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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Corrections v. Cowles (12/15/2006) sp-6082
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 | ) Supreme Court No. S- 11352 |
| CORRECTIONS, | ) |
| ) Superior Court No. | |
| Petitioner, | ) 3AN-01-09140 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| EBONY COWLES, | ) No. 6082 - December 15, 2006 |
| ) | |
| Respondent. | ) |
| ) | |
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Sen K. Tan, Judge.
Appearances: Venable Vermont, Jr., Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Petitioner. Charles W. Ray, Jr., Law Offices
of Charles W. Ray, Jr., P.C., and Paul W.
Whelan and Kevin Coluccio, Stritmatter
Kessler Whelan Withey Coluccio, Seattle,
Washington, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
BRYNER, Chief Justice, with whom CARPENETI,
Justice, joins except with regard to the last
paragraph, concurring.
MATTHEWS, Justice, dissenting in part.
I. INTRODUCTION
A parolee murdered his former girlfriend and then shot
himself. The issue before us is whether the State of Alaska may
be held liable in tort for a crime committed by a parolee under
its supervision. The State urges us to overrule our holding in
Division of Corrections v. Neakok that the State owes a duty of
care in supervising its parolees.1 The State also contends that
it is immune from suit and that it is entitled to judgment as a
matter of law on the issue of causation. Because we find that at
least some of the States alleged acts of negligence are shielded
by discretionary function immunity, we vacate the superior courts
order denying the States motion for summary judgment. We
therefore overrule our holding in Neakok that the selection of
conditions of parole are operational activities not entitled to
immunity.2 While we decline to overrule our holding in Neakok
that the State owes a duty of care to the victims of parolees
under its supervision, we emphasize that this duty should be
narrowly construed. Based on the facts of this case, we conclude
that the trial court properly denied summary judgment on the
issue of duty. We remand for a ruling on causation in light of
the superior courts discretionary function immunity rulings.
II. FACTS AND PROCEEDINGS
In September 1991 Calvin McGrew and four others were
driving a jeep that caught fire near the home of Jacqueline and
Donald Boschert on the Parks Highway.3 The Boscherts helped them
put out the fire and allowed the five people into their house to
use the phone. McGrew grabbed Mrs. Boschert and put a knife to
her throat. The group tied the Boscherts up, stole some personal
items, and escaped in the Boscherts Cadillac and Ford pickup
truck.
McGrew pleaded no contest to robbery in the first
degree and other charges. He received a presumptive seven-year
sentence for the robbery charge.4 McGrew was released on
mandatory parole on November 23, 1996 subject to thirteen general
parole conditions and fourteen supplemental conditions.
When McGrew was released from prison, Patricia Beckner
was assigned to serve as his parole officer. As required by
Department of Corrections (DOC) policy, Beckner filled out a risk
assessment form to determine McGrews supervision level.5 Beckner
failed to include McGrews prior juvenile convictions in the
calculation of the risk score. She also incorrectly assigned
McGrew a medium supervision level even though the risk score
total on the form corresponded to a maximum supervision level.
Under DOC policy, medium supervision requires parolees to have
face-to-face contact with the parole officer at least once a
month, while maximum supervision requires twice monthly face-to-
face contact and a field visit at least once every four months.6
DOC policy also required that a risk reassessment be
completed every six months.7 Like her initial risk assessment,
Beckners reassessments were incorrectly scored. Beckner also
filled out a risk reassessment in August 1998 even though McGrew
had absconded from parole at that time and she had not had
contact with him for several months. At the time of the murder,
Beckner had not completed a reassessment form for McGrew in more
than ten months.
Between his release from prison in November 1996 and
March 1998, McGrew appears to have complied with his parole
conditions with the exception of a few missed appointments,
positive urine tests for marijuana, and no shows for urinalysis
appointments. During this time McGrew lived with his girlfriend
Shila Davis or her parents.
McGrew did not appear for urine testing in March 1998
and failed to report to Beckner in April and June 1998. Beckner
learned from McGrews employer that he had been fired for not
showing up. On July 17, 1998, Beckner filed a parole violation
report. A parole board member issued a parole arrest warrant
four days later. When McGrew had not been arrested by November
1998, Beckner put his file in abscond status.
McGrew was arrested on May 13, 1999. A parole board
member conducted a preliminary hearing on May 21, 1999 to
determine if he should remain in custody until his full board
revocation hearing. At the hearing, McGrew admitted to five
parole violations and presented a release plan proposing that he
continue to work, live with Shila Davis, and support his family.
Beckner submitted a letter from Davis asking that McGrew be
released. The letter stated that she and McGrew had been
together for seven years, that they had recently had twin
daughters, and that she needed him at home to help raise their
children. The parole board member released McGrew on May 21,
1999 with the additional condition that he present proof of
employment to Beckner upon request.
On June 8, 1999, Davis filed a petition in the trial
court requesting a protective order. She alleged that McGrew had
abused her and requested that he be barred from contacting her or
coming to her home. On June 13, 1999, Davis called 911 alleging
McGrew had hit her. On July 23, 1999, Davis filed another
petition for a protective order, and the district court granted
an ex parte protective order. The next day, on July 24, 1999,
McGrew shot Davis and himself. One or both of their bodies fell
on their three-month-old twins. One of the twins survived, but
the other suffocated.
At the time of the murder, parole officer Beckner was
unaware that Davis had filed domestic violence petitions against
McGrew or that the couple had separated. Beckner stated in her
affidavit filed in the resulting tort case that while supervising
McGrew between his release after the preliminary hearing in May
and the murder in July, she attached a great deal of significance
to what appeared to be a long-term stable relationship, and the
recent arrival of twins. Beckner further stated: I felt that
Calvins relationship with Shila, and his continued employment,
were good indicators that he might succeed on parole and
afterwards. McGrew had reported to Beckner as scheduled on May
24 and June 21. He did not tell Beckner about the domestic
violence problems. But on his June 21 monthly report form he did
note that he had had contact with the police, stating [t]hey came
to my house to arrest me. In her affidavit, Beckner stated that
she had no current recollection of this entry or any discussion
about it with Calvin, but [she] would have asked him about it and
. . . feel[s] sure that [she] did. She stated that she believed
that the visit from the police was related to ongoing confusion
between McGrew and Darryl Poindexter8 and did not indicate to her
that McGrew had committed new crimes or significant parole
violations. In her deposition, Beckner stated that she
remembered McGrew submitting this report and that she believed
that the police visit was related to the mix-up of identities
between McGrew and Darryl Pointdexter, but she also agreed with
her earlier testimony that she had no specific recollection of
McGrews entry and that the police visit could have been in
response to a domestic violence complaint by Shila Davis. In
response to the June 21 report, Beckner took no action to find
out from the police why they had tried to arrest him. On July
22, 1999, two days before the murder, McGrew failed to report as
scheduled. Beckner took no action in response to the missed
visit.
Ebony Cowles, the personal representative of the Estate
of Shila Davis and guardian of the surviving child, filed suit
against the State Department of Corrections and the Municipality
of Anchorage. The complaint alleges that the State committed
negligence by failing to implement and enforce an appropriate
parole plan, to require appropriate post-release therapy, to
enforce parole violations, to properly supervise McGrew, and to
revoke his parole.
The State moved for summary judgment. The State argued
that our decision in Neakok should be overruled and therefore
that the State owes no duty of care to victims of crimes
committed by parolees. The State also argued that it was immune
from suit and that it was entitled to judgment as a matter of law
on the issue of causation. The superior court denied the motion
for summary judgment. We accepted the States petition for
review.
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.9 We review de novo the existence and extent of a duty
of care.10 Whether a governmental act is entitled to
discretionary function immunity is also a matter of law that is
reviewed de novo.11
We overrule a prior decision of this court 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. 12
IV. DISCUSSION
We addressed in Neakok13 the question whether the State
can be held liable for negligent parole supervision. In that
case, the relatives of three people murdered by a mandatory
parolee sued DOC for negligence, alleging, among other things,
that DOC failed to impose appropriate parole conditions and to
supervise the parolee adequately.14 We held in Neakok that the
State owes a duty of care to a parolees foreseeable victims and
that the State is not immune from suit for negligence in the
selection of parole conditions and the supervision of parolees.15
In this appeal the State asks us to overrule Neakok by finding
that the State owes no duty of care to parolees victims and that
discretionary function immunity applies to all of Cowless claims,
including those alleging negligent imposition of parole
conditions and negligent parole supervision. The State also
argues that it was entitled to judgment as a matter of law on the
issue of causation.
Although we usually determine whether a tort duty
exists before reaching the question of discretionary function
immunity,16 in this case we analyze immunity first because doing
so clarifies the public policy considerations that also bear on
our duty analysis.17
A. Discretionary Function Immunity
Under the Alaska Tort Claims Act, the State is immune
from suit for tort claims based upon the exercise or performance
or the failure to exercise or perform a discretionary function or
duty on the part of a state agency or an employee of the state,
whether or not the discretion involved is abused.18 We have
recognized that the term discretionary in AS 09.50.250 should not
be interpreted broadly to encompass all state actions involving
discretion.19 Instead, we examine each act or function to
determine whether it can be described as planning or operational.20
A planning decision is one that involves policy formulation,
while an operational decision involves the execution or
implementation of a policy already formulated.21 When statutes
and regulations do not require officials to execute a
predetermined policy and instead delegate authority to decide
policy matters, the resulting determinations are planning
decisions.22 Only acts or functions occurring at the planning
level are entitled to immunity as discretionary functions under
AS 09.50.250.23 In this way, discretionary function immunity
ensures that courts do not step into the policy roles committed
to other branches of government.24
The State argues that discretionary function immunity
bars all claims in this suit. Cowles responds that the State is
not immune because parole supervision involves operational acts
rather than planning decisions. We do not determine whether an
entire class of decisions, such as those related to parole
supervision, are entitled to immunity.25 Rather, the allegedly
negligent decisions in a particular case must be examined
individually to determine if they are planning or operational in
nature.26 Cowless complaint alleges that the State and DOC failed
to implement and enforce an appropriate parole plan for McGrew,
to require appropriate post-release therapy, to enforce and
report parole violations, to act in response to McGrews dangerous
behavior, to comply with the statutes, regulations, and
guidelines governing supervision of parolees, and to revoke
McGrews parole. The parties have not systematically addressed
each of these individual allegations in their briefs. We set
forth here the boundaries of discretionary function immunity as
it relates to the decisions involving parole supervision
addressed in Cowless complaint. On remand, the superior court
should make a separate determination for each of Cowless
allegations following the principles announced in this opinion
and in our other decisions concerning discretionary function
immunity.27 The allegations of negligence in Cowless complaint
can be placed into two groups for the purpose of the
discretionary duty analysis: decisions made by the parole board
or its members, and decisions made by McGrews parole officer.
1. Decisions made by the parole board
Some allegations in Cowless complaint appear to refer
to actions or omissions on the part of the parole board. These
include failure to impose appropriate parole conditions, to
require appropriate post-release therapy,28 and to revoke McGrews
parole.29 All of these decisions are protected by discretionary
function immunity. As pointed out in the dissent in Neakok
written by Justice Matthews and joined by Chief Justice
Rabinowitz, decisions regarding conditions of parole are akin to
decisions which a sentencing judge must make in deciding on the
terms of a sentence of probation and are plainly discretionary.30
Determining the appropriate parole conditions upon
release and deciding whether or not to revoke an offenders parole
or whether or not to release an offender pending a revocation
hearing are all planning decisions. They require careful
weighing of policy considerations, including public safety, the
need to rehabilitate and reintegrate offenders, the allocation of
resources available to treat and supervise parolees, and
potential prison overcrowding.31 The purpose of discretionary
function immunity to maintain the separation of powers between
the judiciary and the executive or legislative branches and to
give agencies latitude to perform their policy-making functions
without fear of liability32 dictates that such determinations be
shielded with immunity. We therefore overrule the holding in
Neakok that [f]ormulation of [a] parole plan, and selection of
special [parole] conditions are not planning activities entitled
to immunity.33
In Neakok, our analysis of duty and immunity applied
only to parole officers, not the parole board, because no
reasonable jury could find the board at fault in that case.34 But
the language in Neakok was broad. Because the parole board makes
decisions about parole conditions, Neakok could be read to apply
to the board. We therefore overrule this holding to ensure that
officials are not pressured to err on the side of restrictiveness
when considering discretionary parole.35 We are clearly convinced
that this rule was originally erroneous and that departing from
our holding in Neakok would do more good than harm by preventing
courts from intruding on policy-making activities committed to
other branches of government.36
2. Decisions made by the parole officer
Cowless complaint also alleges that Beckner committed
negligence by failing to enforce and report parole violations, to
comply with the statutes, regulations, and guidelines governing
the supervision of parolees, to act in response to McGrews
dangerous behavior, and to seek to revoke his parole. The
parties dispute whether Beckners acts were discretionary or
operational. In asserting that the State is not entitled to
immunity, Cowles focuses on three allegedly negligent omissions
on the part of Beckner: (1) failure to report parole violations
and seek revocation; (2) failure to follow DOC policies governing
offender classification and supervision standards; and (3)
failure to investigate potential parole violations and ensure
McGrews compliance with the conditions of parole.
Cowles argues that Beckner was required by DOC policy
to respond to McGrews parole violations, and therefore that her
failure to recommend parole revocation was not immune. The State
contends that a parole officers decision to report a parole
violation or to pursue revocation is immune from suit because it
requires judgment and discretion to determine the point at which
counseling, . . . warnings and other means to obtain compliance
with conditions are unsuccessful. The States characterization of
the parole officers function is accurate with respect to the
officers response to minor parole violations, but not serious
violations. DOC Policy 902.14 mandates that an officer shall
file a petition to revoke parole if there is probable cause that
the offender committed a serious violation but is given
discretion whether to initiate revocation action if the offender
commits a minor violation.37 Under the policy, a serious
violation includes all felony behavior, [c]lass A misdemeanor(s),
except in the instance where the supervising probation officers
discretionary authority may denominate the misdemeanor as a minor
violation, and technical violations that constitute a criminal
act or jeopardize the property or safety of another person.38
Minor violations include class B misdemeanors, state or municipal
code violations, and technical parole violations.39
A parole officer therefore has no discretion, and thus
no immunity, in responding to felony behavior or other actions
that jeopardize the property or the safety of another person; in
such cases the officer is simply executing a pre-existing policy.
However, the officer can exercise judgment in deciding whether to
petition to revoke parole where a client commits a minor
violation. The exercise of some discretion does not in itself
confer immunity.40 Nevertheless, when the parole officer is given
a choice, the decision whether or not to seek to revoke parole
involves the same weighing of policy matters that a parole board
engages in when it makes the final parole revocation decision.
Beckner was not aware of a parole violation that required her to
petition to revoke McGrews parole under DOC policy.41 Her
decision not to pursue revocation in response to McGrews
technical violations, including his missed appointment two days
before the murder, is therefore protected by discretionary
function immunity.
Cowless complaint also alleges that Beckner failed to
comply with the regulations and guidelines governing parole
supervision. She argues on appeal that no immunity attaches to
Beckners failure to accurately complete the risk assessments for
McGrew and to follow up on the statement on his monthly report
form that the police had come to his house to arrest him. The
day-to-day supervisory activities of a parole officer, such as
filling out risk assessment scales and investigating the apparent
commission of a serious violation are operational duties not
entitled to immunity. DOC policies mandate that the officer use
the risk assessment scales to assign a supervision level to each
case, and set forth the extent and type of contact required to
supervise offenders based on their risk classification.42
Similarly, DOC Policy 902.14 requires officers to investigate the
charges and circumstances surrounding [a]n offenders arrest for,
or apparent commission of, a serious or minor violation, and to
seek revocation if there is probable cause that the offender
committed a serious violation.43 Discretionary function immunity
does not apply to these activities because a parole officer is
not required to choose between competing policy concerns in
performing these duties, but merely to exercise some judgment in
carrying out established DOC directives.44 This conclusion finds
support in the decisions of other courts that have refused to
apply discretionary function immunity to the day-to-day functions
of probation and parole officers.45 Accordingly, the State is not
immune from suit based on Beckners alleged negligence in filling
out the risk assessment forms. It is unclear whether Beckner was
given notice of the apparent commission of a violation because
there is a question of fact as to what happened at the meeting at
which McGrew gave Beckner the monthly report stating that the
police had come to arrest him and whether, based on that
interaction, Beckner could conclude that the report did not
indicate an apparent commission of a parole violation. Because
this case reaches us from a denial of summary judgment, we must
view all facts in the light most favorable to the non-moving
party. Issues of material fact preclude summary judgment for the
State on this issue.
However, seeking out possible parole violations of
which the parole officer has no notice involves planning
decisions that are entitled to discretionary function immunity.
A parole officer must make policy judgments in deciding how to
allocate time and resources among various clients.46 And the
officer must balance the interests of public safety and
rehabilitation of offenders when deciding how much time to devote
to seeking out potential parole violations as opposed to
assisting clients with housing, rehabilitation, and other needs.47
We follow Justice Matthewss Neakok dissent in declining to impose
liability for an alleged failure to seek out parole violations.48
Accordingly, the State may not be held liable for Beckners
alleged negligence in failing to take affirmative action to
discover parole violations of which she had no notice.
B. Duty
The State contends that it owes no duty of care to the
victims of crimes committed by parolees. It urges us to
overrule our contrary holding in Neakok, arguing that the
reasoning of our decision in Sandsness49 suggests that this part
of Neakok is erroneous.
In Sandsness, a juvenile offender committed murder not
long after he had been released from custody.50 The victims
relatives sued the State for negligence, alleging that the State
knew the juvenile posed a threat and should have asked the court
to extend his commitment.51 We held that the State had no duty to
use due care in deciding whether to extend the commitment of a
juvenile offender.52 We reasoned that imposing such a duty would
conflict with the States goal of rehabilitating juvenile
offenders by causing the State to err on the side of excessive
detention to avoid negligence suits or judgments. 53 The State
argues that the same concerns animate this case. But Sandsness
involved a claim of negligent release, not negligent parole
supervision.54 Unlike the situation in Sandsness, there is no
danger that the prospect of state tort liability will be a factor
in deciding whether to incarcerate an offender. The State is
immune from liability for negligence in the parole boards
decisions concerning parole conditions and parole revocation.
Allowing recovery for a parole officers failure to comply with
DOC policies governing parole supervision does no more than
encourage adherence to those policies, reinforcing rather than
distorting the balance between public safety and rehabilitation
fashioned by the legislature and DOC.
The State points out that in Sandsness we relied on the
Vermont Supreme Court in Sorge v. State55 and argues that we
should adopt the reasoning in Sorge to overrule Neakok. The
Sorge court declined to find a duty in a non-detention juvenile
corrections context because the primary function of probation and
parole is to rehabilitate conduct rather than control it.56 The
reasoning of Sorge was relevant to our holding in Sandsness
because Sandsness was a negligent release case that presented the
danger that imposing liability would result in excessive
detention. But our approach in the present case is equally
protective of the rehabilitative function of supervision programs
as that used in Sorge. Sorge uses a blunt instrument to protect
the rehabilitative goal of parole programs: it declines to
impose liability in any context by refusing to impose a duty to
supervise parolees. We adopt a more targeted approach by
imposing such a duty but using discretionary function immunity to
ensure that the rehabilitative purpose of parole will not be
jeopardized.
Nor are we clearly convinced57 that our determination in
Neakok that the State has a duty to exercise due care in
supervising parolees is erroneous. The proposed final draft of
the Restatement (Third) of Torts includes a comment explicitly
stating that those who supervise parolees, probationers, or
others in prerelease programs . . . are appropriately held to an
affirmative duty of reasonable care.58 Although there is a split
of authority on this question, several courts in other
jurisdictions have imposed a duty of care for the supervision of
parolees.59
At least one court has suggested that before liability
can attach the parole officer must have a special relationship to
the victim or victim class that creates a duty beyond that owed
to the public as a whole.60 The victim class in that case was
defined to include young boys who might have frequent contact
with the offender.61 This approach stems from the importance of
foreseeable harm in the determination of whether to impose a tort
duty.62 In Neakok, we held that a duty of care is owed to victims
who are foreseeable, though not necessarily specifically
identifiable.63 We noted that in that case the victims were
foreseeable as more than simply members of the general public
because they were residents of the isolated community into which
the offender was released, and because one of the victims had
been identified by a prison employee as particularly at risk.64
Forgiving the opinions broad dicta, we read Neakok to impose a
duty only where officials know, or reasonably should know, that a
parolee poses a danger to a particular individual or identifiable
group. Thus, our foreseeability analysis in Neakok is quite
similar to the requirement of a particularized relationship to an
identifiable victim class adopted by some jurisdictions and leads
to similar results. McGrews victims were foreseeable and
identifiable as more than simply members of the general public
because they were members of McGrews household. Similarly, in
the companion case C.J. v. State, Department of Corrections, it
was foreseeable that if not properly supervised, the offender, a
convicted rapist, might rape a woman in the community into which
he was released.65
The dissent in Neakok suggests that a duty should be
imposed only where a parole officer receives notice of imminent
peril, akin to our cases involving the duty of a police officer
to respond to a known life-threatening situation.66 But parole
officers, unlike police officers, have a special relationship to
parolees under their supervision that gives rise to a duty of
care.67 The closest analogy to the Neakok dissents approach is
our decision in Dinsmore-Poff v. Alford, where we held that
parents who know that their child has a tendency towards violence
can be held liable for harm committed by that child only if the
parent had reason to know with some specificity of a present
opportunity and need to restrain the child to prevent some
imminently foreseeable harm.68 But parents are in quite a
different position from parole officers. Parole officers are
trained professionals employed by an agency whose job it is to
formulate supervision policies that promote rehabilitation while
protecting the public from the offenders in its charge. Most
important, unlike parents, the State is immune from liability for
all discretionary planning or policy decisions made by parole
officers; liability will attach only where a parole officer
commits negligence in performing operational functions that
implement DOCs policies.
The dissent suggests that liability for negligent
supervision could lead the State to err on the side of continued
detention to avoid liability.69 But discretionary decisions about
parole release, conditions, and revocations are immune from
liability. Because neither the parole board nor parole officers
are exposed to liability for policy decisions to release, set
conditions, or revoke parole, our decision creates no incentive
for additional confinement. And if the State is concerned about
possible liability from negligent supervision associated with
officers operational duties, adequate training can offer a
mechanism to ensure that officers adhere to department policies.70
We recognize that parole supervision is a difficult job. But we
believe that imposing a duty of care while providing for
discretionary function immunity for policy decisions will protect
the States rehabilitative goals while encouraging parole officers
to carry out their mandated operational duties in a non-negligent
manner.
Nothing in our case law or the cases in other
jurisdictions convinces us that our duty analysis in Neakok is
erroneous. We therefore decline to overrule our holding in
Neakok that the State has an actionable duty of care in
supervising parolees. Our case law has established factors,
commonly referred to as the D.S.W. factors, to determine whether
a duty of care exists.71 But as the State has recognized, we
adhere to precedent without re-applying the D.S.W. factors when
we have already addressed the issue of duty in a closely related
case.72 Neakok squarely addressed the issue of negligent
supervision and established a duty to exercise due care in
supervising parolees. Having found that this holding does not
meet the standard for overturning precedent, we decline to engage
in the dissents analysis of the D.S.W. factors as if Neakok had
not been decided. The State appealed the trial courts denial of
summary judgment on all three asserted independent grounds: duty,
discretionary function immunity, and causation. Even though we
uphold the trial courts denial of summary judgment on the issue
of duty, we are still compelled to examine its ruling on
discretionary function immunity. And as the State argued in its
summary judgment motion, discretionary function immunity
addresses the same public policy issues found in the duty
analysis. Thus, we address many of the same public policy
implications raised by a duty analysis through our discussion of
discretionary function immunity.
We therefore affirm the trial courts ruling on the
issue of duty: there is sufficient evidence to withstand summary
judgment. When viewed in the light most favorable to Cowles, the
record suggests that Beckner knew of the relationship between
Davis and McGrew and knew that the police had come to arrest
McGrew. This evidence raises a genuine issue of material fact as
to whether Beckner knew or reasonably should have known that
McGrew posed a danger to Davis and her family and whether Beckner
breached her duty.
C. Causation
The State argues that even if it breached a duty to
Cowles and is not immune from liability for that breach it is
nevertheless entitled to summary judgment because as a matter of
law its actions did not cause Cowless injuries. Cowles argues
that the issue of causation is a question of fact for the jury.
We have held that negligent conduct may properly be
found to be a legal cause of a plaintiffs injury if the negligent
act was more likely than not a substantial factor in bringing
about (the) injury.73 The substantial factor test is satisfied by
showing both that the [injury] would not have happened but for
the defendants negligence and that the negligent act was so
important in bringing about the injury that reasonable men would
regard it as a cause and attach responsibility to it. 74
The State contends that the connection between its acts
and the murder was too attenuated to establish causation,
particularly since Beckner could not have revoked McGrews parole
without the independent action of the parole board. Our decision
requires the superior court to reexamine whether the State is
entitled to discretionary function immunity for some of its
allegedly negligent acts. That reexamination may affect the
superior courts causation analysis, for Cowles may only rely on
non-immune acts to establish causation. We therefore remand the
case to the superior court for a ruling on causation in light of
its discretionary function immunity rulings. Although Cowless
theory of liability requires an extended chain of causation, we
cannot say that as a matter of law the States alleged negligence
did not cause her injuries. Reasonable jurors could find that
Beckner would have discovered the domestic violence complaints if
she had supervised McGrew properly. They could further find that
this information would have changed Beckners and the parole
boards view of McGrew since, according to her affidavit, Beckner
attached a great deal of significance to what she thought was a
long-term stable relationship with Davis indicating he might
succeed on parole. Reasonable jurors could find that once the
domestic violence problem was known the parole board would likely
have revoked McGrews parole, thereby preventing the murder.
Accordingly, material questions of fact preclude summary judgment
for the State on the issue of causation.
V. CONCLUSION
Because the State is entitled to discretionary function
immunity with respect to at least some of the allegations in the
complaint, we VACATE the superior courts order denying the States
motion for summary judgment. We REMAND for further proceedings
consistent with this opinion.
BRYNER, Chief Justice, with whom CARPENETI, Justice, joins except
with regard to the last paragraph, concurring.
I agree with the courts decision but have reservations
concerning three points addressed in its opinion.
First, I do not believe that it is necessary to
overrule any aspect of Neakok1 in this case. Because any
decision that overturns precedent necessarily erodes the values
of stare decisis, I would use this extraordinary power only upon
a compelling showing that its use is necessary and only when the
point of law to be disavowed is squarely at issue.
As we have consistently recognized in the past, a party
raising a claim controlled by an existing decision bears a heavy
threshold burden of showing compelling reasons for reconsidering
the prior ruling: We will overrule a prior decision only when
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. 2 Here,
the state has failed to meet this burden.3 Although it insists
that Neakok was wrongly decided, the state cites no statistical,
experiential, or authoritative evidence to support this
contention. It simply reargues the points considered in Neakok
in hopes that the current court will disagree with the decision.
This is precisely what the rule of stare decisis seeks to
prevent: The stare decisis doctrine rests on a solid bedrock of
practicality: no judicial system could do societys work if it
eyed each issue afresh in every case that raised it. 4
Moreover, the point overturned by the court is not
squarely raised here. The opinion overrules Neakoks statement
that [f]ormulation of [a] parole plan, and selection of special
[parole] conditions5 are non-immune operational functions.6 As
set out in Neakok, this ruling addressed only a prison counselors
task of establishing a parole plan and a parole officers
authority to set special conditions of parole. Neither of these
functions is at issue here.7
The court nevertheless holds that Neakoks ruling on
this point must be overturned to prevent it from applying to the
parole board.8 Yet Neakok expressly declined to extend its
immunity ruling to the parole board or its members, emphasizing
that parole boards have frequently been afforded quasi-judicial
immunity from liability for their decisions.9 Since, by its own
terms, Neakok did not apply this aspect of its ruling to the
parole boards functions, there is no need to overturn the ruling
in addressing the parole boards immunity here. Although the
court may have well-founded concerns that Neakoks ruling might be
extended to parole board functions in future cases, there is no
need to overrule Neakok to resolve these concerns: the court can
simply hold that Neakoks immunity ruling does not extend to the
parole board.
My second reservation about todays opinion concerns its
discussion of a parole officers discretionary function immunity.
In my view, the courts carefully targeted narrowing of Neakoks
broad language discussing the scope of a parole officers
actionable duty leaves little need to further limit or refine our
already well-defined law addressing discretionary function
immunity. In this respect, while I certainly agree with the
courts view that a mandatory DOC policy provides a sufficient
basis for declaring a parole officers function to be operational,
I am concerned that the opinion might be read to say the
converse, as well that a non-mandatory policy necessarily
suffices to establish a policy planning function.
I do not read the opinion as so holding. The court
correctly recognizes that a DOC policy conferring discretion on
parole officers may often prove determinative by signaling that
the described function actually involves policy and planning.
But a rule intractably declaring that all non-mandatory policies
describe functions that are automatically shielded would run
counter to our well-settled case law10 and could lead to
anomalous results.11
My last reservation about todays opinion concerns its
observation addressing the companion case, C.J. v. State.12
Specifically, applying the narrowed duty analysis adopted here to
C.J., the court states that in C.J. it was foreseeable that if
not properly supervised, the offender, a convicted rapist, might
rape a woman in the community into which he was released.13
Although I have no doubt that this risk was foreseeable, I would
hesitate to conclude that the entire population of a city like
Anchorage constitutes a sufficiently identifiable victim class
for purposes of establishing an actionable duty under Neakok. To
the extent that the courts observation suggests otherwise, I
would rely on the concurring view I express on this point in
C.J.14
MATTHEWS, Justice, dissenting in part.
I agree with the opinion authored by Justice Fabe
insofar as it overrules Division of Corrections v. Neakok1 and
holds that the discretionary function exception immunizes parole
board release and revocation decisions. Similarly, I agree that
discretionary immunity applies to parole officer decisions
concerning conditions of parole and that Neakok must be overruled
on this point as well. I also agree that a parole officer has no
duty to seek out, without notice, possible parole violations, and
I agree that parole officer decisions concerning parole
revocation for minor violations of parole conditions are properly
protected as discretionary. But I think the court should go
further and consider whether Neakok correctly resolved the
question of whether parole officers, and the State, generally
should be subject to tort liability for negligent supervision of
parolees.
In my view this question should be answered in the
negative primarily because parole officers do not have sufficient
control over parolees to be able to control their behavior.
Further, imposing a general tort duty of supervision creates an
incentive for parole officers to choose the most restrictive
alternative available to them and may interfere with
rehabilitative programs. I favor a rule that would subject parole
officers to tort liability only when the officer has notice that
his or her charge presents an imminent danger of harm to a
particular person or class of persons. Such a rule would not be
subject to the above deficiencies and would be consistent with
our recent case law in analogous areas concerning torts involving
the duty to control the actions of others. I discuss these
points in the paragraphs that follow.
NEAKOKS DUTY ANALYSIS SHOULD BE RE-EXAMINED.
The holding in Neakok rested principally on three of
the factors we adopted in D.S.W. v. Fairbanks North Star Borough
School District2 to aid in deciding whether a duty of care for
tort law purposes should exist. According to the Neakok court,
the foreseeability of the harm caused by the States failure to
use due care when supervising parolees, the closeness of the
connection between that failure and the potential harm caused,
and the insignificance of any burden imposed on the State and the
community all weighed in favor of imposing a duty of due care on
the State. I disagreed with the outcome then,3 and in my view
new information shows that the Neakok courts conclusion was
unsound.
Are Criminal Acts a Foreseeable Risk of a Failure to
Use Due Care in Parole Supervision?
Foreseeability is said to be the most important D.S.W.
factor. Neakoks conclusion that the State has a substantial
ability to control the parolee is critical to its determination
that the State can be held liable for the foreseeable harm caused
by negligently supervised parolees.4 However, in practice, a
parole officer has little or no meaningful control over the
conduct of parolees. The facts here illustrate the point. Parole
Officer Beckner is charged with incorrectly assigning McGrew to a
medium instead of maximum supervision level. But even if McGrew
had been subject to maximum supervision, she would have met with
him in her office for a short time only twice monthly and would
have three field visits per year.
Recidivism upon release from prison is, of course,
foreseeable. According to a 2005 study published by the Urban
Institute (Study) fewer than half of parolees successfully
complete their period of parole supervision without violating a
condition of release or committing a new offense, and . . . two-
thirds of all prisoners are rearrested within three years of
release.5 But the foreseeability of recidivism in the abstract
is not the central concern of a duty analysis. The right
question is whether parole supervision at todays levels reduces
recidivism. The Study gives a generally negative answer to this
question. It concludes that the overall effect of supervision
appears to be minimal.6 With respect to violent offenders the
category with which tort law is most concerned the Studys
statistics show that the predicted probability of rearrest within
two years after release is remarkably uniform regardless of
supervision. The rate is fifty-five percent for those who are
released unconditionally, fifty-six percent for mandatory
parolees such as McGrew in this case, and fifty-five percent for
discretionary parolees.7 Concerning offender types, the Study
concludes that only property offenders released to discretionary
parole benefit from supervision. Violent offenders released to
supervision are no less likely to be rearrested than their
unsupervised counterparts.8
The Study also underscores the point that parolee
supervision as it is currently funded and conducted has little
chance to control the conduct of parolees:
Parole supervision is, in fact, quite
minimal in most cases. Most parole
officers manage large caseloads . . .
and typically meet with individuals for
about 15 minutes once or twice a month.
Why would we expect such a small amount
of contact to make a large amount of
difference? Parolees dont: according
to one study of parolees, most report
that their parole officer did not have a
major positive or negative impact on
their postprison behavior. Clearly
parole supervision must be more than
occasional if it is to have an
appreciable effect.[9]
The Study notes that scholars have made a number of
suggestions concerning changes in post-prison programs that might
ultimately prove to be effective.10 But as to parole as it is
currently conducted, the Study concludes that, our reliance on
parole serves little purpose apart from providing false
comfort.11
Reliance on the efficacy of parole is the central
premise of Neakoks duty analysis. The court determined that the
State stands in a special relationship12 to parolees because of
its substantial ability to control the parolee. Given this
special relationship, it is not unreasonable to impose a duty of
care on the state to protect the victims of parolees.13 Because
the main premise of Neakok the substantial ability to control
the parolee is invalid given parole supervision as currently
designed and funded, Neakoks conclusion that this ability leads
to a special relationship giving rise to a tort duty is also
invalid.
Other states have recognized that parole officers do
not have sufficient control of parolees to justify imposing a
tort duty. The Supreme Court of Kansas in Schmidt v. HTG, Inc.
held that parole officers lack sufficient control over parolees
to create a special relationship between the officer and the
parolee under which a duty to control the conduct of the parolee
in tort might arise: A parole officer does not take charge or
exercise control over a parolee so as to . . . impos[e] a duty
upon the State to control the conduct of the parolee to prevent
harm to other persons or property.14 The high courts of
Maryland, South Dakota, and Virginia have held likewise.15
Closeness of the Connection
Another D.S.W. factor mentioned by Neakok is the
closeness of connection between the defendants conduct and the
plaintiffs injury.16 Neakok simply assumed that a parole
officers failure to supervise can be viewed as closely connected
to an injury suffered at the hands of a parolee.17 Yet as the
facts here illustrate, the relationship between a parole officers
allegedly negligent supervision and a parolees criminal acts can
be far from obvious. Todays opinion suggests that Beckners acts
of negligence in supervising McGrew included incorrectly
calculating his risk score so that he was assigned a medium
supervision level rather than a maximum supervision level.18 The
more intensive level of supervision would have meant two monthly
meetings rather than one and a field visit at least once every
four months. These were errors that related to McGrews parole
between his release from prison in November 1996 and July 17,
1998, when Beckner filed a violation report that resulted in the
issuance of an arrest warrant. How close was the connection
between these alleged acts of negligence and the murder that
McGrew committed on July 24, 1999? Given that at the time of the
murder McGrew had been arrested and released by a discretionary
act of a parole board member, and his revocation hearing was
pending, one can characterize the closeness of the connection
between these acts and the murder as either extremely remote or
non-existent.19
I also observe, albeit repetitively because the D.S.W.
factors overlap, that the idea that there is a close connection
between supervision of a parolee and preventing a parolees
criminal activities is also belied by the statistics contained in
the Urban Institute Study referenced above. These statistics
indicate that recidivism is not reduced by parole supervision for
parolees convicted of violent crimes. The Study tells us that
violent offenders who are released and not supervised do not re-
offend at a higher rate than violent offenders who are released
and supervised. In other words, parole as it is currently
practiced and funded has a minimal effect on public safety.
Supervision, whether negligent or not, therefore has little
bearing on whether an offender will commit new crimes. Thus,
again, the idea that the relationship between the supervision of
a parolee and a parolees crimes is close enough to justify tort
liability is, in my opinion, untenable.
Burdens and Consequences
Neakok dismissed the notion that its holding imposed
significant burdens on the State and community by focusing
primarily on the financial impact of tort liability. Potential
financial impact is an important factor given the recidivism rate
of parolees and the frequency of parole violations. But a
potentially more important burden is the effect on the parole
system.
In State v. Sandsness we adopted the Vermont Supreme
Courts reasoning in Sorge v. State that the State owes no duty to
control juvenile offenders that it releases from custody.20 We
accepted the Sorge courts reasoning that because the focus of
juvenile jurisdiction is rehabilitation, the State could not be
liable to third persons harmed by juveniles negligently released
from State rehabilitative programs. The imposition of a duty to
control under tort law in those circumstances would cause the
State to err on the side of detention and thus interfere with the
rehabilitative process.21 Rehabilitation is also an important
function of parole. Therefore, while the facts here are
distinguishable from those in Sandsness and Sorge, the effect on
parole-related programs is similar.
Todays opinion suggests that the rehabilitative
function of parole is preserved because discretionary immunity
shields the State from liability for negligently releasing
parolees from detention.22 But the prospect of being sued for
negligent supervision once a parolee is released may cause the
State to err on the side of continued detention. In addition,
once a parolee is released, either as a matter of discretion, or
as a matter of right, as in this case, the prospect of negligent
supervision liability will have a tendency to cause the State to
err on the side of renewed confinement when violations are
suspected or discovered.
The Sorge court reviewed the authorities that had
rejected liability because of the potential interference that it
could have on post-prison release programs at some length:
Furthermore, this application of the
319 exception to the rule that there is no
common-law duty to control the conduct of
another to protect a third person has been
rejected by jurisdictions 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.
See Davenport v. Community Corrections of
Pikes Peak Region, Inc., 962 P.2d 963, 968
(Colo.1998) (Community corrections . . .
programs designed to . . . reintegrate
incarcerated offenders into society.);
Finnegan v. State,, 138 Vt. 603, 420 A.2d 104
(1980); see also Ruf v. Honolulu Police Dept,
89 Hawaii 315, 972 P.2d 1081, 1093 (1999) (in
declining to apply 319 to alleged negligent
release of prisoner by police, court notes
that risk of liability could pressure police
to err more often on the side of excessive
detention). Thus, for example, parents of a
restaurant employee who was raped and killed
by a coworker, who had been conditionally
released from prison, asserted that 319 of
the Restatement established a duty of care on
the part of the Kansas Department of
Corrections. The Supreme Court of Kansas
found that neither the parole officer nor the
department of corrections had charge of the
individual who committed the assault to the
extent necessary to fall within 319. See
Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d
677, 687 (1998). In rejecting the imposition
of liability upon the State under the
rationale of 319, the court observed:
[An] overbroad
construction . . .
escalates the States
responsibility to that of
the virtual guarantor of
the safety of each and
every one of its citizens
from illegal and unlawful
actions of every parolee
or person released from
custody under any type or
kind of supervision.
Id.; see also Thompson v. County of Alameda,
27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d
728, 735 (1980) (parole and probation release
. . . comprise an integral and continuing
part in our correctional system authorized by
the Legislature, serving the public by
rehabilitating substantial numbers of
offenders and returning them to a productive
position in society.); Whitcombe v. County of
Yolo, 73 Cal. App. 3d 698, 141 Cal. Rptr.
189, 199 (1977) (Were we to find a cause of
action [here] we would in effect be
encouraging the detention of prisoners in
disregard of their rights and societys
needs.); Rivers, 133 Vt. at 14, 328 A.2d at
400 (argument that State should be liable for
harm caused by person on rehabilitative
release for failing to control such persons
runs dangerously parallel to the arguments
for preventative detention).[23]
Based on this review, I do not think that there is a
case to be made that tort liability should be imposed for
negligent supervision of parolees. To summarize, parole
supervision of violent offenders has been shown to be ineffective
in preventing them from committing new crimes. Since parole as
presently conducted is ineffective at controlling the conduct of
parolees, no special relationship giving rise to a tort duty to
control them should arise. Further, it cannot be said that there
is typically a close connection between acts of negligent
supervision and the criminal conduct of parolees.
But two things are clear. First, acts of recidivism
are frequent, and the imposition of tort liability for parole
supervision shortcomings will have a tendency to skew decision-
making concerning parolees in favor of the most restrictive
choice available. Second, the premise on which Neakok based its
conclusion that parole officers have a tort duty to control
parolees that parole supervision is effective in reducing
recidivism in violent offenders was based on an unexamined
assumption that the best information available today shows to be
incorrect. Thus the conditions for overruling a prior decision
of this court are satisfied: A prior decision should be
overruled only if the court is clearly convinced that the
precedent is erroneous or no longer sound because of changed
conditions, and that more good than harm would result from
overturning the case.24
LIABILITY WHERE THERE IS NOTICE OF IMMINENT PERIL.
I do not suggest that parole officers should, in all
circumstances, be immune from tort liability. If a parole
officer has knowledge of a specific threat of imminent harm to a
person or class of persons, the parole officer should have a tort
duty to take appropriate action. Such a rule would bring the
tort duties of parole officers in line with parents and police
officers. A parent, for example, owes a duty to restrain a child
only when there is reason for the parent to know that the child
poses an imminent and foreseeable risk of harm.25 Similarly,
police officers owe a duty of reasonable care . . . to respond to
threats of imminent, life-threatening, assaultive conduct when
given sufficient specific information to respond.26
For these reasons, I respectfully dissent in part from
Justice Fabes opinion.
_______________________________
1 721 P.2d 1121, 1125 (Alaska 1986).
2 See id. at 1134. Our decision in Neakok addressed this
question only in the context of whether a parole officer could be
held liable for decisions regarding selection of parole
conditions because we concluded that no reasonable jury could
find the board at fault in that case. Id. at 1125 n.4. Whether
discretionary function immunity applies to decisions made by the
parole board, such as the selection of parole conditions and
failure to revoke parole, as well as decisions made by the parole
officer, is at issue in this case.
3 Because this case comes to us from a denial of summary
judgment, the statement of facts reflects the respondents version
of the disputed facts. See Gordon v. Alaska Pacific
Bancorporation, 753 P.2d 721, 722 n.1 (Alaska 1988).
4 McGrew also received a consecutive sentence of three
years, with two and one-half years suspended, for escape in the
second degree, as well as suspended sentences for theft and
criminal mischief. He was also ordered to serve three years of
probation following his incarceration.
5 DOC Policy 902.03 (1988). Because both parties cite
the DOC Policy dated July 14, 1988, we assume that this policy
reflects the provisions in force at all relevant times for this
case.
6 Id.
7 Id.
8 According to Beckner, Darryl Poindexter, who had
recently been arrested, had at one time used McGrews
identification card, causing the ongoing confusion about
identity.
9 State, Dept of Health & Soc. Servs. v. Sandsness, 72
P.3d 299, 301 (Alaska 2003).
10 Id.
11 Kiokun v. State, Dept of Pub. Safety, 74 P.3d 209, 212
(Alaska 2003).
12 State v. Coon, 974 P.2d 386, 394 (Alaska 1999) (quoting
State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996)).
13 721 P.2d at 1126.
14 Id. at 1124.
15 Id. at 1125, 1134.
16 See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,
254 (Alaska 2000).
17 Kiokun, 74 P.3d at 213 (proceeding directly to immunity
because that analysis illustrates the public policy issues that
would also bear on a duty analysis).
18 AS 09.50.250(1).
19 Angnabooguk v. State, Dept of Natural Res., 26 P.3d
447, 453 (Alaska 2001) (quoting State, Dept of Transp. & Pub.
Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997)).
20 Id.
21 Id.
22 Cf. Estate of Arrowwood v. State, 894 P.2d 642, 645-46
(Alaska 1995) (holding that officials decision to keep road open
could not be described as merely operational where relevant
statutory and administrative code provisions do not require
officials to act to carry out a predetermined policy and
delegate[] to officials on the scene the authority to act based
on their evaluation of conditions).
23 Id.
24 Kiokun, 74 P.3d at 215.
25 See Angnabooguk, 26 P.3d at 455 (stating that we have
never held that an entire class of decisions . . . are
necessarily bound up with policy considerations).
26 See id. at 458.
27 Cf. id. (declining to decide whether each allegation in
the complaint concerns planning or operational decisions and
instructing superior court on remand to make a separate
determination for each allegation following the principles
announced by the court).
28 The parole board generally imposes the conditions of
parole, including special conditions such as therapy or
treatment. AS 33.16.150. Parole officers may also impose
special conditions of parole. It is unclear whether the
complaint alleges that the parole officer as well as the parole
board failed to impose appropriate parole conditions on McGrew.
Our conclusion that decisions regarding parole conditions are
discretionary applies to decisions made by the parole officer as
well as the parole board.
29 The parole board determines whether to revoke an
offenders parole. AS 33.16.220.
30 721 P.2d at 1137 (Matthews, J., dissenting).
31 Cf. Kiokun, 74 P.3d at 216 (finding that state troopers
decision whether to launch a search and rescue effort was immune
because it was based on resource allocation and public policy
considerations).
32 Estate of Arrowwood v. State, 894 P.2d 642, 645 (Alaska
1995). Discretionary function immunity also ensures that courts
avoid the re-examination of decisions which lie outside the realm
of their institutional competence. Id.
33 721 P.2d at 1134.
34 See id. at 1125 n.4.
35 Sandsness, 72 P.3d at 308 (Matthews, J., dissenting).
36 Cf. Coon, 974 P.2d at 394 (discussing the standard for
overruling a prior decision of this court).
37 DOC Policy 902.14 (1988).
38 Id.
39 Id. The administrative regulation regarding reporting
of parole violations similarly provides that all felony behavior
and any serious misdemeanor behavior indicating that the parolee
is a danger to the public must be reported to the board. 22 AAC
20.350(a)-(b). The regulation further provides that if a parolee
fails to report once, the parole officer may notify the board,
but the parole officer shall notify the board if the parolee
misses two consecutive reporting periods. 22 AAC 20.350(c). In
the case of any other type of parole violation, [r]eporting of
the violation may be held in abeyance in the discretion of the
parole officer. 22 AAC 20.350(d).
40 See Angnabooguk, 26 P.3d at 453.
41 She did, however, have notice that the police had come
to McGrews house to arrest him. We address below whether she had
a duty to investigate based on this information. Cowles argues
that DOC policy required Beckner to file a violation report and
recommend full or partial revocation of parole because some of
McGrews violations involved positive tests for marijuana. As the
State points out, DOC Policy 902.25 only requires a parole
officer to recommend partial or full revocation in response to a
positive test if the parolee also committed one or more serious
violations or is deemed to be a high risk to the community. Use
of marijuana is a class B misdemeanor and therefore does not
qualify as a serious violation. AS 11.71.060; AS 11.71.190.
42 DOC Policy 902.03.
43 DOC Policy 902.14.
44 See Neakok, 721 P.2d at 1134 (noting that parole
officers actions in supervising offenders are ministerial in
nature).
45 See, e.g., Acevedo by Acevedo v. Pima County Adult
Probation Dept, 690 P.2d 38, 41 (Ariz. 1984) (holding that
probation officers who allowed defendant to have contact with
minors in violation of court order could not assert sovereign
immunity); A.L. v. Commonwealth, 521 N.E. 2d 1017, 1024 (Mass.
1988) (A probation officers duty to make reasonable efforts to
ascertain whether a probationer has complied with the terms of
his or her probation is not a discretionary function.); Taggart
v. State, 822 P.2d 243, 252 (Wash. 1992) (holding that
discretionary function immunity does not shield parole
supervision decisions).
46 Cf. Adams v. City of Tenakee Springs, 963 P.2d 1047,
1051 (Alaska 1998) (Decisions about how to allocate scarce
resources are matters of policy immune from judicial review.).
47 Cf. Kiokun, 74 P.3d at 217 (holding that state troopers
decision whether to undertake a search and rescue operation was
immune because it involved balancing of public safety objectives
and the allocation of resources).
48 721 P.2d at 1137 (Matthews, J., dissenting).
49 72 P.3d at 304.
50 Id. at 300.
51 Id.
52 Id.
53 Id. at 304 (quoting Sorge v. State, 762 A.2d 816, 821
(Vt. 2000)).
54 Id. at 301.
55 762 A.2d 816 (Vt. 2000).
56 Id. at 821.
57 Coon, 974 P.2d at 394.
58 Restatement (Third) of Torts 41 cmt. f (Proposed Final
Draft No. 1, 2005).
59 See, e.g., Starkenburg v. State, 934 P.2d 1018, 1028
(Mont. 1997); Faile v. South Carolina Dept of Juvenile Justice,
566 S.E.2d 536 (S.C. 2002); Hertog ex rel. S.A.H. v. City of
Seattle, 979 P.2d 400, 409 (Wash. 1999).
60 A.L. v. Commonwealth, 521 N.E.2d 1017, 1021 (Mass.
1998).
61 Id.
62 Id.; see also Sandsness, 72 P.3d at 305 (stating that
foreseeability is the most important single D.S.W. factor);
D.S.W. v. Fairbanks North Star Borough Sch. Dist., 628 P.2d 554,
555 (Alaska 1981) (noting that foreseeability is a factor in
determining whether to impose a duty of care).
63 721 P.2d at 1129.
64 Id.
65 ___ P.3d ___, Op. No. 6081 (Alaska, December 15, 2006).
66 721 P.2d at 1138 (Matthews, J., dissenting) (citing
City of Kotzebue v. McLean, 702 P.2d 1309 (Alaska 1985)).
67 Restatement (Third) of Torts 41 cmt.f (Proposed Final
Draft No. 1, 2005).
68 972 P.2d 978, 986 (Alaska 1999).
69 Dissent at 40.
70 Cf. City of Kotzebue v. McLean, 702 P.2d 1309, 1315
(Alaska 1985) (reasoning that imposing duty on police officers to
respond to imminent threats was consistent with officers training
and created an incentive for officers to follow their own
policies and procedures).
71 See D.S.W., 628 P.2d 554 (Alaska 1981).
72 Waskey v. Municipality of Anchorage, 909 P.2d 342, 343-
44 (Alaska 1996) (noting that it was unnecessary to resort to the
D.S.W. approach where the court had previously decided two cases
more closely related to this case). We did apply the D.S.W.
factors in Sandsness. 72 P.3d at 305. But there we explicitly
held that Neakok did not control, making applicable the D.S.W.
framework. Id.
73 Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181
(Alaska 1977) (internal quotations omitted).
74 Id. (quoting State v. Abbott, 498 P.2d 712, 727
(Alaska 1972)).
1 State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska
1986).
2 Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937,
943 (Alaska 2004) (quoting State, Commercial Fisheries Entry
Commn v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal
quotations omitted)).
3 In his dissenting opinion, Justice Matthews cites
parole statistics from a recent multi-state study by the Urban
Institute Amy Solomon, Vera Kachnowski & Avinash Bhati, Does
Parole Work? (Urban Institute, March 2005) (hereinafter study)
as a basis to argue that Neakok should be overruled because
statistical evidence now disproves Neakoks main premise that
parole officers have a substantial ability to control the
parolee. Dissent at 37. But the studys statistics do not
support the dissents theory. The study which, incidentally,
excluded Alaska compiled data from fifteen different systems
without taking into account variations potentially attributable
to funding, staffing, training, or types of supervision within or
among the systems studied. Based on these statistics, the study
merely compared rearrest rates for prisoners released with and
without supervision in the selected locations. As its title
suggests, the study was designed as a descriptive measure, not a
predictive one: it merely asked Does Parole Work as it currently
exists not Could Parole Work in a better-run system. Moreover,
because the study did not consider whether the states it studied
imposed civil liability for negligent parole supervision, its
findings shed no light on whether or how civil liability might
affect parole officers supervision of their parolees. Last, and
most notably, the authors of the study expressly acknowledged
these limitations, warning the studys readers that its
statistical findings could not support sweeping generalizations
like the dissent makes here:
It bears repeating that the nature of
our analysis does not allow for insights into
whether certain types of supervision, such as
neighborhood-based or case management models,
are more effective than others or whether
there are differences in outcomes across
states. It is also unclear how much rearrest
outcomes are the result of policy directives
(e.g., a decision to watch more closely and
arrest more quickly) and not criminal
activity alone.
Study at 15.
4 Thomas, 102 P.3d at 943 (quoting Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992)).
5 Neakok, 721 P.2d at 1134.
6 Slip Op. at 12.
7 There is no hint of any claim against prison counselors
here, nor is there any claim that McGrews parole officer,
Beckner, had any authority to set special conditions of parole.
Notably, under current law, parole officers have no authority to
set special conditions of parole unless the authority has been
actually delegated by the parole board or a board member. AS
33.16.150(c).
8 Slip Op. at 12.
9 Neakok, 721 P.2d at 1133 n.19 (citations omitted).
10 See, e.g., State v. Abbott, 498 P.2d 712, 720-22
(Alaska 1972).
11 Specifically, a rule that inflexibly viewed all non-
mandatory policies as describing immunized functions would leave
the department in charge of its own immunity by allowing it to
make all policies non-mandatory, thereby converting all functions
performed by parole officers, even driving a nail, id., into
planning and policy decisions.
12 C.J. v. State, Dept of Corr., ___ P.3d ___, Op. No.
6081 (Alaska, December 15, 2006).
13 Slip Op. at 20-21.
14 C.J., ___ P.3d ___, Op. No. 6081 at 24-25.
1 721 P.2d 1121 (Alaska 1986).
2 628 P.2d 554 (Alaska 1981).
3 Neakok, 721 P.2d at 1137 (Matthews, J., dissenting).
4 Id. at 1126.
5 Amy L. Solomon et al., Does Parole Work? Urban
Institute, 1 (2005), available at
http://www.urban.org/UploadedPDF/311156_Does_Parole_Work.pdf.
The purpose of this study was to assess, at an aggregate level,
whether parole works at reducing recidivism among those who are
supervised after release from state prison. Id. at 1.
6 Id. at 15.
7 Id. at 10, table 3.
8 Id. at 2. I set out here in full the Research
Highlights of the Study:
Overall, parole supervision has little
effect on rearrest rates of released
prisoners. Mandatory parolees, who
account for the largest share of
released prisoners, fare no better on
supervision than similar prisoners
released without supervision. In fact,
in some cases they fare worse. While
discretionary parolees are less likely
to be rearrested, this difference
narrows (to 4 percentage points) after
taking into account personal
characteristics and criminal histories.
Certain prisoners benefit more from
supervisionespecially discretionary
release to supervisionthan others. For
example, females, individuals with few
prior arrests, public order offenders,
and technical violators are less likely
to be rearrested if supervised after
prison. Persons with a combination of
these characteristics, representing
relatively low-level offenders, exhibit
even lower rearrest rates if supervised.
Conversely, supervision does not improve
rearrest outcomes for some of the higher
rate, more serious offenders.
Of the largest groups of released
prisonersmale drug, property, and
violent offendersonly property offenders
released to discretionary parole benefit
from supervision. Violent offenders
released to supervision are no less
likely to be rearrested than their
unsupervised counterparts. For male
drug offenders, mandatory release to
supervision predicts higher rearrest
rates than for unconditional releasees
or discretionary parolees.
Id. at 1-2 (emphasis added).
9 Id. at 16 (footnotes omitted). The description in this
paragraph of the typical level of parole supervision squares with
Alaska parole supervision as currently established. See infra
page 38 (Maximum supervision entails two monthly meetings and a
field visit once every four months.).
10 Id. at 16-17
11 Id. at 17. Chief Justice Bryner criticizes my reliance
on the Study. He suggests that the Study is merely descriptive
of the effectiveness of parole in the locations studied and does
not show that parole could not be effective in better run
systems. Further, he claims that the data relied upon by the
Study is too limited to be relied on in Alaska since it is based
on statistics from only fifteen states, not including Alaska. He
also argues that the limitations inherent in the Study mean that
generalizations about the ineffectiveness of parole supervision
cannot be drawn. With respect to this point he quotes a caution
set out in the Study relating to certain types of supervision.
Slip Op. at 26-27 note 3 (Concurring Opinion of Chief Justice
Bryner).
My response to these points follows. The Study clearly
concludes that supervised parole as it is traditionally practiced
in the United States with respect to violent offenders is
ineffective at reducing recidivism rates. The recidivism rates
for violent offenders who are subject to supervision are, at
best, only equal to the rates for violent offenders who are not
subject to supervised parole. They are not lower as might be
expected. The Study, of course, does not attempt to isolate any
role that negligent supervision might have on outcomes. But
unless we are to assume that all, or nearly all, of the
supervision reflected in the Study was negligent, the Study does
indicate that non-negligent supervision does not produce better
results than no supervision at all. Otherwise, a reduction in
recidivism rates would be reflected.
It is of course possible that if parole supervision
programs were designed differently, or if substantially more
money were committed to parole supervision, outcomes might
improve. But in deciding duty questions for tort law purposes we
must look at programs as they exist and ask whether it makes
sense to impose tort law liability for program failures. For
example, in D.S.W. the question was whether there should be a
tort duty imposed on public schools to recognize and treat
learning disabilities. We held that there should not be such a
duty, citing, among other reasons, the numerous social and
financial problems with which the public schools are beset. 628
P.2d at 556. If there is one thing clear in this case, it is
that decisions as to the design and funding level of parole
supervision are not reviewable in tort. Thus, the fact that
different programs might be effective cannot be the basis for
imposing liability for the shortcomings of the current program.
Chief Justice Bryners criticism that the database used
by the Study results from fifteen states is too limited, is
also unwarranted. Slip Op. at 26-27 note 3. The scholars who
conducted the Study thought the data was sufficient to draw the
conclusions that they reached, and the focus of the Study was on
national-level trends. Study at 14.
Chief Justice Bryners point that the Study does not
support the generalizations that I have relied on in this dissent
also lacks validity. The generalizations that I rely on are
those that the authors of the Study have made. Specifically, the
Study states: Mandatory parolees, who account for the largest
share of released prisoners, fare no better on supervision than
similar prisoners released without supervision. Study at 1.
Violent offenders released to supervision are no less likely to
be rearrested than their unsupervised counterparts. Id. at 2.
With respect to the language that Chief Justice Bryner quotes,
the scholarly caution reflected there does not, in the view of
the authors, undermine their overall conclusion. Indeed, the
sentence immediately following the language quoted by the Chief
Justice states: At the same time, given our countrys heavy
reliance on parole to manage those released from prison, it is
discouragingalthough not wholly unexpectedto find that the
overall effect of supervision appears to be minimal. Id. at 15.
12 That is, a relationship giving rise to a duty to
control the conduct of a third person. See Restatement (Second)
of Torts 315(a) (1965).
13 Neakok, 721 P.2d at 1126-27 (emphasis added).
14 961 P.2d 677, 679 (Kan. 1998).
15 Lamb v. Hopkins, 492 A.2d 1297, 1304 (Md. 1985); Small
v. McKennan Hosp., 403 N.W.2d 410, 414 (S.D. 1987); Fox v.
Custis, 372 S.E.2d 373, 376 (Va. 1988).
16 721 P.2d at 1125.
17 Id. at 1129.
18 Slip Op. at 13, 15-16 (Opinion of Justice Fabe).
19 Further, as the facts of the companion to this case,
C.J. v. State, ___ P.3d ___, Op. No. 6081 (Alaska, December 15,
2006), indicate, issuing a parole violation report and an arrest
warrant may not suffice to prevent a parolee from committing new
crimes.
20 State v. Sandsness, 72 P.2d 299, 302-03 (Alaska 2003)
(citing Sorge v. State, 762 A.2d 816 (Vt. 2000)).
21 Id. at 302.
22 Slip Op. at 22 (Opinion of Justice Fabe).
23 762 A.2d at 820-21.
24 Kinegak v. State, Dept of Corrections, 129 P.3d 887,
889-90 (Alaska 2006).
25 Dinsmore-Poff v. Alvord, 972 P.2d 978, 986 (Alaska
1999) (holding that a parents tort duty to restrain child exists
only where the parent ha[s] reason to know with some specificity
of a present opportunity and need to restrain the child to
prevent some imminently foreseeable harm).
26 Dore v. City of Fairbanks, 31 P.3d 788, 795 (Alaska
2001) (discussing the meaning of City of Kotzebue v. McLean, 702
P.2d 1309 (Alaska 1985)).
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