'s purported counsel," and "he [should] be free to communicate with the City outside the presence of Plaintiffs' counsel." (Id. at 2) Plaintiffs responded, doc. 247, and Defendants replied, doc. 253. While an interesting issueof first impression in the Ninth Circuit, the Court concludes that Defendants request a prohibited advisory opinion which a district court lacks jurisdiction to render under Article III of the Constitution. The Court will deny Defendants' Motion. How the minor's guardian ad litem chooses to communicate with Plaintiffs, Defendants, their counsel and representatives in representing the minor's best interests lies within the guardian ad litem's wide discretion.

I. Background

This § 1983 and related-tort action arises from a November 7, 2008 police shooting in Scottsdale, Arizona of Plaintiff David Hulstedt ("Hulstedt"), a paranoid schizophrenic, shortly after he exited his residence, carrying his 23-month old daughter, Plaintiff D.H. (Docs. 37 at 2-5; 247 at 4) Most of the facts surrounding the shooting are hotly contested, from Hulstedt's initial 911 call and abrupt hang up, the dispatcher's request that Scottsdale police conduct a welfare check at the residence, the escalation of the circumstances to a barricade situation with the presence of dozens of Scottsdale officers, including police negotiators with the establishment of a command post, the reason Hulstedt was holding his daughter, to the shooting itself.

Briefly stated, Defendants contend that sometime before the shooting, Hulstedt threatened to "pile drive" his minor daughter, D.H., unless certain conditions were met by the police. (Id. at 4) After a brief standoff, Hulstedt, who was unarmed, was convinced by a police negotiator to exit the residence. A short distance outside the residence, while carrying D.H., either raised over his head due to police commands to "Put up your hands!" or laying over his shoulder, Hulstedt decided to turn around, intending to return and re-enter the residence, when Scottsdale Officers James Dorer and Richard Slavin, purportedly fearing for D.H.'s life, fired four shots, almost simultaneously, striking Hulstedt with three of them. (Id. at 3-5) Shot by an AR-15 rifle, Hulstedt and D.H. fell to the ground. (Id. at 3-5, doc. 247 at 5) Plaintiffs contend Hulstedt was immediately rendered a T-10 paraplegic and D.H. suffered a fractured skull when her head hit river rock adjacent to the concrete front walkway. (Id. at 3)

On March 1, 2011, the formerly assigned District Judge, ordered that "an independent person" be appointed as guardian ad litem for D.H. in this case. (Doc. 178 at 6-7) The selection and appointment of a guardian ad litem was referred to the undersigned Magistrate Judge pursuant to Fed.R.Civ.P. 72, LRCiv 72.1, and 28 U.S.C.§ 636(b). (Id. at 7)

On March 28, 2011, Richard Gerry, Esq. was appointed as D.H.'s guardian ad litem. (Doc. 183) The Court's order spelled out that

[a]lthough he is not D.H.'s attorney of record in this lawsuit, absent further court order, Mr. Gerry, as an officer of the District Court, shall enjoy all powers, privileges and immunities to determine, direct, and act upon D.H.'s bests interests as they may relate, directly or indirectly, to this litigation except as expressly stated herein.

(Id. at 3) (citations omitted). The only express limitation imposed on the guardian ad litem's authority is that D.H.'s claim in this lawsuit may not be settled, compromised, or voluntarily dismissed, absent an order of the district court upon a finding that such request is in D.H.'s best interests. (Id.) D.H.'s immediate family members and all counsel were directed to "cooperate with Mr. Gerry in his capacity as D.H.'s guardian ad litem if ethical and appropriate to do so." (Id. at 4-5) The March 28, 2011 appointment order specified Mr. Gerry's powers and authority as D.H.'s guardian ad litem to include, but are not limited to,

whether to discharge or retain D.H.'s current counsel of record; to employ different, conflict free counsel to represent D.H. on a contingency fee and advancement-of-costs basis only; to determine whether claims or causes of action, which have not been alleged, should be alleged on D.H.'s behalf against any current party or non-party; and to decide if it is in D.H.'s best interests to remain a party in this lawsuit or move for her voluntary dismissal from this action.

(Id. at 3)

Defendants' multi-part Motion alleges a wild claim, denied by adverse counsel, that "Plaintiffs' counsel have taken the extraordinary position that Mr. Gerry, the court-appointed guardian ad litem, is not an independent officer of the Court, but, rather, a party to the action." (Doc. 236 at 1) Defendants' Reply, however, exposes the crux of their complaints. First, Defendants desire "the ability to engage in candid and unhindereddiscussions with Mr. Gerry about the continued course of this litigation, including how Mr. Gerry intends to use his broad authority to resolve or change this litigation, and without being required to have those discussions filtered Plaintiffs' counsel first." (Doc. 253 at 5) They claim to be "completely in the dark as to how Mr. Gerry plans to proceed with [his] authority." (Id. at 3) Defendants make clear that "[t]he City may, at some point in this litigation, determine that it wants to settle solely with D.H. Should the City make such a determination, it should be free to provide such an offer directly to Mr. Gerry without being hindered by Plaintiffs' counsel, who, for obvious reasons, would reject such a settlement out of hand." (Id.) Secondly, Defendants repeat their long-held view of the ethical "impropriety of D.H.'s representation in this matter [which] should be of grave concern to this court, to Mr. Gerry and to counsel for Plaintiffs." (Id.) Candidly, defense counsel is so passionate about this issue they are seemingly baiting the Court to take sua sponte action to remove D.H.'s counsel and are overlooking the possibility that retention of her current counsel may be in D.H.'s bests interests yet they themselves have taken no action on this ethical claim in the two years this lawsuit has been pending.

Conversely, Plaintiffs' counsel indicate that the March 28, 2011 appointment order is "already clear" that "the GAL is required to maintain objectivity and independence." (Doc. 247 at 2) Plaintiffs' counsel acknowledge "that Plaintiffs' attorneys do not control the GAL. Plaintiffs have not sequestered the GAL as argued by defendants. If the GAL desires to have direct communication with any of defendants' attorneys[,] he is free to do so." (Id. at 2, 8) Nevertheless, Plaintiffs' counsel have adopted the legal view that "plaintiffs' counsel must be permitted to have privileged communications with the GAL[]" and frame the issue as "whether defendants' attorneys may ethically communicate directly with the GAL [outside the presence of Plaintiffs' counsel]." (Id. at 2, 9) Responding to Defendants repeated claim in this lawsuit that Plaintiffs' counsel have an impermissible, unethical conflict in jointly representing D.H.'s and Hulstedt's interests in this action, and "[a]ssuming that these comments are offered in good faith," Plaintiffs' counsel point out the obligation of "all members of the bar . . . to report perceived violations of the Rules of Professional Conduct.See also, Robert J. Corcoran, In re Himmel: Am I My Brother's Keeper?, Ariz. Att'y. Oct 1989." (Id. at 8) To date, Plaintiffs' counsel are "unaware of any ethical complaints filed against any of plaintiffs' attorneys by any person, attorney or judicial officer." (Id.) Of course, "[d]isqualification is an extreme sanction and should only be ordered 'after careful consideration of the client's rights to be represented by the counsel of her choice, and the nature and extent of the ethics violation.'" Richards v. Holsum Bakery, Inc., 2009 WL 3740725, * 6 (D.Ariz., Nov. 5, 2009) (quoting Palmer v. Pioneer Hotel & Casino, 19 F.Supp.2d 1157, 1162 (D.Nev. 1998), reversed on other grounds, Palmer v. Pioneer Inn Associates, Ltd., 338 F.3d 981 (9th Cir. 2003); Kaiser v. AT&T, 2002 WL 1362054, * 5 (D.Ariz., April 5, 2002).

Plaintiffs' counsel concede they were unable to find any Arizona or Ninth Circuit case law specifically stating that a GAL's communications with his ward's attorneys enjoy the protection of the attorney-client privilege and, in some jurisdictions, such communications are not protected by the privilege, citing Ross v. Gadwah, 554 A.2d 1284, 1286 (N.H. 1988) (following state law in a child custody dispute, "none of the information the guardian gathers can be shielded from discovery by the attorney-client privilege."). (Id. at 12-13) Plaintiffs' counsel, however, advance several arguments why a ward's attorneys' communications with the ward's GAL should enjoy the protection of the privilege and "oppose any request by defendants that seeks an order grant them leave to have unsolicited, ex parte, contact with the GAL." (Id. at 13-15)

II. The Attorney-Client Privilege

The public has a right to every person's testimony, except where precluded by a constitutional, common-law, or statutory privilege. Trammel v. United States, 445 U.S. 40, 50 (1980); United States v. Bryan, 339 U.S. 323, 331 (1950). If a district court maintains federal question...