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Constitutional Considerations When Restricting Access to the Proposed Ward in a Contested Guardianship Proceedings


Hon. Brenda Hull ThompsonThe Probate Court of Dallas County, Texas

1201 Elm Street, Suite 2400-ADallas, Texas 752710

Telephone: (214) 653-72536Facsimile: (214) 653-6002

Email: [email protected]

Mark R. CaldwellBurdette & Rice, PLLC

4851 LBJ Freeway, Suite 601Dallas, Texas 75244



Sarah V. TorrasonBurdette & Rice, PLLC

4851 LBJ Freeway, Suite 601Dallas, Texas 75244





Brenda Hull Thompson

Judge, Probate Court of Dallas County, Texas

Brenda Hull Thompson

Judge, Probate Court of Dallas County, Texas

Brenda Hull Thompson is the judge of The Probate Court of Dallas County, Texas. She was elected in 2010 after more than twenty years of service in Texas to the community in civil practice and mediation. Her civil practice focused on estate administration, guardianship

administration, and family law. In addition, she has been an adjunct professor at Texas Wesleyan School of Law. Before moving to Texas, she was a senior staff attorney at the office of the General Counsel for the Federal Trade Commission in Washington, D.C. She has made numerous presentations to local bar association sections and community groups and she has received numerous awards for her pro bono and public service activities pertaining to elderly and disabled persons, low-income persons, and children.

Judge Thompson received her J.D. degree from Georgetown University Law School, Washington, D.C., her M.A. degree from Boston University, and her B.S. degree from the University of Maryland. She is a member of the Dallas Bar Association and the Texas Bar Foundation, and she is licensed to practice law in Texas state courts, the U.S. District Court for the Northern District of Texas, the Supreme Court of Pennsylvania (inactive) and the District of Columbia Court of Appeals (inactive). Judge Thompson is serving on the Executive Committee of the National College of Probate Judges. She is the Presiding Judge of the Dallas County Probate Courts and has been a co-author on the O'Connor 2012-2013 Probate Code Plus, the 2013-14 Estates Code Plus, and the 2014-2015 Estates Code Plus and the 2015-2016 Estates Code Plus.

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Mark R. Caldwell

Shareholder, Burdette & Rice, PLLC, Dallas, Texas

Mark R. Caldwell was born on June 29, 1979 at Beaufort Naval Hospital in Beaufort, South Carolina where his father flew F-4 Phantoms at the nearby Marine Corps air station (although his mother had the more difficult job of raising three children). After

having lived on the East Coast, West Coast and in Hawaii, he attended Eastfield Community College in Mesquite, Texas before transferring to Southern Methodist University, where he earned a full academic scholarship. One year later, he attended the London School of Economics as a General Course Student. Mark earned his law degree from New England School of Law in Boston, Massachusetts in 2005. He entered private practice as a litigator in a boutique probate and trust firm, representing executors, guardians, and beneficiaries in complex estate and trust litigation. He has also represented fiduciaries in all phases of estate, trust, and guardianship administration. Mark enjoys the investigatory aspects of estate and trust litigation, including reviewing and analyzing medical, financial, and suspicious property records and transactions. Mark is committed to developing and maintaining strong, personal relationships with his clients. He endeavors to offer smart, pragmatic and cost-effective legal advice. Mark believes that the strongest winning position is one that is simple, direct, and understandable and he realizes that estate and guardianship litigation often involves substantial damage to family relationships. While he strives to advocate strong, aggressive positions for clients, Mark also strives to resolve disputes in an ethical and reasonable manner that, if desired, does not preclude the opportunity for reconciliation.

Mark is married and has three children. He enjoys living an active life-style, traveling and spending time with his family.

Representative Experience

▪ Recovered significant settlement in case involving fraud on the community and breach of fiduciary duty through the use of a power of attorney.

▪ Obtained favorable jury verdict in a guardianship case involving an elderly ward.

▪ Successfully defeated claim that will was executed without testamentary capacity on summary judgment.

▪ Obtained temporary injunctions and temporary guardianships in cases involving the abuse of a power of attorney.

▪ Obtained partial summary judgment against Trustee for breach of fiduciary duty.

▪ Represents guardians, executors, and administrators in all phases of guardianship and estate administration.

▪ Routinely serves as attorney ad-litem and guardian ad-litem in guardianship cases.

▪ Routinely serves as temporary guardian and guardian in guardianship cases and as temporary administrator and administrator in decedents’ estates.

Public Speaking & Publications


▪ Co-authored, Properly Performing Annual Accounts in Guardianships and Management Trusts Where One or Both Spouses are Incompetent, Real Estate, Probate, & Trust Law Reporter, Volume 52, No. 4 (2014).

▪ Served as Moderator for the Guardianship and Ad Litem Attorney Certification Course, sponsored by the Dallas Bar Association Probate, Trusts & Estate Section, Dallas County Probate Courts and the Dallas Volunteer Attorney Program to train lawyers in the representation of guardians of indigent wards, and the role and responsibilities of the Attorney Ad Litem (2014).

▪ Winning the Battle and the War; A Remedies—Centered Approach to Litigation Involving Durable Powers of Attorney; 64 Bay. L. Rev. 435 (Spring 2012).

▪ Author/Speaker: “An Introduction to Guardianships” – Texas Department of Assistive & Rehabilitative Services (DARS), Dallas, Texas (Fall 2010; Spring 2011).

▪ Co-authored and presented article, “Proof of Facts and Common Evidentiary Problems Encountered in Contested Probate Proceedings,” at the Seventh Probate Litigation Seminar, sponsored by the Tarrant County Probate Bar Association (September 2010).

▪ Author, A Good Deed Repaid: Awarding Attorney’s Fees in Contested Guardianship Proceedings; 51 S. Tex. L. Rev. 439 (Winter 2009).

Community and Bar Association Involvement

▪ Board of Directors and Vice President, City of Sachse Economic Development Corporation (2010-2014)

▪ Member, Charter Review Commission, City of Sachse (2012-2013)

▪ Dallas Bar Association; Probate and Trust Section Member; Trial Skills Section Member

▪ Dallas Association of Young Lawyers; Elder Law Section Member

▪ Board of Directors, St. Thomas More Society

▪ Dallas Bar Mentor Program; Participated as Mentee; Mentor, Edward V. Smith III

▪ Organized and leads an ongoing monthly probate study group featuring prominent guest speakers and court staff

Awards and Recognition

▪ Named Rising Star by the Texas Super Lawyers (2013)▪

Education

▪ General Course, The London School of Economics, London, England (2001-2002)

▪ B.A., magna cum laude, Southern Methodist University, Dallas, Texas (2002)

▪ J.D., New England Law | Boston, Boston, Massachusetts (2005)i


Sarah V. Toraason

Attorney, Burdette & Rice, PLLC, Dallas, Texas

An experienced litigation attorney, Sarah Toraason has ten years’ experience representing clients in complex commercial disputes involving securities, contract, business tort, insurance coverage, ERISA, and

intellectual property claims in state and federal courts as well as arbitration. Sarah now applies her extensive business litigation background to representing clients in estate, trust, and guardianship disputes. She strives to be a strong advocate for her clients and approaches every matter with the goal of producing a successful and efficient resolution of their case.

Sarah graduated from the University of Richmond with a B.A. in Music and Leadership Studies and received her M.B.A. and M.A. from the University of Cincinnati. She earned her J.D. from William & Mary School of Law. After graduating from law school, Sarah served as a law clerk to the Honorable Henry Coke Morgan, Jr., of the United States District Court for the Eastern District of Virginia. She then clerked for the Honorable Fortunato P. Benavides of the United States Court of Appeals for the Fifth Circuit in Austin, Texas.

Prior to entering the legal profession, Sarah studied music and worked in arts administration for the Honolulu Symphony in Honolulu, Hawaii. Sarah was born and raised in Cincinnati, Ohio. She is married to an attorney and has two children.

Sarah is admitted to practice in California (2003) and Texas (2004).

Representative Experience

Successfully defended former CFO of a national homebuilding company in a securities fraud class action in the Southern District of Florida and on appeal to the Eleventh Circuit.

Obtained denial of class certification on behalf of Fortune 500 media company and certain officers and directors in a securities class action in the Northern District of Texas and on appeal to the Fifth Circuit.

Represented for-profit educational institution in the Southern District of Texas and on appeal to the Fifth Circuit in a suit seeking to enforce a confidentiality provision in an arbitration agreement. The Fifth Circuit upheld award of preliminary and permanent injunction based on the confidentiality clause.

Won dismissal of claims challenging design and administration of ERISA-governed severance plan and secured award of costs in favor of defendants. Defended judgment on appeal to the Fifth Circuit.

Defended CEO of oil and natural gas company in a series of ten shareholder and derivative suits filed in state and federal court seeking to challenge potential acquisition of the company.

Defended oil and gas company in a hydraulic fracking case.

Represented Fortune 500 company in a significant trademark suit.

Represented large pharmaceutical manufacturer in putative nationwide antitrust class

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actions brought by direct and indirect purchaser plaintiffs in the Eastern District of Pennsylvania.

Obtained dismissal of claims brought against insurance company and former claims adjuster in Texas state court.

Community and Bar Association Involvement

Dallas Bar Association; Probate, Trust & Estates Section Member

State Bar of Texas

The William ‘Mac’ Taylor Inn of Court, Barrister

Attorneys Serving the Community

Education

B.A., magna cum laude, University of Richmond, Richmond, Virginia (1996)

M.B.A./ M.A. (Arts Administration), University of Cincinnati, Cincinnati, Ohio (1998)

J.D., magna cum laude, William & Mary School of Law, Williamsburg, Virginia (2002)

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TABLE OF CONTENTS

I. INTRODUCTION ....................................................................................................................................................1II. COMMON VISITATION PROBLEMS FREQUENTLY ENCOUNTERED IN CONTESTED GUARDIANSHIP PROCEEEDINGS .............................................................................................................................1III. RELEVANT LEGAL PRINCIPLES AND SPECIAL CONSIDERATIONS IN LIMITING ACCESS TO THE PROPOSED WARD PRE-GUARDIANSHIP .................................................................................................................2

A. The Doctrine of Parens Patriae and Best Interest ............................................................................................2B. Basic Jurisdictional Concepts ...........................................................................................................................3

1. General Due Process Principles Applicable to Guardianships .....................................................................42. Substantive Due Process ...............................................................................................................................53. Procedural Due Process ................................................................................................................................7

C. Specific Procedural Due Process Concerns Regarding Guardianship Jurisdiction ..........................................91. A Brief Historical Overview of Key Jurisdiction Principles ......................................................................102. The Importance of Notice ...........................................................................................................................103. In Personam and In Rem Notice Compared ...............................................................................................114. Notice in Status Jurisdiction .......................................................................................................................14

IV. SECTION 1983 CLAIM ........................................................................................................................................17A. General Concepts ............................................................................................................................................17B. Judicial Immunity ...........................................................................................................................................18

V. CONCLUSION ......................................................................................................................................................21I. INTRODUCTION ....................................................................................................................................................2II. COMMON VISITATION PROBLEMS FREQUENTLY ENCOUNTERED IN CONTESTED GUARDIANSHIP PROCEEEDINGS .............................................................................................................................2III. RELEVANT LEGAL PRINCIPLES AND SPECIAL CONSIDERATIONS IN LIMITING ACCESS TO THE PROPOSED WARD PRE-GUARDIANSHIP .................................................................................................................3

A. The Doctrine of Parens Patriae and Best Interest ............................................................................................3B. Basic Jurisdictional Concepts ...........................................................................................................................4

1. General Due Process Principles Applicable to Guardianships .....................................................................52. Substantive Due Process ...............................................................................................................................63. Procedural Due Process ................................................................................................................................8

C. Specific Procedural Due Process Concerns Regarding Guardianship Jurisdiction ........................................101. A Brief Historical Overview of Key Jurisdiction Principles ......................................................................102. The Importance of Notice ...........................................................................................................................113. In Personam and In Rem Notice Compared ...............................................................................................114. Notice in Status Jurisdiction .......................................................................................................................15

D. Legal Challenges in Attempting to Restrict or Deny Access to the Ward Pre-Guardianship ........................171. Pre Guardianship Analysis Differs from Post-Guardianship Analysis .......................................................17

E. Section 1983 Claim .........................................................................................................................................17

IV. CONCLUSION ......................................................................................................................................................20


[I.]

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[II.] INTRODUCTION

While the collection of guardianship data from a national perspective remains imperfect, the number of guardianship proceedings appear to be on the rise in the United States.1 This trend will likely increase. According to the U.S. Census, in 2050, the population aged 65 and over is projected to be 83.7 million, almost double its estimated population of 43.1 million in 2012.2 In addition to the elderly population growing, this population is living longer while diseases and dementias are increasing – conditions that will only potentially breed bread more guardianship proceedings:

By 2050, the number of people age 65 and older with Alzheimer's disease may nearly triple, from 5 million to as many as 16 million, barring the development of medical breakthroughs to prevent, slow or stop the disease.3

To reduce expensive, contested battles where parties frequently attempt to use the proposed ward as a pawn, probate judges are often forced to supervise civil visitation, much like family court judges in child custody and visitation disputes. While many probate courts routinely instructrestrict parties not to’ communicatetions about the proceedings with the proposed ward, these restrictive instructions alone are not always sufficient.

Unfortunately, many guardianships end up in lengthy contested battles with the proposed ward being used a pawn for one of the competing applicants’ own purposes throughout the proceeding. To stop this, and eliminate the severe stress (including negative physical and emotional impacts) on the proposed ward, probate judges are increasingly finding themselves trying to supervise and policy civil visitation, almost as though they are family law judges presiding over child custody disputes. While many probate courts routinely order the parties (except for the attorney ad litem) not to speak about the case with the proposed ward, this instruction alone is not always sufficient.

While the powers of a probate court exercising guardianship jurisdiction are broad, they are not limitless. This paper highlights the probable legal constraints on, and practical issues facing, a probate court in considering whether to restrict or deny a third party’s access to the proposed ward during the pendency of a contested guardianship proceeding. There appear to beS serious constitutional issues arise , particularly substantive and procedural due process concerns, in issuing such orders before a guardianship is established, particularly substantive and procedural due process concerns. It seems clear that theThe constitutional right to intimate association is implicated whenever such orders are issued, and practical considerations, such as monitoring and enforcement must be considered. Regardless of how a probate court seeks to address visitation or access issues, practical issues involving the effective monitoring and enforcing such restrictions remain.

TheWhile this area of law is far from settle ldimited, but evolving, case law in this area

1 Brenda K. Uekert & Richard Van Duizend, Adult Guardianships: A “Best Guess” National Estimate and the Momentum for Reform, (2011), released by the National Center for State Courts available online at: http://www.eldersandcourts.org/~/media/Microsites/Files/cec/AdultGuardianships.ashx

2 Id.

3 See http://www.alz.org/alzheimers_disease_facts_ and_figures.asp#quickFacts.1

http://www.eldersandcourts.org/~/media/Microsites/Files/cec/AdultGuardianships.ashx


provides the probate courts some caveats, and we and the existing case is limited, a probate court considering restricting or denying access should be careful to ensure, at a minimum, that (1) adequate procedures are in place to afford both the third party and the proposed ward reasonable notice and the opportunity to be heard, and (2) that any restrictions placed by the probate court on restrictions on visitation or access are proportional to the probable harm such contact may cause the proposed ward. The most conservative approach would be to require personal service on any non-party whose access is sought to be restricted.

I.[III.] COMMON VISITATION PROBLEMS FREQUENTLY ENCOUNTERED IN CONTESTED GUARDIANSHIP PROCEEEDINGS

Even though competent conventional estate planning tools, such as trusts and powers of attorney, can prevent or limit the need for a guardianship, it seems these tools are ever increasingly serve as the becoming the actual root cause of a contested guardianship proceeding, usually because of the choice of fiduciary, or because the fiduciary did not have robust legal representation after appointment. These contestedSuch proceedings often involve disputes between siblings over who should serve as guardian for an ailing parent, and the – primarily because either the settlor or principal chose the wrong person to serve as his or her fiduciary or because the person they chose lacked competent legal counsel upon assuming their fiduciary role. Usually these proceedings take the form of adult siblings vying for who will be appointed as the guardian for their mother or father. In fact, the main issue is who will serve as guardian. The proposed ward’s incompetency is often not truly in dispute. Thus, in that caseIn these instances, the probate court is tasked withmust determine ing (1) if any applicantanyone is disqualified, and (2) if notneither is disqualified, which of the competing applicants is more suitable.

The competing applicants will often identify each other’s perceived deficiencies, including arguing that: the opponentother applicant is indebted to the proposed ward by reason of improperly receiving her property; the opponent wants to put the proposed ward in a nursing home; the opponent is using the guardianship process to simply take control over the proposed ward’s estate and use it how they see fit; and the applicant is truly the person the proposed ward “really wants” as his or her guardian. One of the goals of these arguments is, of course, to curry the proposed ward’s favor during the pendency of the proceeding, in hopes of convincing the court that sheshe has the proposed ward’s “blessing.” Some parties are so determined to maintain their perceived “favored” position that almost every interaction with the proposed ward invariably reverts to advancing their own agenda, instead of behaving in a manner consistent with the proposed ward’s best interest. In these cases, the Court must sometimes restrict, and in rare cases deny, such a party access to the proposed ward during the pendency of the case.

To help the court in its analysis, the competing applicants will often bring each other’s perceived ineligibility to light. These arguments can take many forms, with some of the most common being: claiming the other applicant is indebted to the proposed ward by reason of improperly receiving the proposed ward’s property; arguing the other applicant wants to put the proposed ward in a nursing home; arguing the other applicant is using the guardianship process to simply take control over all of the proposed ward’s money and use it how they see fit; and claiming the other applicant is truly the person the proposed “really wants” as his or her guardian. One of the goals of these arguments is, of course, for one of the competing applicants to curry the proposed ward’s favor or blessing during the pendency of the contested guardianship proceeding in hopes of convincing the probate court that he or she has the proposed ward’s blessing. Certain parties are so determined to maintain their perceived favored position, that almost every interaction with the proposed ward invariably reverts to advancing their own

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agenda, instead of behaving in a manner consistent with the proposed ward’s best interest. In these cases, the Court must sometime restrict, and in rare cases, deny such a party access to the proposed ward during the pendency of the case.

II.[IV.] RELEVANT LEGAL PRINCIPLES AND SPECIAL CONSIDERATIONS IN LIMITING ACCESS TO THE PROPOSED WARD PRE-GUARDIANSHIP

A. The Doctrine of Parens Patriae and Best Interest

In considering visitation or access issues, it is fundamental to recognize that theThe purpose of a guardianship proceeding is to promote and protect the well-being of an incapacitated person.4 The state’s role is that of a protector who acts in parens patriae towards the incompetent.5 Modern courts have defined the term parens patriae:

Parens patriae literally means “parent of the country,” and refers to the role of the state as guardian of persons under legal disabilities, such as juveniles or incompetent persons. Under the theory of parens patriaethis doctrine, it is “the right and duty of the state to step in and act in what appears to be the best interests of the ward.”6

A probate court generally has “broad power in all matters touching guardianship.”7 These “broad and flexible inherent powers [are] essential to the court's duty to act in the best interests of persons under its jurisdiction.”8 In making this determination of who shall serve asselecting a guardian, a probate court must exercise its powers in the best interests of the ward.9 Some courts have noted that noNo person has an absolute legal right to serve as a guardian because to be a guardian is a privilege, with a concomitant duty, conferred by the trial court in its discretion.10 The Uniform Law Commission has promulgated threeThe ree Uniform

4 In Guardianship of Wooley, 02-14-00315-CV, 2016 WL 3179643, at *5 (Tex. App.–Fort Worth June 2, 2016, pet. filed); Tex. Estates Code § 1001.001.

5 James Christopher Redding, Constitutional Deficiencies in Oklahoma Guardianship Law, 13 Tulsa L.J. 579, 590 n. 79 (1977)(explaining the historical development of guardianship law from the time of Cicero through Medieval England); See also State ex rel. Hawks v. Lazaro, 202 S.E.2d 109, 117 (1974), holding modified by State ex rel. White v. Todt, 475 S.E.2d 426 (1996)(containing excellent discussion of the historical development of the doctrine of parens patriae in England); See also Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 1809 (1979)(“The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.”)

6 Matter of Guardianship of L.W., 167 Wis. 2d 53, 76, 482 N.W.2d 60, 68 (1992)(involving the authority of guardian to consent to the withdrawal of all life-sustaining medical treatment, including artificial nutrition and hydration), citing Black's Law Dictionary 1114 (6th ed. 1990), see In re Guardianship of Eberhardy, 97 Wis. 2d 654, 659 n. 6, 294 N.W.2d 540 (Ct.App.1980).

7 In re Hoke, 2003-Ohio-4704, 2003 WL 22064121, ¶ 10.

8 Bower v. Bournay-Bower, 469 Mass. 690, 698, 15 N.E.3d 745, 752 (2014).

9 See e.g. In re Guardianship of Friend, 64018, 1993 WL 526643, at *5 (Ohio Ct. App. Dec. 16, 1993); See also In re Guardianship of Guaman, 879 N.W.2d 668, 672 (Minn. Ct. App. 2016)(“the ward's best interest is the [probate] court's paramount concern”).

10 Guardianship of Tina Marie W., 215 Wis. 2d 523, 528–29, 573 N.W.2d 207, 209 (Ct. App. 1997).3

Murray Camp, 02/23/17,


Guardianship and Protective Proceedings Act (UGPPA) has pieces of model statuteslegislation which have significantly influenced the development of state guardianship law from a policy perspective, one of which is the Uniform Guardianship and Protective Proceedings Act (UGPPA).11 The 1997 UGPPA included a mandate to take consider the ward’s expressed desires and personal preferences12 but alsoin addition to the traditional best interest doctrine, as it requires that a “guardian at all times shall act in the ward’s best interest.”13

Presumably, Tthese parens patriae and best interest concepts naturally apply to visitation andor access issues.14 After all, a probate court has the inherent power to resolve visitation and access issues after the establishment of a guardianship.15 Once If a probate court properly obtains valid jurisdiction over the parties and proposed ward, it seems self-evident thatit follows that a probate courtit would have the power to resolve access and visitation issues that arise during the pendency of a contested guardianship.

B. Basic Jurisdictional Concepts

To analyze the potential power a probate court may have to restrict or deny someone’s access to the proposed ward during the pendency of a contested guardianship, it is helpful to first review a few basic jurisdiction principles. The process of attaching the court’s jurisdiction of perfecting the court’s power in this regard over third parties (who may be “inactive litigants” entitled to some form of statutory notice of the guardianship proceeding) is nuanced, especially where they are “inactive litigants” entitled to some form of statutory notice. A probate court’s power to restrict someone’s or deny access before a guardianship is even established is significantly limited by such person’s’ substantive and procedural due process rights, and his/hertheir First Amendment right of association. From a procedural due process standpoint, it seems is doubtful that a probate court could simply issue an order restricting or denying someone’s access to the proposed ward without actual notice to such person (even if the guardianship proceeding is determined to be a proceeding is in rem).16 It is also unclear as to how far a probate court could go in issuing such an order with respect to a non-resident person–

11 See Center for Elders and the Courts, available at http://www.eldersandcourts.org/Guardianship/Guardianship-Basics/State-Laws.aspx (“noting that the UGPPA was revised significantly in 1997 to update procedures for appointing guardians and conservators and strengthen due process protections for persons who are the subject of guardianship proceedings).

12 Lawrence A. Forlik & Linda S. Whitton, UPC Substituted Judgment/Best Interest Standard for Guardian Decisions: A Proposal for Reform, 45 U. Mich. J. L. Reform 739, 739-740 (2012), citing UNIF. GUARDIANSHIP & PROTECTIVE PROCEEDINGS ACT § 314(a)(1997).

13 UNIF. GUARDIANSHIP & PROTECTIVE PROCEEDINGS ACT § 314(a)(1997).

14 In re Hoke, 2003-Ohio-4704, 2003 WL 22064121, ¶ 9 (“It has been repeatedly held that the adjudication of visitation rights falls within the range of matters ‘touching the guardianship.’”)(internal citations omitted).

15 K.A.S. v. R.E.T., 914 So. 2d 1056, 1058 (Fla. Dist. Ct. App. 2005)(holding probate court has the inherent power to order the guardians to permit visitation between minor ward and one of his grandparents).

16 But see In re R.W., 2011 VT 124, ¶ 47, 191 Vt. 108, 131, 39 A.3d 682, 698 (2011)(concluding that status jurisdiction applies to cases involving termination of parental rights even though non-resident

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especially if the court determines the guardianship proceeding falls under the “status” jurisdiction exception first mentioned in Pennoyer v. Neff.17

To render a binding judgment, a court must have both subject-matter jurisdiction over the controversy and personal jurisdiction over the parties.18 Accordingly, to issue an order restricting or denying someone’s access to the proposed ward during the pendency of a contested guardianship proceeding, the probate court must have: (1) the subject matter jurisdiction to issue such an order; and (2) personal jurisdiction over the person whose access is sought be restricted or denied.

Given a probate court’s broad parents patriae and “best interest” powers, restricting or denying someone’s visitation with, or access to, the proposed ward during the pendency of a contested guardianship proceeding likely falls within the probate court’s subject matter jurisdiction.19 Although subject matter jurisdiction is rarely an issue in a guardianship proceeding, personal jurisdiction – apart from the ward and the active litigants – can be a problematic relative when someone is trying to restrictingion or denial ofy a family member’s access to the proposed ward during the pendency of a contested guardianshipthe proceeding. For example, in our highly mobile society, proposed wards commonly have adult siblings and/or children who reside outside the forum state. . Because Tthe exercise of personal jurisdiction over a defendant must not violate due process.,20 it is helpful to briefly summarize a few basic due process principles.

1. General Due Process Principles Applicable to Guardianships

Guardianship proceedings are subject to the due process requirements of the Fourteenth Amendment of the U.S. Constitution. As outlined below, both substantive and procedural due process effectively limit a probate court’s power to restrict or deny someone from having access to the proposed ward during the pendency of a contested guardianship proceeding, . This is especially to the extent that such an orderif it impacts someone’s constitutionally protected intimate rights of association.

The 14th Amendment to the U.S. Constitution prohibits a state from depriving a person of liberty or property without due process of law.21 Due process under the Fourteenth Amendment encompasses both: (1) procedural due process; and (2) substantive due process.22 Consequently, to the extent a probate court issues an order in a guardianship proceeding that deprives a person

father’s lacked minimum contacts with forum state).

17 Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877).

18 Brownsville Indep. Sch. Dist. v. Alex, 408 S.W.3d 670, 673 (Tex. App.—Corpus Christi 2013, no pet.).

19 See e.g. Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 367 (Tex. 2012)(statingsubject matter jurisdiction limits speak to the power of courts to decide a particular type of controversycontroversy, not to the evidence that courts may consider or the scope of the remedy they can afford in a particular case.).

20 Digi-Tel Holdings, Inc. v. Proteq Telecommunications (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996).

21 U.S. Const. amend. XIV. (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”)

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of liberty or property, it must afford such person due process of law.23 Thus, a probate court’s order restricting denying or restricting someone and/or the proposed ward from seeing one another during the pendency of a contested a guardianship proceeding could violate:

(1) the person’s and/or the proposed ward’s substantive due process rights, to the extent it deprives them of his/hertheir rights to intimate association under the Due Process Clause of the Fourteenth Amendment24 (and possibly the person’s and/or the proposed ward’s First Amendment rights);25 and

(2) the person’s and/or the proposed ward’s procedural due process rights,26 to the extent such order is issued without notice (or without adequate notice) and without an opportunity to be heard.

2. Substantive Due Process

It is helpful to explore the potential Ssubstantive due procesprocess is almost always at the forefront of s rights at play when a probate is faced with a pre-guardianship visitation or access issues. Substantive due process “focuses on whether the government has an adequate reason for taking away a person’s life, liberty, or property.”27 “Substantive due process ... serves the goal of preventing governmental power from being used for purposes of oppression, regardless of the fairness of the procedures used.”28 Generally, “[s]ubstantive due process claims may be loosely divided into two categories: (1) deprivations of a particular constitutional guarantee; and (2) actions that ‘shock the conscience.’ ”29 The first type involves claims based on the deprivation of a fundamental liberty interest claim and in this sense, “substantive due

22 Albright v. Oliver, 510 U.S. 266, 272 (1994) (plurality opinion) (“[T]he Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights.”).

23 See e.g. Gauci v. Gauci, 471 S.W.3d 899, 902 (Tex. App.—Houston [1st Dist.] 2015, no pet.)(“Simply put, a guardianship statute cannot eliminate the need for a court to establish in personam jurisdiction over the ward before rendering judgment binding a party, nor can it dispose of an individual's right to have a meaningful opportunity to be heard when his liberty interests are at stake.”).

24 See Kolley v. Adult Protective Services, 725 F.3d 581, 587 (6th Cir. 2013)(noting that intimate association claims, such as the right to family association, are generally raised under the Due Process Clause of the Fourteenth Amendment, whereas freedom of expressive association claims—right to assembly, speech, petition for the redress of grievances, and the exercise of religion—are protected by the First Amendment); See also Anderson v. City of LaVergne, 371 F.3d 879, 881–82 (6th. Cir.2004) (noting that an intimate association claim is a privacy interest derived from the Fourteenth Amendment and related to the First Amendment) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18, (1984)).

25 See e.g. Anderson v. City of LaVergne, 371 F.3d 879, 881 (6th Cir. 2004)(stating freedom of intimate association is a privacy interest derived from the Due Process Clause of the Fourteenth Amendment but also related to the First Amendment.)

26 See Pittman v. Cuyahoga County Dept. of Children & Family Services, 640 F.3d 716, 729 (6th Cir. 2011)( “To establish a violation of procedural due process rights, [a party] must show ‘(1) that [he or she] was deprived of a protected liberty or property interest, and (2) that such deprivation occurred without the requisite due process of law.’”).

27 Id.

28 Pittman v. Cuyahoga County Dept. of Children & Family Services, 640 F.3d 716, 728 (6th Cir. 2011), citing Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir.1996).

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process provides that, irrespective of the constitutional sufficiency of the processes afforded, [the] government may not deprive individuals of fundamental rights unless the action is necessary and animated by a compelling purpose.”30

The First Amendment protects the right of “intimate association” that “involves an individual's right to enter into and maintain intimate or private relationships free of state intrusion.”31 A “protected” relationship is “distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.”32 In Roberts v. United States Jaycees, the Supreme Court generally recognized that there are generally two types of constitutionally protected freedom rights of association protected by the Constitutionassociation: “One type of freedom of association is related to privacy and is protected by the due process clause—for example the freedom of association on which we base family life and personal friendship—and the second type of freedom of association is a means to another more basic end such as free speech in the political marketplace, the right of voters to cast an informed vote or to form coalitions with other voters.”33 Roberts explained that generally only relationships with “these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.”34 While the U.S. Supreme Court has “recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights,” it has “not attempted to mark the precise boundaries of this type of constitutional protection.”35 Such relationships may take various forms, including:

Marriage;36

Cohabitation with relatives;37

Dating relationships;38

29 Pittman, 640 F.3d at 728 (internal citations omitted).

30 Id. (internal citations omitted).

31 Freebery v. Coons, 589 F. Supp. 2d 409, 421 (D. Del. 2008), aff'd, 355 Fed. Appx. 645 (3d Cir. 2009), quoting Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3d Cir.2000).

32 Id.; See also Roberts, 468 U.S. at 618–20.

33 Corrigan v. City of Newaygo, 55 F.3d 1211, 1214–15 (6th Cir. 1995)(citing Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)).

34 Id.

35 Bd. of Directors of Rotary Intern. v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987).

36 Zablocki v. Redhail, 434 U.S. 374, 383–386 (1978)(involving state statute that provided that any resident having minor issue not in his custody that he is under obligation to support by any court order or judgment may not marry without court approval); See also Loving v. Virginia, 388 U.S. 1, (1967)(interracial couple’s right to marry protected by the Due Process Clause).

37 See Moore v. East Cleveland, 431 U.S. 494, 503–504 (1977) (plurality opinion).

38 Anderson v. City of La Vergne, 371 F.3d 879, 881 (6th Cir.2004).7


Personal friendships;39

Child rearing and education;40 and

Sibling relationships.41

Laws or policies that restrain intimate associations are subject either to: (1) strict scrutiny, if they impose a “direct and substantial interference” with intimate association, or (2) rational basis review, if they constitute “lesser interferences.”42 “The Constitution protects ... [the] freedom of intimate association, a privacy interest derived from the Due Process Clause of the Fourteenth Amendment but also related to the First Amendment.”43 To survive strict scrutiny, the state must show that: (1) “the state action serves a compelling state interest which (2) cannot be achieved through “means significantly less restrictive of one's associational freedom.”44 Because probate courts routinely encounter family relationships in contested guardianships, Tthe “freedom of association” issues necessarily implicateded by access and visitation orders cannot be ignoredare critical. Additionally, and perhaps most importantlyMoreover, the heightened standard of review applicable to probate court orders that attempt to imposeing a “direct or substantial interference” with protected relationships through access restriction by overly restricting or denying access or visitation in a contested guardianship illustrate the significant risk that such orders willmay be constitutionally invalid if not the least restrictive alternative.

3. Procedural Due Process

Procedural due process “refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.”45 The procedural guarantees of the Fourteenth Amendment only apply whenever “the state seeks to remove or significantly alter” personal

39 Akers v. McGinnis, 352 F.3d 1030, 1040 (6th Cir. 2003)(“Personal friendship is protected as an intimate association.”).

40 Pierce v. Society of Sisters, 268 U.S. 510, 534–535 (1925).

41 See Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988) (plaintiff's relationship to brother-in-law did not warrant constitutional protection). But see Patel v. Searles, 305 F.3d 130, 136 (2d Cir.2002) (sibling relationship afforded protection).

42 DeSoto v. Bd. of Parks & Recreation, 64 F. Supp. 3d 1070, 1088–89 (M.D. Tenn. 2014)(quoting Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir.2004)); See also Akers v. McGinnis, 352 F.3d 1030, 1040 (6th Cir. 2003).

43 Pucci v. Michigan Supreme Court, 601 F. Supp. 2d 886, 903 (E.D. Mich. 2009)(quoting Anderson v. City of LaVergne, 371 F.3d 879, 881 (6th Cir.2004) (citing Roberts v. United States Jaycees, 468 U.S. 609, 617–18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)).

44 Behm v. Luzerne County Children & Youth Policy Makers, 172 F. Supp. 2d 575, 585 (M.D. Pa. 2001)(quoting Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1498 (5th Cir.1995) cert. denied 515 U.S. 1145, (1995)).

45 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW; PRINCIPLES AND POLICIES supra note, § 7.1, pg. 523(2nd ed. 2002).

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interests that fall within the meaning of either “liberty” or “property” as used in the due process clause.46 Because guardianship proceedings are authorized and conducted under state statutes promulgated under state legislatures, there is “state action” sufficient to trigger the due process clause.47

Guardianship proceedings, by their nature, involve constitutionally protected liberty interests.48 According to the West Virginia Supreme Court:

It is axiomatic that a declaration of incompetency and the resulting appointment of a committee, guardian, or conservator to oversee an individual's affairs may affect constitutionally-guaranteed liberty interests: One of the historic liberties which is protected by the due process clauses ... is the right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security. The aAppointment of a guardian results in a massive curtailment of liberty, and it may also engender adverse social consequences. The guardian becomes the custodian of the person, estate and business affairs of the ward; the guardian dictates the ward's residence; the ward's freedom to travel is curtailed; and the ward's legal relationship with other persons is limited.49

46 Paul v. Id. citing Davis, 424 U.S. 693, at 711 (1976).

47 Roger B. Sherman, Guardianship: Time for Reassessment, 49 Fordham L. Rev. 350, 357 (1980).

48 In re Guardianship of Hahn, 276 S.W.3d 515, 517 (Tex. App.—San Antonio 2008, no pet.)(stating “For this reason, ‘the probate code contains uniform, strict procedural safeguards to protect a person's liberty and property interests before a court may take the drastic action of removing’ a person's ability to make his or her own legal decisions.”)(internal citations omitted).

49 The West Virginia Supreme Court has explained why guardianship proceedings involve constitutionally protected liberty interests: “It is axiomatic that a declaration of incompetency and the resulting appointment of a committee, guardian, or conservator to oversee an individual's affairs may affect constitutionally-guaranteed liberty interests: One of the historic liberties which is protected by the due process clauses ... is the right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security. Appointment of a guardian results in a massive curtailment of liberty, and it may also engender adverse social consequences. The guardian becomes the custodian of the person, estate and business affairs of the ward; the guardian dictates the ward's residence; the ward's freedom to travel is curtailed; and the ward's legal relationship with other persons is limited.” State ex rel. Shamblin v. Collier, 191 W. Va. 349, 352, 445 S.E.2d 736, 739 (1994), quoting In re Guardianship of Deere, 708 P.2d 1123, 1125-26 (Okla.1985) (footnotes omitted); see also O'Connor v. Donaldson, 422 U.S. 563 (1975) (recognizing substantial restraint on incompetent's personal freedom); see also Susan G. Haines and John J. Campbell, Defects, Due Process, and Protective Proceedings, Marquette’s Elder’s Advisor: Vol. 2, Iss. 1, Article 4, at 13 (2000).

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When a state action, such as a guardianship,50 infringes on a constitutional protected liberty or property interest, the state must institute procedures to protect that interest.51 In Mathews v. Eldridge, the United States Supreme Court implemented a three part test to determine whether a particular procedure provides constitutionally adequate due process: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the gGovernment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.52 “(D)ue process is flexible and calls for such procedural protections as the particular situation demands.”53 Essentially, the fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner” before being deprived of a liberty or property interest.54 At the very least, Mathews seems to requires that there be due process protections in every guardianship55 – including at any stage in such a proceeding whichany court action that potentially infringes on someone’s constitutionally protected liberty interests.

C. Specific Procedural Due Process Concerns Regarding Guardianship Jurisdiction

In our highly mobile society, it is not uncommon for all family members of a proposed ward not to reside in one state. Moreover, restricting access to a proposed ward isn not limited to physical access, as destructive conduct, like manipulation, can take many different forms, especially as more and more proposed wards are rely on their cellular phones. Thus, a court must know how to obtain jurisdiction over non-residents. Understanding the constitutional limits on the judicial restriction of a non-resident’s access to a proposed ward requires an understanding of the type of jurisdiction imposed.It is difficult to determine the constitutional adequacy of a particular procedure – for example, here, restricting or denying access to a proposed ward – without first understanding the particular type of jurisdiction being asserted over the affected person, especially if that person is a non-resident of the forum state. Generally,

50 State ex rel. Shamblin v. Collier, 191 W. Va. 349, 352, 445 S.E.2d 736, 739 (1994), quoting In re Guardianship of Deere, 708 P.2d 1123, 1125-26 (Okla.1985) (footnotes omitted); see also O'Connor v. Donaldson, 422 U.S. 563 (1975) (recognizing substantial restraint on incompetent's personal freedom); see also Susan G. Haines and John J. Campbell, Defects, Due Process, and Protective Proceedings, Marquette’s Elder’s Advisor: Vol. 2, Iss. 1, Article 4, at 13 (2000).

51 Susan G. Haines and John J. Campbell, Defects, Due Process, and Protective Proceedings, Marquette’s Elder’s Advisor: Vol. 2, Iss. 1, Article 4, at 13 (2000), see Morrisey v. Brewer, 408 U.S. 471, 481 (1972); Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968)(“Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process. . .”); Seattle Fishing Services LLC v. Bergen Indus. & Fishing Co., 242 Fed. Appx. 436, 439 (9th Cir. 2007)(“state action is required for the Due Process Clause to be violated.”); See also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972)(“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.”)

52 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

53 Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

54 Id. at 333 (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

55 HGaines and Campbell, surpra n.ote 51___ at 18.

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there are four different types of jurisdiction: (1) personal jurisdiction (the power of a court to render a binding judgment against a defendant); (2) in rem jurisdiction (the power of a court to act with regard to property within its borders); (3) quasi in rem jurisdiction (the power of the court to a judgment for an amount of money up to the value of the property); and (4) status jurisdiction (the power of the court to decide the status of the litigants).56 This paper primarily focuses on Iin personam, in rem, and status jurisdiction are the most frequently encountered, . These three jurisdictional schemes are discussed to highlight the relativeand reflect significant differences in their approach to notice, both historical and contemporary., which at least existed historically, and to some extent still exists today.

1. A Brief Historical Overview of Key Jurisdiction Principles

The evolution of modern theories on state court jurisdiction can be traced back to the 1877 landmark U.S. Supreme Court case of Pennoyer v. Neff. 57 Eventually, courts and legislatures gradually loosened the rule requiring a defendant to be served with process within the state’s boundaries before a court could render a binding in personam judgment.58 When seeking to restrict or deny a non-resident’s access to a probate ward during a contested guardianship, the validity of a probate court’s jurisdiction over such non-resident will be analyzed under International Shoe’s minimum contacts test – regardless of whether the guardianship proceeding is characterized as in rem or in personam. In International Shoe Co. v. Washington,59 the Court announced a new standard for determining personal jurisdiction over non-residents:

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”60

The legal fictions created by Pennoyer continued to apply to in rem cases until 1977, when the U.S. Supreme Court decided the landmark in rem case of Shaffer v. Heitner. Prior to Shaffer, the rules relating to in personam and in rem jurisdiction had developed separately.61 As

56 STEPHEN N. SUBRIN, ET. AL., CIVIL PROCEDURE: DOCTRINE, PRACTICE AND CONTEXT 646 (Aspen Law & Business 2000).

57 Rita Miller, Shaffer v. Heitner: Reshaping the Contours of State Court Jurisdiction, 11 Loy. L.A. L. Rev. 87, 91 (1977)(citing Pennoyer v. Neff, 95 U.S. 714, 732-33 (1877))(noting that judgments which presume to determine the personal rights of defendants over whom personal jurisdiction has not been obtained violate due process of law).

58 Kenneth M. Murchinson, Jurisdiction Over Persons, Things, and Status,Id. 41 La. L. Rev. 1053, 1054 (1981).at 1054;

59 326 U.S. 310 (1945).

60 Id. at 316.

61 Miller, supra, n. 57__ at 93.11


one scholar notes, Shaffer consolidated the illogically bifurcated system of in rem and in personam jurisdiction, which emphasized due process for some but ignored due process for others, into a single theory designed to provide due process for all.62 Many scholars have noted that while in rem proceedings may have been a useful jurisdictional device to obtain jurisdiction over a nonresident defendant during the days of Pennoyer, state long arm statutes have essentially eliminated the need to resort to such in rem arguments.63

2. The Importance of Notice

Due process of law, as applied to the states through the Fourteenth Amendment,64 requires that a judgment to be binding, a court must first obtain jurisdiction over the parties to a suit.65 Service perfects the court's personal jurisdiction over the party.66 “[A] judgment entered without notice or service is constitutionally infirm.”67 In other words, without valid service of process, a trial court does not obtain personal jurisdiction over the defendant.68 A judgment entered by a trial court before it acquires jurisdiction of the parties, is void.69

Consequently, proper service on the party whose access is sought to be restricted or denied during the pendency of a contested guardianship becomes crucial. Historically, the classification of an action as in rem or in personam was considered important with regard to the citation required to establish jurisdiction.70 But as outlined belowToday, however, the historical differences for the types of notice required in in personam and in rem proceedings are slowly being whittled down by modern technology and corresponding fundamental notions of fairness.

3. In Personam and In Rem Notice Compared

62 Id. at 91.

63 Id. at 98.

64 U.S. Const. amend. XIV.

65 Rita Miller, supra, n. 57 at 93; Shaffer v. Heitner: Reshaping the Contours of State Court Jurisdiction, 11 Loy. L.A. L. Rev. 87 (1977)(citing Pennoyer v. Neff, 95 U.S. 714, 732-33 (1877)).

66 In re Guardianship of Jordan, 348 S.W.3d 401, 406 (Tex. App.–Beaumont 2011, no pet.)67

68 Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)(“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Swaim v. Moltan Co., 73 F.3d 711, 719 (7th Cir. 1996)(“Valid service of process is a prerequisite to a district court's assertion of personal jurisdiction.”).

69 In re Guardianship of B.A.G., 794 S.W.2d 510, 511–12 (Tex. App.–Corpus Christi 1990, no writ) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985)).

70 Note, Jurisdiction–Status, 10 Tex. L. Rev. 513 (1932).

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Many states refer to guardianship proceedings as in rem proceedings.71 Other states seem to take a more nuanced view72 and note that jurisdiction over persons under guardianship involves both rights in rem and rights in personam and, at least, with respect to original proceedings for the appointment of a guardian are primarily in personam.73 While it may appear that these classifications may govern what type of notice is constitutionally sufficient when seeking to restrict or deny a person’s access to the proposed ward, the issue of “adequate notice is more likely to depend on the reasonableness of the notice and the availability of a fair opportunity to be heard [rather] than on the rigid formulas relied on the past.”74

In personam jurisdiction refers to a court's power over a particular defendant’s person.75 When a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated “in personam” and can impose a personal obligation on the defendant in favor of the plaintiff.76 Perfecting personal jurisdiction over the proposed ward is fairly straightforward. Many states require personal service on the proposed ward before a guardianship may be established.77 The personal jurisdiction analysis, however, may become extremely nuanced, as it relates to a third parties, especially non-residents of the forum state.78

71 Tex. Est. Code § 1022.002(d)(“From the filing of the application for the appointment of a guardian of the estate or person, or both, until the guardianship is settled and closed under this chapter, the administration of the estate of a[n] ... incapacitated person is one proceeding for purposes of jurisdiction.”); But see Gauci v. Gauci, 471 S.W.3d 899, 902 (Tex. App.—Houston [1st Dist.] 2015, no pet.)(“Simply put, a guardianship statute cannot eliminate the need for a court to establish in personam jurisdiction over the ward before rendering judgment binding a party, nor can it dispose of an individual's right to have a meaningful opportunity to be heard when his liberty interests are at stake”); See also Henderson v. Shell Oil Co., 202 S.W.2d 492, 497 (Tex. Civ. App.—Fort Worth 1947), aff'd, 146 Tex. 467, 208 S.W.2d 863 (1948)(“The primary purpose of the guardianship proceeding was not to have the County Court of Clay County adjudge the status of the nonresident Hugh Henderson, but to have that court exercise control of property lying within its jurisdiction.”); See In re Guardianship of Santrucek, 896 N.E.2d 683, 685 (Ohio 2008)(noting “guardianship proceedings are not adversarial, but are in rem proceedings”); Nelson v. Cowling, 116 S.W. 890, 893 (1909)(referring to guardianship proceedings as in rem); Edwards v. Smith, 238 Iowa 1080, 1087, 29 N.W.2d 404, 407 (1947)(“We hold a judgment appointing guardian of a ward's property in Iowa is in rem”).

72 In re Leigh's Estate, 6 Utah 2d 299, 302, 313 P.2d 455, 457 (1957)(‘‘The guardianship of a person having no estate would partake largely of personal elements; but the appointment of a guardian solely for the determination of the nature and quantum of an estate, like an administration of an estate, is an action in rem.’)(internal citations omitted).

73 Jasperson v. Jacobson, 224 Minn. 76, 80, 27 N.W.2d 788, 792 (1947)(stating guardianship proceedings, which involve both rights in rem and rights in personam, are with respect to original proceedings for the appointment of a guardian, primarily exercised through proceedings in personam.); see also 39 C.J.S. Guardian & Ward § 33.

74 Note, Requirements of Notice in Rem Proceedings, 70 Harv. L. Rev. 1257, 1264 (1957).

75 See Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945).

76 HMS Aviation v. Layale Enterprises, S.A., 149 S.W.3d 182, 187, n.1 (Tex. App.–Fort Worth 2004, no pet.)(citing Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 2577, 53 L.Ed.2d 683 (1977)).

77 See e.g. Tex. Est.ates Code § 1051.103.; _____

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When jurisdiction is based on the court's power over property within its territory, the action is called “in rem” or “quasi in rem.”79 The effect of a judgment in an in rem or quasi in rem case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner.80 “An in rem action is a proceeding or action instituted directly against a thing, an action taken directly against property, or an action that is brought to enforce a right in the thing itself.”81 Indeed, “a proceeding in rem is essentially a proceeding to determine rights in a specific thing or in specific property.”82 A judgment in rem affects the interests of all persons in designated property.83 Judgments in rem are typically binding “on the whole world.”84 They bind persons to the extent of their interest in the property whether or not they were parties to the proceedings.85

Prior to the landmark 1950 U.S. Supreme Court case of Mullane v. Cent. Hanover Bank & Trust Co.,86 determining what type of notice would satisfy due process largely depended on

78 See International Shoe Co. v. Washington, 326 U.S. 310 (1945); See Murchinson, supra, n. 58ote ___, at 1054 (“a court can exercise in personam jurisdiction over a nonresident who was not served with process within the state whenever the defendant has sufficient minimum contacts with the forum state for that state to exercise jurisdiction consistent with traditional notions of fair play and substantial justice.”)

79 Id.

80 Id.

81 Bodine v. Webb, 992 S.W.2d 672, 676 (Tex. App.–Austin 1999, pet. denied); In Guardianship of Wooley, 02-14-00315-CV, 2016 WL 3179643, at *8 (Tex. App.—Fort Worth June 2, 2016, pet. filed); See 50 C.J.S., Judgments, sec. 1054 (2005)(It is characteristic of a judgment in rem that it operates on a thing or status rather than against the person, and binds all persons to the extent of their interest in the thing whether or not they were parties to the proceedings.).

82 In Guardianship of Wooley, 02-14-00315-CV, 2016 WL 3179643, at *8 (Tex. App.—Fort Worth June 2, 2016, pet. filed)(citing City of Blue Mound v. Sw. Water Co., 449 S.W.3d 678, 683 (Tex. App.—Fort Worth 2014, no pet.)).

83 HMS Aviation v. Layale Enterprises, S.A., 149 S.W.3d 182, 196 (Tex. App.–—Fort Worth 2004, no pet.)(citing Shaffer v. Heitner, 433 U.S. 186, 199 n. 17, 97 S.Ct. 2569, 2577 n. 17 (1977)).

84 Restatement, Judgments § 32, comment a (1942).

85 50 C.J.S., Judgments, sec. 1054 (2005).

86 In Mullane v. Central Hanover Bank & Trust Co. the United States Supreme Court addressed the constitutional sufficiency of whether citation by publication was sufficient notice the requirements of the Fourteenth Amendment. 339 U.S. 306, 320 (1950). Mullane involved the judicial settlement of a common trust fund account. Ultimately, the court held that published notice was insufficient as to the present known beneficiaries whose whereabouts were known. Id. at 320. The court examined the sufficiency of the notice without regard to whether the underlying proceeding was in personal or in rem. In examining the sufficiency of the notice, the Court seemed to suggest that the classification of a proceeding does not always prove dispositive of the type of notice required:

Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or more indefinitely quasi in rem, or more vaguely still, ‘in the nature of a proceeding in rem.’ . . . But in any event we think that the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to

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whether the proceeding in question could be classified as one in rem or in personam.87 Traditionally, the rulings issued in rem proceedings seemed to imply that notice by publication alone was sufficient “to all defendants, whether residents or non-residents, whose identities and addresses were unknown.”88 Even where the name and whereabouts of a non-resident defendant was known, notice by publication was sufficient.89 In fact, many of these concepts have significantly affected modern day probate jurisdiction over decedent’s estates.90

After Pennoyer, however, the U.S. Supreme Court became more concerned with achieving substantial justice:

[T]here occurred a gradual expansion and strengthening of notice requirements–a move toward notice reasonably calculated to give actual notice. The Court began to take an interest in the probability of a party actually receiving the notice it was provided.91

Thus in certain circumstances, published notice is insufficient since “process which is a mere gesture is not due process.”92 In fact, some scholars believe that the Mullane was emphasizing that merely labeling a proceeding as in personam or in rem does not fully answer

define, may and do vary from state to state. Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power of the State to resort to constructive service in this proceeding upon how its courts or this Court may regard this historic antithesis.

Id. at 312-13.

87 Note, Due Process of Law and Notice by Publication, 32 Ind. L.J. 469, 470 (1957); See also Jerry L. Malone, Property–Meeting the Due Process Requirements of Notice to Mortgagees in Tax Sales, 7 U. Ark. Little Rock L. Rev. 437, 438 (1984), citing Pennoyer v. Neff, 95 U.S.714 (1878).

88 Malone, supra n. 87ote 38 at 439 (citing Goodrich v. Ferris, 214 U.S. 71 (1909) for the proposition that notice by posting and publication held sufficient as to non-residents)).

89 Id. (citing Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889) for the proposition that state’s interest was too important to allow the absence of owner to keep it from adjudicating on property within its territorial limits).

90 See Estate of Whittenburg, 07-15-00443-CV, 2016 WL 4158032, at *1 (Tex. App.—Amarillo Aug. 4, 2016, pet. filed)(“It has long been the law in Texas that probate proceedings are in rem, and ‘rules applicable to cases in which jurisdiction over the person [i.e. in personam] must be acquired before a personal judgment can be rendered, have no application to such proceedings.’”)(quoting Thomas v. Bonnie, 66 Tex. 635, 2 S.W. 724, 726 (Tex. 1886)); Soto v. Ledezma, 529 S.W.2d 847, 850 (Tex. Civ. App.–Corpus Christi 1975, no writ). The Court in Estate of Whittenburg when on to add, “In other words, personal service normally is not required in in rem proceedings, unless, of course, statute or other law dictates otherwise.” Id., (citing Soto v. Ledezma, 529 S.W.2d at 850).

91 Malone, supra n. ote 8738 at 440.

92 Id. at 315.

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the question when a party can resort to constructive notice (e.g. published or posted notice). 93 “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections . . . the notice must be of such nature as reasonably to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance.”94

4. Notice in Status Jurisdiction

The United States Supreme Court has long recognized a status basis for exercising jurisdiction in satisfaction of due process requirements.95 The status exception to personal jurisdiction could significantly impact a probate court’s jurisdiction over non-residents in a guardianship proceeding. The seminal case of Pennoyer v. Neff required a defendant's actual presence or service in a state for jurisdiction to attach, but excepted from its strict rule “cases affecting the personal status of the plaintiff.”96

In cases decided after Pennoyer, the Supreme Court established the minimum contacts test as the basis for jurisdiction for both in personam, and eventually in rem cases, but continued to exempt “status cases,” recognizing Pennoyer’s extension of jurisdiction to “cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that State.”97 In Shaffer, the Court specifically noted: “We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness.”98

Traditionally, the most common adjudications of status occurred in divorce proceedings,99 where courts have exercised jurisdiction over non-residents without adhering to

93 Note, Due Process of Law and Notice by Publication, 32 Ind. L.J. 469, 472 (1957).

94 Id. at 314.

95 In re R.W., 39 A.3d 682, 691 (2011)(holding a court may exercise status-based jurisdiction over a termination-of-parental-rights proceeding, even if the parents lack minimum contacts with the forum.).

96 Pennoyer v. Neff, 95 U.S. 714, 733-34 (1877) (“To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. The jurisdiction which every State possesses to determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.”).97

In re R.W., 191 Vt. At 121–22 (quoting Shaffer v. Heitner, 433 U.S. 186, 201 , 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (citing Pennoyer, 95 U.S. at 733–35)).

98 Id. at 208 n. 30, 97 S.Ct. 2569.

99 See Williams v. State of N. Carolina, 317 U.S. 287, 298–99 (U.S. 1942)(“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests,

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the minimum contact requirement.100 Status jurisdiction is still routinely utilized in custody cases, but not support cases, where personal liability can be at issue.101 In one recent case, the Vermont Supreme Court utilized the status exception to terminate a non-resident’s parental rights of two minor children who resided within Vermont.102 The Vermont Supreme Court based its decision, in part, on the United States Supreme Court’s long recognition of a status basis for exercising jurisdiction in satisfaction of due process requirements and cited Pennoyer v. Neff, which generally required a defendant's actual presence or service in a state for jurisdiction to attach, but excepted from its strict rule “cases affecting the personal status of the plaintiff.”103 The Vermont Supreme Court cited it was joining other jurisdictions that have similarly held that asserting jurisdiction over termination proceedings based on status does not offend the Due Process Clause.104

and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institution of marriage can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.”)

100 See Dickerson v. Doyle, 170 S.W.3d 713, 717 (Tex. App.—El Paso 2005, no pet.)(court having jurisdiction to adjudicate parentage may exercise personal jurisdiction over a non-resident if the non-resident has resided with the child in Texas); Perry v. Ponder, 604 S.W.2d 306, 314 (Tex. Civ. App.—Dallas 1980, no writ)(discussing why status jurisdiction over non-residents can be used with respect to custody but not child support).

101 See In Interest of S.A.V., 837 S.W.2d 80, 84 (Tex. 1992)(“a valid judgment for child support or visitation expenses may be rendered only by a court having jurisdiction over the person of the defendant.”)(citing Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978); See also In re Powers, 974 S.W.2d 867, 869–70 (Tex. App.—Houston [14th Dist.] 1998, no pet.)(since a claim for child support is like a claim for debt in that it seeks a personal judgment establishing a direct obligation to pay money, a valid judgment or order for child support may be rendered by a court having only personal jurisdiction over the one to be obligated by the debt.”); See also Vanderbilt v. Vanderbilt, 354 U.S. 416, 418 (1957)(“[A] court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.”); See also Estin v. Estin, 334 U.S. 541 (1906); See also Fox v. Fox, 106 A.3d 919, 925 (2014)(“A court's authority in the absence of personal jurisdiction over the defendant would be limited to a declaration of status; it does not extend to affirmative relief)(citing Kulko v. Superior Court, 436 U.S. 84, 91 (1978) (“It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant.”; Restatement (Second) of Judgments § 7 cmt. a (1982) (“Jurisdiction to establish or terminate a status should be distinguished from ... jurisdiction to enforce liability arising from a status, for example, liability for child support.”)).

102 In re R.W., 39 A.3d 682, 690 (2011)(concluding that status jurisdiction applies to cases involving termination of parental rights).

103 Id. at 691 (citing Pennoyer v. Neff, 95 U.S. 714, 733 (1877)).

104 Id. at 693–94, (citing J.D. v. Tuscaloosa Cnty. Dep't of Human Res., 923 So.2d 303, 310 (Ala.Civ.App.2005) for the proposition that “status exception to the requirement that the defendant have minimum contacts with the forum state applies to termination-of-parental-rights proceedings”; S.B. v. State, 61 P.3d 6, 14–15 (Alaska 2002) for the proposition that parent's due process rights are not violated by exercise of status jurisdiction over termination proceeding; In re M.L.K., 13 Kan.App.2d 251, 768 P.2d 316, 319 (1989) for the proposition that status jurisdiction applies to termination proceeding; Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 823 A.2d 817, 836 (2003) for the proposition that New Jersey had jurisdiction to terminate parental rights of mother living in Haiti to child brought to state by father; In re Adoption of Copeland, 43 S.W.3d 483, 487 (Tenn.Ct.App.2000) for the proposition that a termination proceeding involves an adjudication of status and does not require minimum contacts over

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No reported case could be located invoking status jurisdiction to a guardianship proceeding – much less to a guardianship proceedings involving restricting a non-resident’s or denying access of non-residents to a proposed ward. However, some courts seem to question whether status jurisdiction really applies to guardianship proceedings involving adults in the first instance.105 A difference may exist in proceedings dealing with a status once established and proceedings to establish such status, but that difference has yet to be widely recognized.106

[V.] SECTION 1983 CLAIM

D. General Concepts

Anytime a state actor, including a judge, infringes on someone’s constitutionally protected rights, section 1983 concerns arise. The Civil Right Act, 42 U.S.C. § 1983, authorizes a private right of action against a person acting under color of state law for violation of a

parents; State ex rel. W.A., 2002 UT 127, ¶¶ 22–28, 63 P.3d 607 for the proposition that status jurisdiction applies to termination cases; In re Thomas J.R., 2003 WI 61, ¶¶ 37–38, 262 Wis.2d 217, 663 N.W.2d 734 for the proposition that status jurisdiction applies in all custody cases including termination; B. Atwood, Child Custody Jurisdiction and Territoriality, 52 Ohio St. L.J. 369, 372–73 (1991) for the proposition that “a court needs ‘territorial jurisdiction’ over the child custody dispute, rather than personal jurisdiction over the absent contestant” because “the needed judicial power arises from child-centered contacts with the forum state”).

105 See Eugene F. Scoles, et. al., ConflcitConflict of Laws, § 5.7 (4th ed. 2000)(“Status matters resemble in rem matters, although the ‘res’ is the relationship, which is generally given a fictional location in the domicile of any party to the relationship”); See e.g. McCormick v. Blaine, 345 Ill. 461, 471-472 (1931). In McCormick rudimentary “status” arguments appear to have been be made through the rubric of in rem jurisdiction. Arguments were made that a “proceeding for the appointment of a conservator of the person for an incompetent is a proceeding concerning the status of such person, that proceedings affecting status are proceedings in rem, and that, since in actions in rem personal service is not necessary upon a party domiciled in the state in which the proceeding is brought, but absent therefrom, it was not necessary in this case.” but Tthe Court, however, noted that “the status referred to in this class of proceedings as in rem is generally that which has to do with the relation of one person to another, as in divorce, probate of wills, adoption of minors, and the like. It must be borne in mind that, so far as questions of jurisdiction are concerned, a difference exists in proceedings dealing with a status once established and proceedings to establish such status.” Id.

106 McCormick, 345 Ill. Id. at 472-475(“An important distinction must be borne in mind between proceedings to adopt children and those to determine incompetency. In the former the minority of the child, and hence its incompetency, is conceded, and forms the basis of the jurisdiction of the court of its domicile, under the doctrine of parens patriae, to deal with such conceded status, while in a proceeding to have one declared incompetent the jurisdiction of the court arises on the petition seeking a determination of that matter. The condition or status of the alleged incompetent is not conceded, but is the main issue to be tried in the case. It is tried with presumption, obtaining universally, that the one proceeded against is sane. In this it is not unlike a criminal case . . . In other words, the petition which gives the court jurisdiction to hear the issue is one which brings before the court the personal rights of such individual to his liberty and the control of his property. His status of being an incompetent does not arise until that issue has been tried and a verdict of the jury entered finding him incompetent. It seems incongruous to say that courts may secure jurisdiction of a person, under a petition to determine whether he is incompetent, by assuming a status of incompetency, which can be determined only by hearing on the petition and overcoming the presumption, everywhere recognized, that such person is sane.”)

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constitutional right. The purpose of the statute is to protect people from unconstitutional actions performed by state actors under color of state law.107 The current version of the statute reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.108

Thus, uUnder 42 U.S.C. § 1983, a plaintiff must allege:

1) A person;2) Acting under color of state law;[3)] Deprived the plaintiff of a right secured by the Constitution or the laws of the

United Statesfederal law.

Although the a State and its agencies are not “persons” under § 1983, 109state officials sued in the individual capacities, are “persons”an employee or official of a governmental entity is a “person” subject to suit under the statute. 110Municipalities and other local governmental units may also be sued under § 1983 where the injury is the result of an official policy.111

To be held accountable for acting under “color of state law,” a person must be an employee or official performing his a job within the government or be “a willful participant in a joint action with the State or its agents.”112 Thus, private persons, actively engaging with state officials in the challenged action are acting “under color of law” for purposes of 42 U.S.C. § 1983.113 A court-appointed guardian and his or her attorney are not state actors for purposes of section 1983.114

107 Mitchum v. Foster, 407 U.S. 225 (1972).

108 42 U.S.C. § 1983.

109 Will v. Michigan Dept. of State Police, 491 U.S. 58,71 (1989).

110 Hafer v. Melo, 502 U.S. 21, 31 (1991).

111 Monell v. Dept. of Social Servs.,436 U.S. 658, 694 (1978).

112 Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).

113 Id.

114 See Rodriguez v. Spencer, 2012 WL 639555, Civil No. SA-11-CA-1033-XR (W.D. Tex. Feb. 27, 2012).

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Section 1983 provides no substantive rights, but merely allows a cause of action for the violation of a right protected by the Constitution or another federal statute.115 Section 1983 allows a plaintiff to sue individual governmental actors for damages for acts that allegedly violated some part of the Constitution or some otheranother federal statute. 116Section 1983 does not include liability for remedies sought under state law.117

E.[A.] Judicial Immunity

Although 42 U.S.C. § 1983 is silent as to common law defenses afforded to individuals sued for acts performed in the course of their official duties, the U.S. Supreme Court has held that all government officials are entitled to either absolute or qualified immunity for the such acts.118 Judges are protected from liability for judicial acts performed within the scope of their jurisdiction,119 including probate judges entering orders in guardianship proceedings.120 Judicial immunity affords absolute immunity from liability and suit to judges when performing normal judicial functions.121 As long as the judge has proper jurisdiction, the doctrine protects judges from all judicial decisions even those decisions made in error, bad faith or with malice.122 Although Tthe doctrine does not , however, bar prospective injunctive relief against a judge,123 but Congress amended section 1983 to prohibit injunctive relief under the statute against a

115 Okla. City v. Tuttle, 471 U.S. 808, 816 (1985).

116 City of Oklahoma v. Tuttle, 471 U.S. 808, 816, (1985).

117 See Baker v. McCollan, 443 U.S. 137, 146 (19701979)) (“[S]ection 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”).

118 See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 806-807 (1982); Nixon v. Fitzgerald, 457 U.S. 731, 744-747 (1982)..

119 Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.– – Houston [14th Dist.] 2004, pet denied) (citing Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002)).

120 In the Interest of J.B.H., 2006 WL 2254130, No. 14-05-00745-CV (Tex. App. – Houston [14th Dist.] Aug. 8, 2006) (holding “the trial court did not err in dismissing appellant’s claims against [probate judge] on the basis that she is entitled to judicial immunity regarding her orders in guardianship proceedings”) (citing Twilligear v. Carrell, 148 S.W.3d 502, 504-05 (Tex. App. – Houston [14th Dist.] 2004, pet. denied)).

121 Judicial immunity is not, however, a bar to prospective injunctive relief against a judicial officer acting in a judicial capacity or an award of attorney’s fees for obtaining such relief. See, Pulliam v. Allen, 466 U.S. 522, 542–44 (1984).

122 See, e.g., Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (holding judicial immunity extends to acts done in error, maliciously and even in excess of the judge’s authority); Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that judges are protected by absolute immunity when they act in a judicial capacity, even if they act unconstitutionally).

123 Pulliam v. Allen, 466 U.S. 522 (1984).

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"judicial officer for an act or omission taken in such officer's judicial capacity" unless "a declaratory decree was violated or declaratory relief was unavailable."124

The doctrine exists to protect the integrity of the judicial process, rather than the judges themselves, and to avoid any adverse impact on a judge’s independent decision-making if he or she had to be concerned about facing personal liability. Additionally, someone who believes they have beenparties wronged by a judge haves other remedies available to them, including a motion to reconsideration, an appealappellate, andor mandamus relief.

“Absolute judicial immunity extends to all judicial acts which are not performed in the clear absence of all jurisdiction.”125 Thus, immunity is overcome only for actions that are: (1) non-judicial, i.e., not taken in the judge’s official capacity; or (2) taken in the complete absence of all jurisdiction.126 Judicial acts encompass actions taken by judges in adjudicating, or otherwise exercising judicial authority over, proceedings pending in their courts.127 The Fifth Circuit has established four factors to consider in determining whether an act is “judicial:”

(1) Whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity.128

These factors are construed broadly in favor of immunity.129 Although the scope of immunity is broad, it does not extend to non-judicial acts such as administrative, legislative, or executive functions judges may perform.130 Thus, the following, although performed by a judge,

124 42 U.S.C. § 1983.

125 Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985) (holding that issuing an order to show cause and then incarcerating a person for contempt was a judicial act entitled to immunity in a § 1983 case).

126 Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App. – Houston [14th Dist.] 2004, pet denied) (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).

127 Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App. – Houston [14th Dist.] 2004, pet denied);Id. (citing Mireles v. Waco, 502 U.S. 9, 13 (1991) for the proposition that ordering police officers to use excessive force in bringing a lawyer into court was a judicial act; Forrester v. White, 484 U.S. 219, (1988) for the proposition that “when applied to… acts involved in resolving disputes between parties who have invoked the jurisdiction of a court, the doctrine of absolute judicial immunity has not been particularly controversial.”).

128 Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985).

129 Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985).Id.

130 See Forrester v. White, 484 U.S. 219 (1988) (holding state court judge did not have absolute immunity from damages suit under section 1983 for his decisions to demote and dismiss discharge probation officer); Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731 (1980) (holding legislative, rather than judicial, immunity extended to judges acting to promulgate a code of conduct for attorneys).

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have been considered non-judicial: (1) selecting jurors; (2) establishing and enforcing a code of conduct for attorneys; and (3) making personnel decisions, such as hiring and firing court employees.131

Judicial immunity also requires that the judge must not have acted in the “complete absence of all jurisdiction.”132 Thus, because probate judges are without jurisdiction to try criminal case, if a probate judge convicted a personsomeone of a crime unconstitutionally, the judge could would not assert be entitled to judicial immunity.133 If the existence of subject matter is debatable, however, the doctrine still applies.134

As to guardianships, probate judges have subject matter jurisdiction pursuant to their parens patriae power and are therefore protected by judicial immunity for decisions regarding visitation and pending proceedings in their court. A judge acts in an adjudicatory capacity in appointing a guardian or a temporary guardian and is therefore immune from suit under section 1983.135 The Fifth Circuit has held that because appointment of a guardian ad litem or a court investigator involves no deprivation of liberty, such action is not actionable under section 1983. Although the appointment of a guardian or temporary guardian is empowered to exercise authority over the ward, affecting the ward’s liberty interest, such determinations are within a probate judge’s adjudicatory capacity and are immune from liability.136

III.[VI.] CONCLUSION

Restrictions on access to a proposed ward during the pendency of a contested guardianship proceeding are fraught with constitutional traps. These cases routinely involve basic constitutional protections, such as the right to intimate association, to which probate courts are wise to adhere. Before imposing restrictions on access to a proposed ward, probate courts must carefully analyze and adhere to federal constitutional protections, which at a minimum require notice on all affected parties and a meaningful opportunity to be heard. Basic

131 See Forrester v. White, 484 U.S. 228-31 (1988).

132 Mireles v. Waco, 502 U.S. 9, 11–12 (1991).

133 See, e.g. Bradley v. Fisher, 80 U.S. 335, 352 (1871) (illustrating the distinction between lack of jurisdiction and excess jurisdiction).

134 See Stumpt v. Sparkman, 425 435 U.S. 349, 358 (1978) (citing Bradley v. Fisher, 80 U.S. 335, 351 (1871)).

135 See Bauer v. Texas, 341 F.3d 352, 359 (5th Cir. 2003) (affirming dismissal of section 1983 claim against probate judge and finding no case or controversy existed in attack on temporary guardian statute because judge was acting in his adjudicatory capacity under that statute).

136 See Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003);Id.; see also Listenbee v. Reynolds, 201 F.3d 194 (3d Cir. 2000) (holding that judge was within adjudicatory role in acting pursuant to a statute allowing a county judge to involuntarily commit a minor to a substance-abuse treatment facility on the petition of a parent or legal guardian pursuant to a statute); see also Grant v. Johnson, 15 F.3d 146 (9th Cir. 1994) (holding a judge appointing a temporary guardian pursuant to statute allowing a judge to appoint a temporary guardian without notice or a hearing acted in his adjudicatory capacity and was not a proper party to a section 1983 suit challenging the constitutionality of the statute).

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constitutional protections most likely require personal service on a proposed ward’s family member, especially if she is a non-resident.

Ultimately, restricting or denying someone access to a proposed ward is fraught with constitutional issues. For a probate court to properly obtain jurisdiction over a person for the purpose of issuing an order denying or restricting that person from seeing the proposed ward during the pendency of a contested guardianship proceeding, basic jurisdictional principles will probably dictate that personal service on the proposed ward’s family member is constitutionally required, especially if such family member is a non-resident of the forum state.

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