dissenting.
I dissent.
The majority affirms the trial court’s determination that the Delta County Attorney (county attorney) is entitled to absolute immunity from sanctions to recover attorney fees for violation of C.R.C.P. 11 and § 13-17-102, et seq., C.R.S. (1987 RepLVol. 6A). Because I conclude that the county attorney is not entitled to absolute immunity from the Stepaneks’ claims, I would remand for a hearing to determine if the county attorney violated C.R.C.P. 11 and/or § 13-17-102 to determine whether the evidence supports sanctions including an award of attorney fees against him.
The majority does not distinguish between immunity from a cause of action for damages (such as that brought in Higgs v. District Court, 713 P.2d 840 (Colo.1985) under 42 U.S.C. § 1983 (1982)) and immunity from sanctions for violation of C.R.C.P. 11 or § 13-17-102. In my view, the imposition of sanctions against attorneys and litigants who have violated C.R.C.P. 11 or who have filed a frivolous and groundless suit is distinct from an action for damages arising from an act or acts independent of the conduct of the suit itself; the latter implicates the common law immunity principles set forth in Higgs and the former does not.
On August 5, 1993, the county attorney filed a motion for appointment of the Delta County Department of Social Services (DCDSS) as temporary guardian of the incapacitated person. The motion, which resulted in the removal of the incapacitated person from his home and family for ninety-nine days, was based solely upon allegations of sexual and physical abuse transmitted through facilitated communication (F/C).
F/C is a controversial procedure that is not generally accepted in the scientific community and as to which there is no standardized training, qualifications, or instruction required for facilitators. Although F/C may conceivably provide a means of communication for certain individuals, reliance upon it here appears to have no validity. Here, the incapacitated person is severely retarded, non-verbal, and has vision problems that may be so severe that they prevent him from seeing the F/C keyboard. Moreover, he has had no formal education, is not able to read, and was frequently inattentive or uncooperative during the F/C sessions.
Moreover, no controls were established to ensure that the source of the F/C messages was the incapacitated person and not the facilitator and no blind tests were used to prove the reliability of the F/C procedure. The videotape of the incapacitated person “communicating” through F/C reveals that the procedure was not structured to eliminate the possibility that the facilitator was the source of the messages.
Because of these circumstances, a conclusion that the incapacitated person was the author of the messages transmitted through F/C is, at best, tenuous. It moves to the *1149realm of the incredible when one recognizes that the words contained in the messages were, for the most part, spelled correctly and not spelled phonetically, as would be expected from a person who was, at best, vaguely familiar with the alphabet. Moreover, the use of sentence structure, punctuation, and paragraphs varied depending upon the facilitator, further easting doubt upon the incapacitated person’s authorship of the messages.
Plaintiffs seek sanctions against the county attorney for the unsupported filing of the pleading for appointment of temporary guardian, for removing the incapacitated person from his home, and for failing to terminate the guardianship in a timely manner after it became obvious there was no evidence supporting the allegations ostensibly communicated through F/C. In light of these circumstances, I would conclude that sanctions against the county attorney may be appropriate.
The trial court noted that, although § 26-3.1-104(2), C.R.S. (1995 Cum.Supp.) urges the county director to petition the court for an order authorizing the appointment of a guardian, the director was not licensed to practice law and was therefore reliant upon the county attorney to sign the motion for temporary guardianship. In my view, the act of signing the motion is within the scope of C.R.C.P. 11 and § 13-17-102 and renders the rules of immunity announced in Higgs inapplicable.
The function of immunity is to ensure the proper administration of justice and to enable officials to engage in principled decision making without apprehension of personal consequences. See Awai v. Kotin, 872 P.2d 1332 (Colo.App.1993); Higgs v. District Court, supra. However, I would conclude that immunity does not confer a license to violate the provisions of C.R.C.P. 11 with impunity.
The supreme court, through its exclusive power to make rules governing procedure in civil cases, see Colo. Const, art. VI, § 21; Gold Star Sausage Co. v. Kempf, 653 P.2d 397 (Colo.1982), has promulgated C.R.C.P. 11 which states that an attorney’s signature, which is a prerequisite to filing a pleading, certifies that the attorney has read the pleadings and:
1. To the best of the attorney’s knowledge, information, and belief formed after reasonable inquiry, the pleading is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and
2. The pleading is not filed for the purpose of causing delay, harassment, or an increase in the cost of litigation.
The result affirmed by the majority derogates from the power of the supreme court to regulate the conduct of licensed attorneys and would provide absolute immunity to a county attorney who utterly fails to comply with C.R.C.P. 11 (i.e. by signing and filing a pleading that the attorney has not read.)
The record indicates that the following events took place after the filing of the motion for appointment of temporary guardian on August 5, 1993, and prior to the county attorney’s filing on November 12,1993, of the motion to terminate the temporary guardianship:
1. On August 5,1993, the incapacitated person underwent a physical examination which revealed no anal, oral, or genital lesions. The doctor concluded that there were no definite physical findings which supported the allegations of sexual abuse.
2. On August 7, 1993, a DCDSS caseworker facilitated an F/C session but no messages were communicated.
3. On August 11, 1993, the same result occurred when the incapacitated person’s sisters facilitated an F/C session.
4. By August 23, 1993, the incapacitated person had tested positive for chlamydia, a sexually transmitted disease. There was some question about whether this was a false positive. Plaintiff Louis Stepanek had tested negative for chlamydia and the Delta County Sheriffs Office (DCSO) had concluded that there was not sufficient evidence to warrant further pursuit of the case against him;
5. On August 25, 1993, in the motion to continue temporary guardianship, the county attorney admitted that it was diffi*1150cult to determine whether the incapacitated person was being manipulated during F/C;
6. The court-appointed visitor (visitor) later testified that by September 6, 1993, there was no corroborating evidence to support the incapacitated person’s allegations of sexual abuse; and
7. On November 12, 1993, the visitor reported to the trial court her opinion that the incapacitated person was not communicating through F/C and that there were considerable differences in the speed of the typing and the content of the incapacitated person’s responses depending upon the facilitator’s awareness of the correct answers.
In my view, Rule 11 required the county attorney to make a reasonable inquiry to determine that the motion was well-grounded in fact. Such an inquiry would have revealed the physical limitations and inattentiveness of the incapacitated person during the F/C session and the lack of acceptance of the F/C technique. I believe that if the county attorney violated Rule 11, he is not immune from sanctions under Rule 11 or § 13-17-102.
Although I acknowledge the need for a county attorney to be able to protect the health and well-being of children and at-risk adults without worrying about intimidation and harassment by dissatisfied parents, Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984), the final paragraph in C.R.C.P. 11 protects a county attorney after he or she has filed an emergency motion provided the attorney adequately inquires into the matter within a reasonable time and responds appropriately.
Therefore, I would remand the cause for hearing to determine if the county attorney violated C.R.C.P. 11 and/or § 13-17-102 and for the imposition of appropriate sanctions if indicated.