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State, Dept. of Health & Social Services v. Sandsness (5/23/2003) sp-5693
State, Dept. of Health & Social Services v. Sandsness (5/23/2003) sp-5693
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DEPARTMENT OF HEALTH AND ) Supreme Court No. S-9910
SOCIAL SERVICES, DIVISION OF )
FAMILY AND YOUTH SERVICES, ) Superior Court No. 3AN-95-7078
CI
)
Petitioners, ) O P I N I O N
)
v. ) [No. 5693 - May 23, 2003]
)
SANDRA SANDSNESS and MARCI )
BURNETT, individually and as )
Personal Representative of the )
ESTATE OF RICHARD P. )
SANDSNESS, and as parent and legal )
guardian and next friend of RYAN )
BURNETT, )
)
Respondents. )
________________________________)
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Sen K. Tan, Judge.
Appearances: Robert P. Blasco, Robertson,
Monagle & Eastaugh, Juneau, for Petitioner
State of Alaska. Ronald K. Melvin, Law
Office of Ronald K. Melvin, Anchorage, for
Respondents. [No brief filed.]
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
MATTHEWS, Justice, with whom FABE, Chief
Justice, joins, concurring.
I. INTRODUCTION
Darrel Whitaker shot and killed Richard Sandsness seven
weeks after the State of Alaska released Whitaker, a seventeen-
year-old juvenile offender, from custody. Sandsness's widow and
daughter sued the state for negligence, alleging that it knew
Whitaker had dangerous propensities. Denying summary judgment to
the state, the superior court held that the state, in deciding
whether to ask a court to extend Whitaker's state commitment,
owed an actionable duty to exercise due care. We reverse.
Imposing this duty would conflict with the state's goal of
rehabilitating juvenile offenders and could reduce public safety
in the long run.
II. FACTS AND PROCEEDINGS
Darrel Whitaker was placed on probation in early 1991
for vandalizing a vehicle and consuming alcohol. He was then
fourteen years old. In August 1991, after he violated his
probation conditions by possessing fire-starting devices and
starting fires in a foster home, Whitaker was committed to the
custody of the State of Alaska until August 9, 1993. The Alaska
Division of Family and Youth Services (DFYS) placed him at
McLaughlin Youth Center (MYC). In June 1993 his treatment
supervisor recommended that Whitaker be released to his father's
custody to work with his father in a remote logging camp. The
recommendation stated that "[t]he prognosis for successful
release and reintegration into society for Darrel is good." It
noted the need to reunite him with his father and his
"significant gains" during his stay at the youth center, and also
stated that the "treatment team feels that the likelihood of any
further progress while at MYC by Darrel would be minimal. . . .
Reuniting Darrel with his father, providing an opportunity to
continue his school, and the chance for employment would be the
next logical treatment move for him." Two other DFYS workers
approved this recommendation, which was then referred to a review
board, which also approved it. Per the recommendation, DFYS
released Whitaker to his father's custody on July 2, 1993,
several weeks before his commitment period would have expired on
August 9.
On August 21 Whitaker shot and killed Richard
Sandsness, an Anchorage taxi cab driver, while attempting to rob
him. Whitaker turned seventeen a month after his release and
about three weeks before he murdered Sandsness.
The decedent's widow and daughter sued the state and
others. They alleged in part that DFYS negligently failed to
properly evaluate Whitaker before his release, negligently failed
to adequately supervise or control him after his release, and
negligently failed "to communicate to the proper decision makers"
his allegedly "violent propensities." The state moved for
summary judgment on various theories.
The superior court granted in part and denied in part
the state's summary judgment motions. Relying on this court's
decision in Division of Corrections v. Neakok,1 the superior
court held that the state owed no duty to supervise or control
Whitaker at the time of the murder because the crime occurred
after Whitaker's period of commitment had expired. The superior
court also held that the state owed no duty to warn the general
public of Whitaker's dangerous propensity. The court initially
declined to decide whether the state has a pre-release duty to
petition a court to extend custody of a minor under AS
47.12.120(b)(1) if the state "is aware that the minor poses a
danger to the general public." After the state moved for summary
judgment on that issue, the superior court held that DFYS had a
duty to act carefully and reasonably in deciding whether to ask
the superior court to extend Whitaker's period of commitment.
The court also held that DFYS's decision not to seek continued
commitment of Whitaker was not immune from liability under the
discretionary function immunity doctrine codified at AS
09.50.250(1).2 Accordingly, the court held that issues of
material fact regarding whether the state breached this pre-
release duty precluded summary judgment for the state.
The state petitioned for interlocutory review of the
superior court's order denying the state's motion for summary
judgment. We granted review under Appellate Rule 402(b)(2) and
ordered full briefing.3 Counsel who originally appeared for
respondents responded to the state's petition for review but
filed no brief after we granted the petition and ordered
briefing. New counsel appeared for respondents after briefing
and argument were complete.
III. STANDARD OF REVIEW
We review denials of summary judgment motions de novo
to determine whether there are genuine issues of material fact
and whether the moving party is entitled to judgment as a matter
of law, viewing all facts in the light most favorable to the non-
movant.4 The existence and extent of a duty of care are
questions of law which we review de novo.5
IV. DISCUSSION
The state asks us to hold that the superior court
erroneously determined that DFYS had an actionable duty to use
due care in deciding whether to ask a court to extend Whitaker's
commitment to the state. Analyzing this case under the
Restatement (Second) of Torts 315 and 319 (1965), we conclude
that the state did not owe the duty described by the superior
court. We would reach the same conclusion if we were to employ
the superior court's approach and apply the policy considerations
adopted in D.S.W. v. Fairbanks North Star Borough School District
and other policy considerations applicable to public agencies.
Accordingly, we need not reach the other issues presented by the
state's petition. A. DFYS's Relationship with Juveniles
Committed to Its Custody Does Not Give Rise to the Actionable
Duty Imposed by the Superior Court.
The superior court held that DFYS's relationship with
potentially dangerous juveniles committed to its custody
justifies imposing an actionable duty on DFYS to exercise due
care in determining whether to petition a court for continued
commitment before release. The court noted that while there is
generally no duty to prevent foreseeable harms committed by third
parties, section 315 of the Restatement (Second) of Torts
provides for an exception to this rule if the defendant has a
special relationship with either the third party or the potential
victim which justifies imposing such a duty.6
Section 315 states the rule as follows:
There is no duty so to control the conduct of
a third person as to prevent him from causing
physical harm to another unless
(a) a special relation exists between
the actor and the third person which imposes
a duty upon the actor to control the third
person's conduct, or
(b) a special relation exists between
the actor and the other which gives to the
other a right to protection.
Section 319 describes the special relationship rule
that potentially applies in this case:
One who takes charge of a third person whom
he knows or should know to be likely to cause
bodily harm to others if not controlled is
under a duty to exercise reasonable care to
control the third person to prevent him from
doing such harm.
In holding that the state owed Sandsness an actionable
duty, the superior court applied the so-called D.S.W. factors7
and treated Division of Corrections v. Neakok as controlling.8
This court held in Neakok that the state had a special
relationship with a parolee, justifying imposition of a tort duty
to control the parolee both because the state had a substantial
ability to control him and because it had the "ability to foresee
the dangers the parolee poses" to society upon release.9 The
superior court determined that this rationale is equally
applicable here, because the state had ample opportunity to
observe Whitaker and substantial ability to postpone his release.
The state contends that Neakok and other cases finding
special relationships are inapposite because DFYS did not have
any ability to control Whitaker at the time of the murder. The
state argues that its special relationship with Whitaker ended
with the original two-year commitment, which expired twelve days
before the murder. Without a contemporaneous special
relationship, the state argues, there is no basis for imposing a
duty to control. We need not decide whether these propositions
have merit because our agreement with another argument advanced
by the state resolves this petition.
The state's argument that is dispositive relies on and
quotes from Sorge v. State in contending that imposing a duty to
control on the basis of DFYS's relationship with Whitaker would
"disturb the delicate balance the Legislature has crafted between
the best interests of children and the broader interests of
public safety."10 In Sorge, the Vermont Supreme Court rejected
the plaintiffs' contention that the state had an actionable duty
under Restatement 319 to control a juvenile who assaulted a
newspaper delivery man during a weekend leave with his mother.11
While agreeing that the state had a "special relationship" with
juveniles committed to its custody, the Vermont Supreme Court
rejected the contention that the state's exclusive purpose was to
"control" those juveniles for the protection of the public.12
Accordingly, the court refused to impose liability on the state
for harm caused by third persons released from a state
rehabilitative program.13 The court surveyed relevant case law
and noted that similar attempts to impose liability had been
rejected by courts "that have recognized that most juvenile and
adult programs dealing with persons committed to the custody of
the State are intended to rehabilitate conduct rather than
control it."14 The court reasoned that tort liability for
negligent release decisions could pressure states to " `err more
often on the side of excessive detention.' "15 This would "erode
the public policy of rehabilitation of juveniles through
reunification with their families and the public."16
The Vermont Supreme Court's reasoning applies with
equal force in Alaska. We have recognized that "rehabilitation
rather than punishment is the express purpose of juvenile
jurisdiction."17 Successful rehabilitation demands the earliest
possible reintegration of the juvenile with his family and
community consistent with public safety.18 The Alaska legislature
has already crafted a balance between the interests of the child
and the broader interest of public safety. Alaska Statute
47.12.120(b)(1) provides that the state may petition for and the
court may grant extensions of commitment "if the extension is in
the best interests of the minor and the public."19 (Emphasis
added.) Further, AS 47.12.260 permits DFYS to release juveniles
at any time - without court approval - "if it appears to the
satisfaction of the department that there is a reasonable
probability that the juvenile will remain at liberty without
violating the law."20 (Emphasis added.) Thus, the legislature has
allocated the risk of repeat offenses to the public in exchange,
presumably, for offsetting gains realized by rehabilitating
juvenile offenders to make them productive members of society.21
Imposing tort liability for harm caused by released juveniles
would distort this balance.
At least one state supreme court has implicitly
rejected this analysis - at least with respect to adult
parolees. In Grimm v. Arizona Board of Pardons & Paroles, the
Arizona Supreme Court relied on Restatement 319 to impose
liability on a parole board for harms caused by a negligently
released parolee.22 The parole statute authorized release of
prisoners only if there was a "reasonable probability that [the
parolee] will live and remain at liberty without violating the
law."23 The court explained that, absent such reasonable
probability, parole was not authorized and the board members
could not receive immunity for granting parole.24 The court held
that:
The board members should not bear liability
for taking the risk allocated to them as a
statutory duty. If it reasonably appears
that the applicant is a good risk, the board
members should not be liable if it turns out
that they guessed wrongly.[25]
Under this view, tort liability for negligent release would
simply reinforce rather than distort the legislative scheme - the
parole board could only be held liable when reasonable jurors
could find that the board subjected the public to a greater risk
than that authorized by law.
The superior court in the case before us took a similar
position. Noting that DFYS was already obligated under its own
regulations to consider petitioning the court for continued
commitment during its pre-release review,26 the court implicitly
reasoned that imposing liability for a negligent failure to do so
would not distort the proper balance between rehabilitation of
juveniles and protection of the public. But the court also
stated that "[i]n order to prevent future harm, the State must
ensure that a potentially dangerous juvenile delinquent is not
released." (Emphasis added.) This may be an understandable
position in light of the ensuing tragedy in this case. But it
illustrates the danger of using tort liability to police the
state's discretion in the area of juvenile corrections - the
state may well "err on the side of excessive detention" to avoid
negligence suits or judgments.27 This may seem to be good policy
for citizens going about their private affairs, but it would
unduly frustrate the primary goal of our juvenile justice system
- rehabilitation.28 In exchange for theoretical short-term
benefits, the long-term benefits resulting from rehabilitation
might be lost or diminished. The benefits of rehabilitation are
not limited to those personal to the juvenile; they also include
reducing the chances the juvenile will commit new crimes even as
an adult. Accordingly, we hold that the state's special
relationship with juvenile offenders in its custody does not
justify imposing liability for negligently failing to petition
the court to extend their commitment.
The superior court decision denying summary judgment to
the state on the pre-release liability claim discussed Neakok in
some detail and treated it as persuasive when the superior court
conducted its D.S.W. analysis. In Neakok this court held that
the state's supervisory relationship with its parolees justified
imposing a duty to use care to prevent a parolee with known
dangerous propensities from causing foreseeable injuries to other
people.29 The facts of that case are distinguishable from the
facts here. The releasee there was an adult whose release was
mandatory. Although the state had no authority to extend his
confinement or ask the court to do so, it had authority to impose
conditions on his release. Whitaker, however, was a juvenile
offender. The social interest in rehabilitating juvenile
offenders strongly outweighs any interest in making the state
liable for loss resulting from new crimes that might have been
prevented had the state asked the court to delay the juvenile's
release. The prospect of state tort liability should not be a
factor in deciding whether to release a juvenile offender.
Neakok does not control the case now before us.30
We consequently conclude that Restatement 319 did not
impose a tort duty on the state to seek a court-ordered extension
of Whitaker's state commitment.
B. The D.S.W. Considerations Would Not Justify
Imposing a Duty Here.
In D.S.W. v. Fairbanks North Star Borough School
District we adopted a list of considerations used by the
California courts to decide whether, as a matter of policy, a
tort duty should be imposed.31 Although we have observed that
there is no need to rely on the D.S.W. factors in deciding
whether an actionable duty exists if the duty issue is governed
by recognized principles of tort law,32 we have nonetheless
sometimes referred to those factors in considering whether a
"special relationship" gives rise to an actionable duty.33 The
ultimate question, of course, is whether the nature of the
relationship imposes a duty to do particular things to control
another.34 For the reasons discussed in Part IV.A, the pre-
release relationship between the state and Whitaker did not give
rise to a duty to ask the court to extend his commitment.
The state relies prominently on the D.S.W. factors
here, as did the superior court, and as we did in Neakok and in
other cases in which there were special relationships.35 We
therefore briefly discuss those factors to confirm our conclusion
that the state had no common-law tort duty based on its special
relationship with Whitaker. We conclude that if those factors
did control our analysis, they would not justify imposing a tort
duty here.
While the most important single D.S.W. factor is
foreseeability,36 we also consider the degree of certainty that
the plaintiff suffered injury, the closeness of connection
between the defendant's conduct and the plaintiff's injury, the
moral blame attached to the defendant's conduct, the policy of
preventing further harm, and the extent of the burden to the
defendant and consequences to the community of imposing a burden
of care.37 When a public agency is involved, we further consider
the extent of the agency's power, the role imposed on it by law,
and the limitations imposed on it by budget.38
The state may only be held liable for negligently
failing to seek Whitaker's continued commitment "if it could have
foreseen that its failure to do so might cause harm to
[Sandsness]."39 The superior court held that it was foreseeable
Whitaker continued to pose a threat to society, given the state's
extensive record of Whitaker's preoccupation with, and tendency
towards violence, as well as his behavioral problems at
McLaughlin Youth Center and other state institutions. The state
argues that DFYS's general knowledge of Whitaker's dangerous
propensity is insufficient to satisfy the foreseeability
requirement.
The state places great weight on Dinsmore-Poff v.
Alvord.40 But that case did not present the legal question
whether the relationship was such that it could give rise to an
actionable duty to control another. Rather, the question was
whether there was sufficient evidence to allow a jury to decide
whether parents had reason to control their child. We noted that
"[t]he [parents] were undisputedly on general notice of [their
son's] dangerous propensity" before Dinsmore's murder.41 But we
affirmed the lower court's ruling because the plaintiffs did not
present any evidence which could allow a jury to believe that the
parents had a duty to act to prevent their son from committing a
specifically and imminently foreseeable harm.42
The superior court here noted that we rejected a
similarly narrow view of foreseeability in discussing the duty
issue in Neakok.43 We there concluded that the parolee's "victims
and his actions were within the zone of foreseeable hazards of
the state's failure to use due care in supervising [the
parolee]."44 As we said more recently, "In the context of
determining the existence of a duty, we have made it clear that
foreseeability is a broad concept and does not require that the
precise harm in a given case be predictable."45
The superior court discussed evidence that Whitaker had
violent propensities.46 Given what the state did know, we assume
that it was sufficiently foreseeable that Whitaker might commit
new crimes after his release from custody to satisfy the first
D.S.W. duty consideration.
But foreseeability alone would not necessarily justify
imposing a duty to act here. We have declined to impose a duty
in some cases in which foreseeability was present.47 Here the
remaining considerations would strongly outweigh the
foreseeability factor and complement our analysis under
Restatement 319.
There is no dispute that Sandsness suffered injury.
But the connection between the consequence of Whitaker's crime
and the state's failure to act is attenuated. As the state
notes, DFYS could not have unilaterally extended Whitaker's
commitment under AS 47.12.120(b)(1) - the superior court would
have had to decide whether to grant the state's extension
petition. The state's petition would have been a necessary, but
not sufficient condition, for extending the commitment. Because
Whitaker presented no particularized threat (as to when he might
act, and against whom), the timing of his release was not
obviously critical. As a juvenile offender, his commitment could
not be extended indefinitely. It is not obvious that extending
his commitment would have made him less likely to commit violent
acts sometime after his eventual release.48
Regarding the degree of moral blame, the state
persuasively argues that DFYS's decision not to seek a commitment
extension is consistent with the established policy of attempting
to rehabilitate juveniles by reintegrating them with their
families and the public. Accordingly, the state cannot be blamed
for the recognized risks that potentially dangerous juveniles
generally pose to society upon release.
Likewise, the policy of preventing future harm would
not obviously be served by imposing a duty. Under AS
47.12.010(b), initial commitment periods cannot extend beyond the
juvenile's nineteenth birthday, and re-commitment periods cannot
extend beyond the juvenile's twentieth birthday. As the state
admits, there is no clear correlation between the length of
commitment and the rate of recidivism. Thus, there is no reason
to believe that incarcerating all dangerous juveniles until their
twentieth birthdays would likely produce a safer society. The
opposite conclusion is at least equally likely. Society's
commitment to the goal of rehabilitating juveniles by
reintegrating them with their families and the public reflects an
implicit belief that early reintegration is more likely to
maximize public safety in the long-term than prolonged isolation
of juveniles from their families and the broader community of law-
abiding citizens.
The remaining D.S.W. factors include the burden on the
defendant and the community if a duty of care were imposed, and
considerations of the agency's appropriate role and the power
accorded to it by law.49 Collectively, these considerations
strongly suggest that we should not impose an actionable duty to
petition for commitment extensions for dangerous juveniles.
The state persuasively argues that imposing the duty
described by the superior court would lead DFYS to petition to
recommit virtually every juvenile with dangerous propensities,
because it is impossible to accurately predict which are likely
to engage in future criminal activity.50 Likewise, the state
would be discouraged from releasing these juveniles early (as
happened here when DFYS released Whitaker about five weeks before
his commitment was to expire). Both results would seriously
undermine the goal of rehabilitation.51
Also, imposing a duty here would make the courts the
sole arbiters of whether Alaska's juvenile offenders should be
recommitted. Imposing a duty would encourage DFYS to petition
for continued commitment in every questionable case to shield
itself from potential liability, shifting the recommitment
decision to the courts. This is contrary to the arrangement
created by AS 47.12.120(b)(1). The statute requires DFYS and the
court to agree to extend a juvenile's commitment period.52 This
structural check against either institution's willingness to
recommit juvenile offenders would be frustrated by imposing a
civil tort duty.
Additionally, the professionals at DFYS are arguably
better suited than the courts to weigh the risks of release
against any net benefits of continued commitment. The duty
described above could deprive the courts of DFYS's most candid
appraisal, because DFYS could not simultaneously petition for
continued commitment for the sake of avoiding liability and
represent that, in its best judgment, further commitment is not
worthwhile. The state further notes that the courts' resources
would be significantly strained by requiring them to screen
recommitment petitions for possibly 150 juveniles each year.
Finally, there is no principled way to limit the duty
imposed by the superior court to the relatively minor
governmental function of petitioning the superior court for
commitment extensions of juveniles with known dangerous
propensities.
V. CONCLUSION
We therefore conclude that imposing the duty described
by the superior court would interfere with the state's goal of
rehabilitating youthful offenders without yielding any
predictable gains in public safety. We accordingly REVERSE and
REMAND for entry of summary judgment for the state.
MATTHEWS, Justice, with whom FABE, Chief Justice, joins,
concurring.
I agree with the rationale and the result of today's
opinion. But I think that our decision in Division of
Corrections v. Neakok53 should be overruled rather than merely
distinguished and questioned.
We will overrule a prior decision when we are "clearly
convinced that the rule was originally erroneous or is no longer
sound because of changed conditions, and that more good than harm
would result from a departure from precedent."54 In my view this
standard has been met regarding Neakok. The decision in that
case as to the duty to impose parole conditions is not sound, in
my opinion, because it imposes liability for decisions that are
inherently discretionary as they involve balancing the sometimes
conflicting goals of rehabilitation and protection of the public.
Like initial sentencing decisions, this is an area where state
officials should not be second-guessed in a tort trial. The
result of Neakok, I believe, has been to cause corrections
officials to err on the side of restrictiveness when considering
discretionary parole. Today's opinion recognizes these problems
in the context of juvenile justice and recognizes that they may
also apply to adult corrections.
In my judgment, we should frankly recognize that Neakok
is unsound and overrule it rather than allow it to continue to
work its mischief.
_______________________________
1 721 P.2d 1121 (Alaska 1986).
2 The court held that the specific decision-makers - as
opposed to the state - were nonetheless immune from suit under
the doctrine of official immunity.
3 Appellate Rule 402(b)(2) authorizes discretionary review
before final judgment where "[t]he order or decision involves an
important question of law . . . and an immediate review . . . may
advance an important public interest which might be compromised
if the petition is not granted."
4 P.G. v. State, Dep't of Health & Human Servs., 4 P.3d 326,
330 (Alaska 2000).
5 Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d
105, 109 (Alaska 1992).
6 Cf. Neakok, 721 P.2d at 1126 (citing Restatement (Second) of
Torts 315 (1965)).
7 D.S.W. v. Fairbanks North Star Borough Sch. Dist., 628 P.2d
554, 555 (Alaska 1981).
8 721 P.2d 1121 (Alaska 1986).
9 Id. at 1126. This court accordingly held that "[g]iven this
special relationship, it is not unreasonable to impose a duty of
care on the state to protect the victims of parolees." Id. at
1126-27.
10 Sorge v. State, 762 A.2d 816, 823 (Vt. 2000).
11 Id. at 817-18, 820-23.
12 Id. at 820-23.
13 Id. at 820 (citing Rivers v. State, 328 A.2d 398, 400 (Vt.
1974) (refusing to impose liability on state "where there is
release on probation or parole, or even for early release based
on good time")).
14 Id. at 820-21.
15 Id. at 821 (quoting Ruf v. Honolulu Police Dep't, 972 P.2d
1081, 1093 (Haw. 1999)).
16 Id. at 822 (citing Vermont's statutory scheme for juvenile
corrections and noting express purposes of rehabilitation and
reintegration with society).
17 Rust v. State, 582 P.2d 134, 140 n.21 (Alaska 1978); see
also AS 47.12.010 ("The goal of this chapter is to promote a
balanced juvenile justice system" which will protect the public
and help juveniles develop into productive citizens).
18 See AS 47.05.060 ("The purpose of this title as it relates
to children is to secure for each child the care and guidance,
preferably in the child's own home, that will serve the . . .
welfare of the child and the best interests of the community . .
. ."); cf. Matter of S.D., 549 P.2d 1190, 1199 (Alaska 1976)
("[R]emoval of children from the family home may be a drastic,
traumatic and emotionally damaging experience which is justified
only under extreme conditions. Children should, if at all
possible, be maintained in their homes with society providing the
supportive services necessary to keep the family together.").
19 AS 47.12.120(b) provides in pertinent part:
If the minor is not subject to (j) of this
section and the court finds that the minor is
delinquent, it shall
(1) order the minor committed to the
department for a period of time not to exceed
two years or in any event extend past the day
the minor becomes 19 years of age, except
that the department may petition for and the
court may grant in a hearing (A) two_year
extensions of commitment that do not extend
beyond the minor's 19th birthday if the
extension is in the best interests of the
minor and the public; and (B) an additional
one_year period of supervision past age 19 if
continued supervision is in the best
interests of the person and the person
consents to it; the department shall place
the minor in the juvenile facility that the
department considers appropriate and that may
include a juvenile correctional school,
juvenile work camp, treatment facility,
detention home, or detention facility; the
minor may be released from placement or
detention and placed on probation on order of
the court and may also be released by the
department, in its discretion, under AS
47.12.260;
(2) order the minor placed on
probation, to be supervised by the
department, and released to the minor's
parents, guardian, or a suitable person; if
the court orders the minor placed on
probation, it may specify the terms and
conditions of probation; the probation may be
for a period of time not to exceed two years
and in no event to extend past the day the
minor becomes 19 years of age, except that
the department may petition for and the court
may grant in a hearing
(A) two_year extensions of supervision
that do not extend beyond the minor's 19th
birthday if the extension is in the best
interests of the minor and the public; and
(B) an additional one_year period of
supervision past age 19 if the continued
supervision is in the best interests of the
person and the person consents to it;
(3) order the minor committed to the
custody of the department and placed on
probation, to be supervised by the department
and released to the minor's parents,
guardian, other suitable person, or suitable
nondetention setting such as with a relative
or in a foster home or residential child care
facility, whichever the department considers
appropriate to implement the treatment plan
of the predisposition report; if the court
orders the minor placed on probation, it may
specify the terms and conditions of
probation; the department may transfer the
minor, in the minor's best interests, from
one of the probationary placement settings
listed in this paragraph to another, and the
minor, the minor's parents or guardian, the
minor's foster parent, and the minor's
attorney are entitled to reasonable notice of
the transfer; the probation may be for a
period of time not to exceed two years and in
no event to extend past the day the minor
becomes 19 years of age, except that the
department may petition for and the court may
grant in a hearing
(A) two_year extensions of commitment
that do not extend beyond the minor's 19th
birthday if the extension is in the best
interests of the minor and the public; and
(B) an additional one_year period of
supervision past age 19 if the continued
supervision is in the best interests of the
person and the person consents to it . . . .
20 AS 47.12.260 provides:
A minor found to be a juvenile
delinquent who by conduct gives sufficient
evidence of having reformed may be released
at any time under the conditions and
regulations that the department considers
proper, if it appears to the satisfaction of
the department that there is a reasonable
probability that the minor will remain at
liberty without violating the law.
21 One study in Pennsylvania cited in the state's brief found
that fifty-five percent of all released juvenile offenders were
subsequently rearrested. See In the Interest of J.R., 648 A.2d
28, 36-37 (Pa. Super. 1994).
22 564 P.2d 1227, 1234 (Ariz. 1977).
23 Id. at 1232 (quoting Ariz. Rev. Stat. 31 - 412 (1977)
(amended 1978)).
24 Id.
25 Id.
26 See 7 Alaska Administrative Code (AAC) 52.210 (2002)
(providing that review board must consider several factors "[i]n
determining whether a resident should be released, whether the
resident's commitment should be allowed to elapse, or whether a
recommendation should be made for continued commitment")
(emphasis added).
27 Sorge, 762 A.2d at 821 (quoting Ruf, 972 P.2d at 1093).
28 Rust, 582 P.2d at 140 n.21.
29 721 P.2d at 1130, 1132.
30 The state's brief in this case has not asked us to overrule
Neakok. We recognize that considerations similar to those that
we find dispositive here may bear on correctional decisions
regarding adult offenders. Because we have not been asked to
overrule Neakok, because the question whether to do so has not
been briefed (indeed, the respondents have filed no brief), and
because the present case is factually distinguishable, we decline
to consider sua sponte whether Neakok remains good law or should
be overruled.
31 628 P.2d at 555 (citing Peter W. v. San Francisco Unified
Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)).
32 See, e.g., Kallstrom v. United States, 43 P.3d 162, 167
(Alaska 2002); Wongittilin v. State, 36 P.3d 678, 681 (Alaska
2001); Waskey v. Municipality of Anchorage, 909 P.2d 342, 343-44
(Alaska 1996).
33 See, e.g., P.G. v. State, Dep't of Health & Human Servs., 4
P.3d 326, 331 (Alaska 2000); R.E. v. State, 878 P.2d 1341, 1347
(Alaska 1994); Neakok, 721 P.2d at 1125.
34 Cf. P.G., 4 P.3d at 334; M.A. v. United States, 951 P.2d
851, 854 n.6 (Alaska 1998).
35 See, e.g., R.E., 878 P.2d at 1347 (holding there was duty
under D.S.W. analysis and then confirming that this holding was
"consistent" with common-law special relationship principles);
Neakok, 721 P.2d at 1125.
36 Neakok, 721 P.2d at 1125.
37 Id.
38 Thompson v. County of Alameda, 614 P.2d 728, 733 (Cal.
1980).
39 Neakok, 721 P.2d at 1127. Neakok explained that "[w]hile a
specific case-by-case determination of foreseeability and
causation lies within the province of a jury, the existence of a
duty is a question of law." Id. at 1127 n.7. Thus, in reviewing
whether Whitaker's crime was sufficiently foreseeable to justify
imposing a duty, we are not deciding whether the state should
have foreseen the crime. Id. Rather, we are deciding whether,
as a matter of judicial policy, a jury should be permitted to
consider whether Whitaker's actions were foreseeable. Cf. Arctic
Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199,
1203-05 (Alaska 1998) (holding summary judgment appropriate where
undisputed facts compel conclusion that one party owed no duty to
other).
40 972 P.2d 978 (Alaska 1999).
41 Id. at 985.
42 Id. at 987.
43 721 P.2d at 1128-29.
44 Id. at 1129.
45 P.G., 4 P.3d at 331 n.11.
46 Whitaker's initial probation and commitment to the state's
custody arose out of property crimes and underage consumption of
alcohol. But Whitaker's institutional record included several
documented escape plans involving "the planned usage of weapons
that could cause deadly injuries," at least one unprovoked
assault on another resident, and a period of treatment in the
facility's Intensive Behavioral Adjustment Program. Whitaker
apparently did not have a history of actually committing violent
acts before his release.
47 Mesiar v. Heckman, 964 P.2d 445, 450 (Alaska 1998); Kooly
v. State, 958 P.2d 1106, 1109-10 (Alaska 1998); Karen L. v.
State, Dep't of Health & Soc. Servs., 953 P.2d 871, 876 (Alaska
1998); Schumacher v. City & Borough of Yakutat, 946 P.2d 1255,
1257 n.3 (Alaska 1997); Hawks v. State, 908 P.2d 1013, 1016
(Alaska 1995); Estate of Day v. Willis, 897 P.2d 78, 82 (Alaska
1995).
48 The state further suggests that Whitaker's intentional
murder of Sandsness severs DFYS's connection to the tragedy. But
Neakok rejected a similar argument, reasoning that the parolee's
intentional acts do not relieve the state of liability when those
are the very acts the state may be under a duty to take
reasonable steps to predict and prevent. 721 P.2d at 1136 n.21.
49 See Neakok, 721 P.2d at 1125; Thompson, 614 P.2d at 733.
50 Neakok, 721 P.2d at 1130 n.13 (recognizing difficulties
inherent in predicting potential dangerousness of released
prisoners).
51 See supra Part IV.A.
52 See AS 47.12.120(b)(1) ("[T]he department may petition for
and the court may grant . . . extensions of commitment . . . .").
In contrast, either the court or DFYS can release a juvenile
before his commitment period lapses. Id.
53 721 P.2d 1121 (Alaska 1986).
54 State v. Coon, 974 P.2d 386, 394 (Alaska 1999).
