The opinion of the court was delivered by: Chief Justice Kilbride
CHIEF JUSTICE KILBRIDE delivered the opinion of the court, with opinion.
Justices Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justices Freeman and Theis.
¶ 1 In this appeal, we address whether plaintiffs' cause of action against a court-appointed psychological evaluator is barred by res judicata and absolute immunity. The trial court dismissed plaintiffs' suit on both grounds. The appellate court affirmed the dismissal on res judicata grounds and, alternatively, absolute immunity. For the reasons that follow, we affirm.
¶ 3 In 1998, plaintiff, Deborah Orlando Cooney, was granted custody of her two children in a judgment for dissolution of marriage. Deborah's ex-husband, Lorenzo Orlando, subsequently filed a petition for change of custody. Deborah filed a motion for appointment of a psychological evaluator to formulate recommendations on custodial arrangements for the children. The trial court appointed defendant, Lyle Rossiter, a general and forensic psychiatrist, as the evaluator, pursuant to section 605 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/605 (West 2002)).
¶ 4 Rossiter opined that the children should be removed from
Deborah's custody and that she and her parents undergo psychiatric treatment for their delusional disorder, Munchausen's by proxy syndrome, and parental alienation syndrome. The report further recommended no contact with the children and that a report be made to the Department of Children and Family Services (DCFS).
¶ 5 Based on Rossiter's written evaluation, the circuit court granted
Lorenzo's petition for a change in custody and entered an emergency order of protection barring Deborah from having visitation or contact with the children.
¶ 6 DCFS then began an investigation of Deborah when a social worker hired by Lorenzo to treat the children reported Deborah as a child abuser based on Rossiter's evaluation. Rossiter also made statements to a DCFS investigator about Deborah and her parents' purported delusional behavior. DCFS made findings of child abuse and neglect against Deborah. In March 2007, an administrative law judge affirmed the DCFS findings.
¶ 7 In May 2007, Deborah and two other plaintiffs filed a class-action lawsuit in federal court under section 1983 of the Civil Rights Act of 1991 (42 U.S.C. §1983 (2006)) against 12 defendants who each played a role in their child custody proceedings, including Rossiter. The federal district court dismissed the lawsuit in its entirety. Cooney v. Rossiter, No. 07 C 2747 (N.D. Ill. Aug. 20, 2008), aff'd, 583 F.3d 967 (7th Cir. 2009), cert denied, ___ U.S. ___, 130 S. Ct. 3322 (2010). Upon dismissal of the claim against Rossiter, the district court reasoned "it is well-established that court-appointed psychological evaluators are 'protected by the same immunity extended to judges and other judicial officers.' " Cooney, slip op. at 7 (quoting Bartlett v. Weimer, 268 F.2d 860, 862 (7th Cir. 1959)).
¶ 8 On June 13, 2007, Deborah and her parents filed a cause of action in the circuit court of Cook County, claiming intentional infliction of emotional distress by Rossiter for making a false evaluation and for making false statements. Plaintiffs subsequently added one of Deborah's sons, Christopher, as a plaintiff.
¶ 9 Rossiter filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)). The trial court granted Rossiter's motion to dismiss plaintiffs' cause of action, finding that the lawsuit was barred by res judicata and absolute immunity. The appellate court affirmed. 2011 IL App (1st) 102129-U. We allowed plaintiff's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 11 Initially, we must address the appellate court's failure to follow proper procedure when filing modified opinions. Specifically, on September 23, 2011, the appellate court filed an unpublished order under Supreme Court Rule 23 (Ill. S. Ct. R. 23 (eff. July 1, 2011)). Cooney v. Rossiter, 2011 IL App (1st) 102129-U. On October 14, 2011, ...