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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Deanna Smith v. State of Alaska, Department of Corrections (2/21/2025) sp-7750
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
DEANNA SMITH, )
) Supreme Court No. S-18340
Appellant, )
) Superior Court No. 3AN-18-04293 CI
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF CORRECTIONS, ) No. 7750 - February 21, 2025
)
Appellee. )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Eric Croft, The Croft Law Office, Anchorage,
for Appellant. Mark Cucci, Chief Assistant Attorney
General, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for Appellee.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
MAASSEN, Chief Justice.
INTRODUCTION
A man on probation was subject to a domestic violence protective order
(DVPO) that required him to give a day's notice to security personnel whenever he
needed to visit the medical center where his former girlfriend worked. The woman
alleges that the man violated this notice provision many times over a three-year period
by coming to her workplace unannounced or with insufficient notice. The man's
----------------------- Page 2-----------------------
probation officer investigated the alleged violations that were brought to her attention,
but she decided not to revoke the man's probation or otherwise penalize him.
The woman brought suit against the probation officer and the Alaska
Department of Corrections (DOC) for their allegedly negligent supervision, claiming
that the man's repeated violations of the DVPO caused her severe emotional distress
and ultimately cost her her job. The superior court granted summary judgment for the
State, determining that there were no genuine issues of material fact, that the probation
officer fulfilled her duty of reasonable care, and that her actions were also shielded by
discretionary function immunity. The woman appealed.
We conclude that there is no genuine issue of material fact to preclude
summary judgment for the State on whether the probation officer fulfilled her
operational duty to investigate the alleged violations that were brought to her attention.
We further conclude that the probation officer's subsequent decisions were of the sort
committed to executive branch employees and thus shielded from suit by discretionary
function immunity. Agreeing with the superior court, we affirm its grant of summary
judgment.
FACTS AND PROCEEDINGS
A. Facts
1. Initial assault and Smith's domestic violence protective orders
against Harrison
Kosmos Harrison and Deanna Smith were in a romantic relationship and
have a child together. In December 2012 Harrison violently assaulted Smith, seriously
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7750
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1
injuring her.
He was convicted of second-degree assault and sentenced to eight years'
2
imprisonment with six years suspended.
Smith was granted an ex parte DVPO the day after the assault, then long-
term DVPOs that were either issued or extended year to year through 2016. In 2013,
while Harrison was still incarcerated, Smith began working for Southcentral
Foundation (Southcentral), located in Anchorage on the Alaska Native Health Campus
that includes the Alaska Native Medical Center (ANMC).
In April 2014 Harrison was released from prison, on both mandatory
3 His probation conditions required, among other
parole and probation conditions.
things, that he "[c]omply with all municipal, state and federal laws" and that he "[a]bide
by any special instructions given by the court or any of its duly authorized officers,
1
See Harrison v. State, No. A-11849, 2017 WL 5186308, at *1 (Alaska
App. Nov. 8, 2017). During the incident Harrison "grabbed Smith's arm and twisted it
behind her back," "grabbed her by the hair and slammed her head against the kitchen
cabinet and countertop," and forced food and a dishrag into her mouth. Id. Their child
was awake in the home during the assault. Id. "Smith was taken to the hospital, where
she was treated for injuries to her head, face, neck, shoulder, arm, and hand. Later,
when Smith took a shower, clumps of her hair came out. Smith eventually required
surgery to repair the injury to her shoulder." Id.
2
Id. at *2.
3
The State conduct at issue here occurred while Harrison was on probation,
his period of mandatory parole having expired in December 2014. We recognize that
there are "prominent and significant" differences between probation and parole. State
v. Staael, 807 P.2d 513, 517 & n.5 (Alaska App. 1991). But the duties of probation and
parole officers do not differ in any way meaningful to our analysis. See, e.g., State v.
Howard, 357 P.3d 1207, 1209 (Alaska App. 2015) (observing that although defendant
"faced different consequences for violating his parole and probation, the same person
served as his parole and probation officer, and that person was simultaneously tasked
with overseeing [the defendant's] compliance with both his parole and probation
conditions" (first citing AS 33.05.045(5) (providing that probation officer supervising
parolees is deemed parole officer); and then citing AS 33.16.190 (providing that person
appointed as probation officer or parole officer may discharge duties of either office))).
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including probation officers of the Department of Corrections." In the years to follow
Harrison had a number of probation officers, but the one relevant to this appeal is Eileen
Farrar, who supervised him in 2015 and 2016.
A few weeks after Harrison's release from prison, Smith saw his car
parked next to hers on the medical campus. Both Harrison and his mother were entitled
to receive treatment at ANMC, but Harrison denied knowing that Smith worked on the
medical campus, as the DVPO then in effect showed her working at a medical office in
another part of town. The superior court accordingly modified the DVPO in August
2014, adding the provision that "Harrison is required to notify security at least one day
in advance of any non-emergency or scheduled medical care he has on the Medical
Campus," and defining "Medical Campus" as "Southcentral Foundation including the
Alaska Native Medical Center or Hospital." When the DVPO was issued for another
year on December 31, 2014, it contained a nearly identical provision: "Harrison is
required to notify security of Southcentral Foundation at least one day in advance of
any non-emergency or scheduled medical care he has on the Alaska Native Medical
4
The DVPO also required
Campus; or if he will be escorting his mother on campus."
Harrison to "authorize Southcentral Foundation and Alaska Native Medical Campus to
notify Deanna Smith when . . . he will be on campus either for his own appointment or
5
to escort his mother." The order extending the DVPO through 2016 had the same
provisions.
4
Smith characterizes the DVPO's requirement of notice "at least one day
in advance" as a requirement of at least 24 hours' notice, as opposed to simply notice
the day before. Interpreting the language one way or the other is not necessary to our
decision.
5 The record does not indicate whether Harrison ever provided the required
authorization, as Southcentral's security officers testified that they were unsure what
information about Harrison's medical appointments they could disclose to Smith
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The chronological notes compiled by Harrison's parole and probation
officers acknowledge his dangerous history, including not just the underlying crime but
also threats he made against Smith shortly after his release from prison in April 2014.
The notes also reflect the officers' periodic instruction to Harrison over the ensuing
years that he was to inform them, as well as Southcentral security, "prior to" or "the
6
According to Farrar, her
day before" going to the medical campus for any reason.
requirement was that Harrison give her prior notice: "He doesn't have to give me a
day's notice. He could have e-mailed me the same day. . . . The day's notice only
applied to ANMC."
2. Harrison's visits to the medical campus and Smith's allegations
of DVPO violations
Smith alleges that Harrison violated the DVPO's notice provision a
number of times by failing to provide 24 hours' notice to Southcentral security before
coming to the medical campus. She alleges that Harrison violated the DVPO at least
7
20 times, with a particularly "intense period in April and May 2016."
without violating federal law. See Health Insurance Portability and Accountability Act
(HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered
sections of 18, 26, 29, and 42 U.S.C.); Harrold-Jones v. Drury , 422 P.3d 568, 570-73
(Alaska 2018) (summarizing HIPAA's protective scope and exceptions).
6 See, e.g., June 16, 2014 entry: "D[efendant] reminded he needs to contact
PO prior to going to ANMC, stay in the area of his [appointment], and provide
documentation"; September 9, 2014 entry: "PO instructed this defendant that if he
needed to go to ANMC, he is to call the day before he goes to notify PO"; March 16,
2016 entry: "[Defendant] will continue to coordinate with security and assigned PO
when he will be on the [medical] campus."
7 This time period is the focus of Smith's briefing on appeal. Other than
the three incidents in 2015 and 2016 discussed below, the only allegations that involve
Harrison's visits to the medical campus were in April, May, and November 2014, April
2015, and February 2016. The 2014 allegations precede the amendment of the long-
term DVPO to add the requirement of prior notice to Southcentral and Farrar's
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Smith's focus is on three incidents in 2015 and 2016 when the Anchorage
Police Department (APD) became involved. She alleges that in January 2015 she saw
Harrison in the lobby of one of the medical campus buildings, "was terrified," and
called APD. Southcentral security confirmed that it had not received notice of a visit
that day, and APD contacted Harrison's then-probation officer to ask about the DVPO's
conditions. The probation officer's notes reflect that she called Harrison in the next
day, and he denied having been at the medical campus. The probation officer instructed
him "that he needs to keep a log of anytime he enters the hospital for any reason," and
he gave her the dates of upcoming visits. The officer's notes also reflect that APD was
"going to check the video tapes to see if the defendant entered the hospital"; the police
ultimately did not pursue charges.
Smith next alleges that Harrison gave insufficient notice to Southcentral
on March 30, 2016, notifying security at approximately 10:00 a.m. that he would be on
campus later that day for a 2:30 p.m. appointment. APD was called the next day and
investigated the incident. According to the police report, Farrar, who had assumed
responsibility for Harrison's case the previous January, informed APD that Harrison
"contacts her via email or phone when he or his mother have appointments at the
medical campus" and "that she received two emails from him about the appointment on
3/30/2016 and in the email he informed her that he had called security and notified them
8
of the appointment." Ultimately, the investigating APD officer "was unable to verify
that the violation [of the DVPO] had actually taken place," and he was advised by the
appointment as Harrison's probation officer. There is no evidence Farrar was informed
of either the April 2015 incident (when Smith "witnessed Harrison's vehicle again
parked next to hers at her workplace") or the February 2016 incident (when Smith
"encountered Harrison's mother, whom he had been escorting to appointments, at her
workplace").
8
Our record contains only one email from Harrison to Farrar before the
appointment, but there is also a follow-up email from Harrison the day after.
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municipal prosecutor's office that "without an admission from [Harrison,] [there] was
not sufficient evidence to charge him." Farrar's own notes reflect that she spoke to the
investigating APD officer on April 1, and "with investigation it does NOT appear the
def[endant] violated any part of the DV[P]O." She concluded: "From what information
has been given so far the def[endant] is in compliance."
The next incident Smith points to occurred several days later, on April 4,
when she received notice at approximately 10:00 a.m. of Harrison's 11:00 a.m. medical
appointment. Smith called APD to report this as a violation of the DVPO, and two
officers responded. As part of their investigation, the APD officers interviewed
Southcentral security as well as Harrison. The police officers also spoke with an
assistant district attorney, who advised them that he believed Harrison was following
the DVPO and should not be arrested. Once again APD "did not find any crimes had
been committed."
Harrison emailed Farrar to inform her of this contact with APD. The next
day Farrar called the assistant district attorney herself to discuss the police reports on
the March 30 and April 4 incidents; her notes reflect her conclusion that "there is still
no crime or violation of the DV[P]O or probation conditions." But Farrar did reiterate
in her case notes that Harrison "will still need to email or call [his probation officer]
about his or his mother['s] medical [appointments] at ANMC; as well as notify ANMC
security."
In March 2016 Smith applied for leave under the Family and Medical
Leave Act due to the strains on her mental health, and by May her "symptoms were
such that she could no longer function at work." The parties agree that Harrison filed a
pro se request for early termination of his probation in late 2016, that Farrar
recommended early termination, and that Smith opposed it; they also agree that an April
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9
2017 search of Harrison's residence found items prohibited by his terms of release and
that a probation officer filed a petition to revoke Harrison's probation the day after the
search.
B. Proceedings
Smith filed suit in January 2018 against Farrar and DOC, alleging that
both were negligent in their supervision of Harrison and that DOC was negligent in its
10
Smith alleged that Farrar and the State breached their duties of
supervision of Farrar.
care by "failing to appropriately supervise Harrison, failing to investigate his parole
violations, failing to search his residence, and failing to follow Department of
Corrections policies governing supervision of parolees." She alleged that these
breaches of duty caused her such severe emotional distress that she had to seek mental
health treatment and was eventually unable to work, losing her job at Southcentral as a
result.
The State moved for summary judgment. It argued that it did not breach
its duty of reasonable care in its supervision of Harrison because Farrar never had
probable cause to believe he had committed a "serious violation" of his probation
conditions that would require her to initiate revocation proceedings. The State also
argued that regardless of whether it satisfied its duty of care, Smith's suit was barred by
discretionary function immunity.
Smith opposed the motion, arguing that there were factual disputes over
whether Farrar had adequately investigated each alleged violation and whether she had
9
These included a crossbow and arrows, a bottle of beer, and a urinalysis
test strip.
10
The State was later substituted as a defendant with regard to the claims
against Farrar. See AS 09.50.253(c) (allowing substitution upon attorney general's
certification "that the state employee was acting within the scope of the employee's
office or employment at the time of the incident out of which the claim arose").
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----------------------- Page 9-----------------------
probable cause to believe a serious violation had occurred. Smith argued that Farrar's
actions were not entitled to immunity because Harrison's repeated visits to the medical
campus with inadequate notice necessarily amounted to a "serious violation" of his
probation conditions, and a probation officer has a nondiscretionary duty to revoke
probation for a "serious violation."
The court granted summary judgment for the State, concluding that Farrar
had fulfilled her duty of care. The court discussed discretionary function immunity
only briefly, stating that "the evidence supports the [State's] contention that [Farrar]
maintained the discretion to act in the way [she] chose, thus discretional [sic] immunity
11
[applies.]" The court entered judgment against Smith and awarded attorney's fees to
the State under Alaska Civil Rule 82. Smith appeals.
STANDARD OF REVIEW
"We review a grant of summary judgment de novo, applying our
independent judgment and adopting the rule 'that is most persuasive in light of
12
precedent, reason, and policy.' " "Summary judgment 'is affirmed if the evidence in
the record fails to disclose a genuine issue of material fact and the moving party is
13
"When making this determination, we draw
entitled to judgment as a matter of law.' "
14
all reasonable inferences in favor of the non-moving party."
11
Smith filed a motion for reconsideration which the court did not address
and which was therefore deemed denied. Alaska R. Civ. P. 77(k)(4).
12 Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007) (first citing Charles v.
Interior Reg 'l Hous. Auth., 55 P.3d 57, 59 (Alaska 2002); and then quoting Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979)).
13
Id. (quoting Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369
(Alaska 1993), overruled on other grounds by Buntin v. Schlumberger Tech. Corp., 487
P.3d 595 (Alaska 2021)); see also Alaska R. Civ. P. 56(c).
14
Moore v. Hartley Motors, Inc. , 36 P.3d 628, 630 (Alaska 2001) (quoting
Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska 1998)).
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----------------------- Page 10-----------------------
"[T]he existence and extent of a duty of care" and "[w]hether a
governmental act is entitled to discretionary function immunity" are also matters of law
15 16
reviewed de novo, as is the existence or absence of probable cause.
DISCUSSION
A. Our Decisions In Neakok And Cowles Direct The Outcome Of This
Case.
We addressed the State's liability for its officers' negligent supervision of
17
parolees in two cases, Division of Corrections v. Neakok and State, Department of
18
Corrections v. Cowles. In Neakok and Cowles we discussed both the scope of the
parole officers' duty19 20
and the applicability of statutory immunity, and the two cases
21
direct our decision here.
Neakok involved a claim against the State by relatives of three persons
murdered by a man who was on supervised mandatory parole after serving time for rape
22
and assault. The plaintiffs claimed that the State was negligent for "failing to impose
special conditions of release at the time of [the parolee's] release, to supervise [the
15
State, Dep't of Corr. v. Cowles, 151 P.3d 353, 358 (Alaska 2006).
16
Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) ("Once the
historical facts have been established, the existence or absence of probable cause is 'a
purely legal question ' that we review de novo." (quoting In re J.A., 962 P.2d 173, 175
(Alaska 1998))).
17
721 P.2d 1121, 1125-37 (Alaska 1986), overruled in part by Cowles, 151
P.3d at 360.
18
151 P.3d at 358-65.
19
Neakok, 721 P.2d at 1125-32; Cowles, 151 P.3d at 362-65.
20
Neakok, 721 P.2d at 1132-35; Cowles, 151 P.3d at 358-62.
21
Because Neakok and Cowles were parolees, these cases necessarily refer
to parole. But as discussed at note 3, supra, the duties of probation and parole officers
do not differ in any way meaningful to our analysis.
22
Neakok, 721 P.2d at 1123.
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parolee] adequately while he was on parole, in allowing him to return to a small, isolated
community without police officers or alcohol counseling[,] and in failing to warn his
23
victims of his dangerous propensities."
First addressing whether the State owed a duty to the parolee's victims,
we considered the so-called "D.S.W. factors"24 for determining the existence of such a
duty, concluding that the most important factor was foreseeability.25 We held that the
State's long history with the parolee as a prisoner and its authority over him as a parolee
meant that there was "a special relationship" between them, "both because of [the
State's] increased ability to foresee the dangers the parolee poses and because of its
26 We continued: "Given this special
substantial ability to control the parolee."
relationship, it is not unreasonable to impose a duty of care on the [S]tate to protect the
27 And the victims in Neakok - one of the parolee's
victims of parolees."
stepdaughters, her boyfriend, and her aunt - were reasonably foreseeable given the
parolee's history of violence toward family members and the fact that "[a]ll three were
residents of an isolated community of fewer than 100 residents into which [the parolee]
28
was released." Whether the State breached its duty of care to these victims "by failing
23
Id.
24
Id. at 1125 (describing factors adopted in D.S.W. v. Fairbanks N. Star
Borough Sc h. Dist., 628 P.2d 554, 555 (Alaska 1981), which "include foreseeability of
harm, 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, the extent of the burden to the defendant and consequences to the
community of imposing a duty of care, and the availability, cost and prevalence of
insurance for the risk involved").
25
Id.
26
Id. at 1126.
27
Id. at 1126-27.
28
Id. at 1128-29.
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to supervise [the parolee] more closely, to impose special conditions of parole, to warn
the residents of [his community] of his dangerous propensities, or to take other
29
protective measures" remained a question of fact for a jury to decide.
We then considered whether the State in Neakok was nonetheless entitled
to "discretionary function" immunity under AS 09.50.250.30 This statute provides that
no one may bring a tort action against the State "based upon the exercise or failure to
exercise or perform a discretionary function or duty on the part of a state agency or an
31 We applied
employee of the state, whether or not the discretion involved is abused."
the "planning-operational test" to determine whether the State actions at issue were
immune: "Under this planning-operational test, only decisions that rise to the level of
basic planning or policy formulation will be considered discretionary; decisions that
implement policy decisions and are ministerial or operational in nature will not be
32 We decided that the plaintiffs' claims against the State were "based
immune."
primarily on day-to-day acts of corrections personnel" that were operational rather than
policy-making: formulating a parole plan (to include the selection of special conditions
regarding alcohol consumption, rehabilitation programs, and residence); supervising
the defendant; and "deciding not to appoint a parole liaison advisor, not to inform
appropriate people in the small community . . . of [the defendant's] parole status, and
not to warn his stepdaughter and other potential victims of his dangerous
33 We held that these sorts of decisions by parole officers "took place 'at
propensities."
29
Id. at 1132.
30
Id. at 1132-35.
31
Id. at 1132 (quoting former AS 09.50.250(1) (1965)). While this statute
has been amended since Neakok, the relevant language remains the same.
AS 09.50.250(1).
32
Neakok, 721 P.2d at 1133.
33
Id. at 1133-34.
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34
the lowest, ministerial rung of official action,' and cannot be immunized." It was
therefore up to the jury to determine whether the decisions were negligent: "If these
decisions were made reasonably and carefully, the [S]tate will not be held liable even
35
if, in retrospect, an alternative decision may have averted the murders."
36
We considerably narrowed Neakok 's holding 20 years later in Cowles.
That case involved a defendant released on mandatory parole who killed himself and
37
his girlfriend while still under parole supervision. The girlfriend's personal
representative sued DOC for "negligence by failing to implement and enforce an
appropriate parole plan, to require appropriate post-release therapy, to enforce parole
38
The State
violations, to properly supervise [the parolee], and to revoke his parole."
moved for summary judgment, urging that "Neakok should be overruled and therefore
39
The
that the State owes no duty of care to victims of crimes committed by parolees."
40
superior court denied the motion, and we accepted the State's petition for review.
We declined to overrule Neakok 's holding "that the State has an actionable
41
duty of care in supervising parolees." Acknowledging the significant policy concerns
that militate against such a duty - for example, that it "could lead the State to err on
34
Id. (internal citations omitted) (quoting Tarasoff v. Regents of the Univ. of
Cal., 551 P.2d 334, 350 (Cal. 1976), superseded by statute, Cal. Civ. Code § 43.92, as
recognized in Shalghoun v. N. L.A. Cnty. Reg 'l Ctr., Inc., 317 Cal. Rptr. 3d 641 (Cal.
App. 2024).
35
Id. at 1135.
36
151 P.3d 353 (Alaska 2006).
37
Id. at 356-57.
38
Id. at 357.
39
Id.
40
Id.
41
Id. at 364.
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----------------------- Page 14-----------------------
the side of continued detention to avoid liability" - we concluded that the availability
of "discretionary function immunity for policy decisions will protect the State's
rehabilitative goals while encouraging parole officers to carry out their mandated
42
operational duties in a non-negligent manner."
On the subject of discretionary function immunity, however, we decided
that Neakok had gone too far, specifically in ruling that " '[f]ormulation of [a] parole
plan, and selection of special [parole] conditions' are not planning activities entitled to
43 Citing DOC policies, we concluded that parole officers had no discretion,
immunity."
"and thus no immunity," when faced with probable cause that the defendant has
committed a "serious violation," a term encompassing felonies, class A misdemeanors,
and "technical violations that constitute a criminal act or jeopardize the property or
44 But parole officers did retain discretion to decide whether
safety of another person."
certain misdemeanors or technical violations should instead be classified as "minor
violations" that did not justify the revocation of parole, because the decision whether to
revoke parole involved the weighing of such policy considerations as "public safety,
the need to rehabilitate and reintegrate offenders, the allocation of resources available
45
to treat and supervise parolees, and potential prison overcrowding." We concluded,
therefore, that the parole officer's "decision not to pursue revocation in response to [the
42
Id.
43
Id. at 360 (alterations in original) (quoting Div. of Corr., Dep't of Health
& Soc. Servs. v. Neakok, 721 P.2d 1121, 1134 (Alaska 1986)).
44
Id. at 360-61; see also Alaska Dep't of Corr. Pol'ys & Proc., 920.01:
Community Corrections Definitions , DEP'T OF CORR.: OFF. OF THE COMM'R (last
visited Aug. 19, 2024), https://doc.alaska.gov/commissioner/policies-procedures (to
view this policy, under subheading "Policies & Procedures" select "Probation &
Parole" and then "Chapter 920 - Definitions").
45
Cowles, 151 P.3d at 359-60 (reciting policy considerations relevant to
parole board's discretionary decision-making); id. at 361 (concluding that parole
officer's decision-making "involves the same weighing of policy matters").
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----------------------- Page 15-----------------------
parolee's] technical violations" was an exercise of judgment protected by discretionary
46
function immunity.
Not entitled to immunity, however, were "[t]he day-to-day supervisory
activities of a parole officer, such as filling out risk assessment scales and investigating
47
the apparent commission of a serious violation." "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
48
But we cautioned that
some judgment in carrying out established DOC directives."
the duty to investigate arises only with regard to parole violations of which the parole
officer has notice, because "seeking out possible parole violations of which the parole
officer has no notice" involves "policy judgments in deciding how to allocate time and
resources among various clients" and therefore falls within the scope of discretionary
49
function immunity.
In light of the holding in Neakok as narrowed in Cowles, Smith argues that
Farrar's failure to investigate Harrison's alleged violations of his probation conditions
is not an immune discretionary decision because she had notice - of both the DVPO
and Harrison's repeated violations of its terms - sufficient to require her to investigate
further. She argues that further investigation would have revealed to Farrar the extent
of Harrison's violations and that those violations were serious, necessitating a violation
report and a petition to revoke Harrison's probation.
But we disagree. As explained below, there is evidence that Farrar learned
of several of the possible DVPO violations Smith identifies, but the evidence also shows
46
Id. at 361.
47
Id.
48
Id.
49
Id. at 362.
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----------------------- Page 16-----------------------
that she performed her operational duty of investigating them, and her conclusion that
she lacked probable cause to find a violation was a reasonable one. Her subsequent
decisions - whether to investigate further or take other action - were protected by
discretionary immunity.
B. Farrar Performed Her Operational Duty To Investigate Alleged
Violations Of Which She Was Aware; Her Subsequent Decisions Are
Protected By Discretionary Function Immunity.
Before we decide whether statutory immunity applies, we first determine
whether "a defendant otherwise owes a duty of care to the plaintiff and thus would be
50
Such a duty exists here. As we held in
liable in the absence of such immunity."
Neakok and affirmed in Cowles, the State has a duty to exercise due care in supervising
51 and this duty is owed to the probationer's foreseeable victims, whether
probationers,
"a particular individual or [an] identifiable group."52 Smith, like the victims in Neakok
and Cowles, was a foreseeable victim.53 Because the State does not dispute that it owed
Smith a duty of care, the determinative issue for purposes of summary judgment was
whether discretionary function immunity applied.
Smith argues that Farrar was negligent both because she failed to
investigate alleged violations of the probation conditions and because she failed to
conclude that they were serious enough to require action. These arguments invoke
50
Div. of Corr., Dep't of Health & Soc. Servs. v. Neakok, 721 P.2d 1121,
1125 (Alaska 1986) (quoting Davidson v. City of Westminster, 649 P.2d 894, 896 (Cal.
1982)), overruled in part on other grounds by Cowles, 151 P.3d 353.
51
Cowles, 151 P.3d at 363-64.
52
Id. at 363; see also Neakok, 721 P.2d at 1129 ("We agree with those courts
which have held that the inability to predict the special victim of a dangerous person
does not absolve a custodian from a duty to use due care to protect others who might
foreseeably be endangered by that person.").
53
See Neakok, 721 P.2d at 1129; Cowles, 151 P.3d at 363-64.
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different applications of the discretionary immunity analysis, and we discuss them in
turn below.
1. There is no evidence that Farrar failed to investigate alleged
violations of probation conditions that were brought to her
attention.
DOC policy provides that probation officers "shall investigate all
54 A probation officer has no
allegations of violations of the conditions of supervision."
discretion whether to perform this duty; she must investigate.55 As noted above,
discretionary function immunity does not apply to this duty.56 In Cowles, a parolee
reported to his parole officer that the police had come to his house to arrest him.57 The
parole officer allegedly "took no action to find out from the police why they had tried
to arrest [the parolee]."58 We held that because parole officers have no discretion as to
whether to investigate, the officer's potential failure to follow up meant that the State
was not entitled to summary judgment and immune from suit.59 We also emphasized,
54
Alaska Dep't of Corr. Pol'ys & Proc., 902.14: Violation Of Supervision
Conditions (effective Nov. 27, 2002) (on file with the court). This was the policy in
effect during the time period in question. It was repealed on January 1, 2017, and
replaced by DOC Policy 902.16. Alaska Dep't of Corr., Pol'ys & Proc., 902.14:
EP 'T OF CORR.: OFF. OF THE COMM'R (Jan. 1,
Violation Of Supervision Conditions, D
2017), https://doc.alaska.gov/pnp/pdf/902.14.pdf (noting DOC Policy 902.14
incorporated into DOC Policy 902.16).
55 Cowles, 151 P.3d at 361.
56
Id. ("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.").
57 Id. at 357.
58 Id.
59 Id. at 361-62 (noting that "[i]ssues of material fact preclude summary
judgment for the State on this issue" because "there is a question of fact as to what
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however, that the State cannot be liable for a parole officer "failing to take affirmative
60
action to discover parole violations of which she had no notice."
Violating a DVPO is a crime.61 A violation of the DVPO in this case
would also be a violation of Harrison's probation conditions because of the requirement
that he obey all laws and special instructions of the court. But Smith does not dispute
Farrar's testimony that as a probation officer she was authorized to investigate only
probation violations, not new crimes. Instead of investigating an alleged crime herself,
she was required to notify local law enforcement of information that could lead to new
criminal charges and await the results of their investigation before looking into any
corresponding violation of probation conditions. And that appears to be what she did.
At her deposition she acknowledged receiving "calls from APD saying there was an
alleged violation of a DV[P]O, and [that she] also got their reports that said . . . they
didn't charge any crime. They didn't find enough evidence to say there was a new
crime." The evidence supports the State's position that after learning of the alleged
violations in April 2016, Farrar investigated them: she spoke with the investigating
officers and the assigned prosecutor and learned that APD had already concluded there
was no probable cause to arrest Harrison.
Other than the two 2016 incidents involving police contacts, Farrar
testified: "No one ever contacted m[e] telling me [that] they never got [the] notice
[required by the DVPO] . . . . As for talking to Ms. Smith, she never called me." Smith
happened at the meeting at which [the parolee] gave [the officer] the monthly report
stating that the police had come to arrest him").
60 Id. at 362 (adopting dissent of Matthews, J., in Div. of Corr., Dep't of
Health & Soc. Servs. v. Neakok, 721 P.2d 1121, 1137 (Alaska 1986)).
61 See AS 11.81.900(b)(11) (" '[C]rime' means . . . a felony or a
misdemeanor."); AS 11.56.740(a)-(b) (defining "crime of violating a protective order"
and classifying it as class A misdemeanor).
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cites a number of other instances when Harrison failed to give Southcentral security the
required notice (i.e., "at least one day in advance"), supporting her argument with the
62 But there is no evidence Farrar knew about
security employees' deposition testimony.
these concerns at the time. Her notes indicate that when Harrison gave her the prior
notice she required of him, he usually told her that he had already contacted
Southcentral security or would do so shortly.
At her deposition Farrar explained that she did not confirm Harrison's
representations with Southcentral security because she "had not gotten any information
or an inkling from anyone else, from the victim or anybody [else], that [Harrison] was
not doing what he was supposed to be doing." Again, there is nothing in the
documentary record to contradict her testimony.
In sum, the State cannot be liable for a probation officer's failure "to take
63
affirmative action to discover [probation] violations of which she had no notice."
There is no evidence that Farrar knew of alleged violations that would prompt her to
investigate beyond those few that were brought to her attention because of APD's
involvement - and she investigated them.
62
Southcentral's safety manager testified that "there were several instances
where [Harrison] didn't contact us and showed up on campus" and "other times where
he contacted the hospital security program instead of notifying us [at Southcentral],"
which in the witness's view showed an intent "to play the system." The superior court,
in granting the State's motion for summary judgment, discussed the incidents involving
APD and concluded that "no evidence had been presented showing any other
violations" by Harrison, and "[t]he evidence presented . . . indicate[s] that Harrison
followed the requirements of the DVPO." Although this finding is contradicted by the
record, it is not the number of DVPO violations that is relevant here but rather the
number of which Farrar was aware.
63
Cowles, 151 P.3d at 362.
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2. Once she investigated and found no probable cause, Farrar's
subsequent decisions were protected by discretionary
immunity.
A probation officer investigating alleged violations of supervision
conditions must determine whether there is probable cause to conclude that a violation
has occurred; if there is, the officer must decide whether the violation is serious or
64 The applicable probable cause standard is the same one applied by other law
minor.
enforcement officers.65 "Probable cause to arrest exists if the totality of the
circumstances known to the officer would support a reasonable belief that an offense
has been or is being committed."66 We review an officer's probable cause
determination "under an objective standard without regard to the officer's subjective
intent."67
To decide whether Farrar had probable cause to conclude that Harrison
had violated his probation conditions, we therefore consider "the totality of the
circumstances known to [her]."68 We first observe that Harrison's offender history
included references to his dangerousness, including the threats he made to Smith after
being released from prison in April 2014. The history also includes the police contact
in January 2015, when Farrar's predecessors investigated Smith's claim that she saw
Harrison in a building lobby on the medical campus and called APD to report that he
had failed to give the required notice. The probation officers assigned at the time spoke
64
Alaska Dep't of Corr. Pol'ys & Proc., 902.14: Violation Of Supervision
Conditions (effective Nov. 27, 2002) (on file with the court) ("Violations of supervision
conditions will be investigated, and classified as serious or minor," and the "Probation
Officer will determine the appropriate response.").
65
See id.
66
Simpson v. State, 489 P.3d 1181, 1185 (Alaska App. 2021).
67
Yi v. Yang, 282 P.3d 340, 347 (Alaska 2012).
68
Simpson, 489 P.3d at 1185.
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----------------------- Page 21-----------------------
with APD and Harrison about the incident; ultimately Harrison was not arrested or
charged. Farrar took over the file a few weeks later.
The first mention of "Victim contact" in Farrar's own notes occurs over a
year later, in February 2016, when she asked Harrison "if he had any contact with the
victim whatsoever" and he "denied all contact," explaining the notification process he
followed when visiting the medical campus. The next relevant dates are in early April
2016, when Farrar learned of APD's investigation of the March 30 and April 4
incidents. As described above, Farrar spoke to the investigating officer about the March
30 incident and to the assigned prosecutor about both incidents; the prosecutor informed
Farrar that he had been "briefed by the officer . . . that there was a report last week as
well . . . [b]ut there is still no crime or violation of the DV[P]O or probation conditions."
Farrar made the same decision: that there were no violations of Harrison's
probation conditions requiring further action. Given what she knew (or should have
known from the offender history) - that Harrison had made serious threats in the past,
that he had nonetheless apparently complied with the DVPO conditions for over a year,
that APD had investigated the March and April allegations and found insufficient
evidence to charge a new crime - we cannot say that her decision was legally incorrect.
And once having investigated and determined that there was no probable cause to find
a violation of probation conditions, Farrar had fulfilled her operational,
69
nondiscretionary duty and was not required to take further action.
69
Smith argues that Harrison's actions were serious violations, as defined in
the regulations, because they jeopardized her property or safety. See Alaska Dep't of
Corr. Pol'ys & Proc., 920.01: Community Corrections Definitions, DEP'T OF CORR.:
OFF. OF THE COMM'R (last visited Aug. 19, 2024),
https://doc.alaska.gov/commissioner/policies-procedures (to view this policy, under
subheading "Policies & Procedures" select "Probation & Parole" and then "Chapter 920
- Definitions"). If a violation is serious, the probation officer "has no discretion, and
thus no immunity, in responding to felony behavior or other actions that jeopar dize the
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----------------------- Page 22-----------------------
We acknowledge that a different probation officer could have taken a
different tack: she could have decided not to rely on APD's conclusions and the
prosecutor's advice but instead to investigate further on her own. But such a decision
about whether to expand or extend an investigation's scope - as opposed to whether
the investigation should be undertaken at all - is one usually left to the discretion of
70
the investigating agency. The depth and duration of an investigation implicate the
same considerations that animated our decision in Cowles that a parole officer's
decision not to "seek[] out possible parole violations of which the parole officer has no
notice involves planning decisions that are entitled to discretionary function
71
immunity." Whether Farrar would rely on the conclusion of other law enforcement
officers, or whether she would instead follow up with further investigation of her own,
property or the safety of another person; in such cases the officer is simply executing a
pre-existing policy." State, Dep't of Corr. v. Cowles, 151 P.3d 353, 361 (Alaska 2006).
We acknowledge that minor violations could cumulatively amount to a serious one,
especially in the context of DVPOs, which often address a series of unwanted contacts
that may be individually innocuous but that add up to harassment or a credible threat to
safety. See, e.g., AS 11.41.260 (defining crime of stalking in the first degree and citing
AS 11.41.270, which defines stalking in the second degree). However, because Farrar
reasonably believed that she lacked probable cause to conclude that violations had
occurred, it is not necessary for us to determine whether such violations would have
been properly classified as minor or serious.
70
See Alaska State Comm'n on Hum. Rts. v. Anderson, 426 P.3d 956, 964
(Alaska 2018) ("Any administrative agency empowered to investigate complaints and
allegations of wrongdoing must have a broad discretion if it is to function at all."
(quoting In re Nowell, 237 S.E.2d 246, 252 (N.C. 1977))); Yankee v. City & Borough
of Juneau, 407 P.3d 460, 464 (Alaska 2017) ("Generally, courts decline to review
executive-branch decisions not to prosecute an individual or not to enforce a law under
particular circumstances." (emphasis in original)); see also Vickers v. United States,
228 F.3d 944, 951 (9th Cir. 2000) ("[T]he discretionary function exception protects
agency decisions concerning the scope and manner in which it conducts an investigation
so long as the agency does not violate a mandatory directive.").
71
Cowles, 151 P.3d at 362.
-22- 7750
----------------------- Page 23-----------------------
presumably involved "policy judgments in deciding how to allocate time and resources
among various clients," balancing "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
72
needs."
Thus, once Farrar investigated the alleged violations of which she had
notice and found no probable cause that violations had occurred, the rest of her response
involved discretionary planning decisions that are immune from suit, even if we were
to view them as wrongheaded. "In this way, discretionary function immunity 'ensures
that courts do not step into the policy roles committed to other branches of
73
Accordingly, the superior court properly granted summary judgment
government.' "
74
to the State on Smith's claims.
72
Id.
73
Id. at 359 (quoting Kiokun v. State, Dep 't of Pub. Safety, 74 P.3d 209, 215
(Alaska 2003)).
74
In her opposition to the State's motion for summary judgment and in her
opening brief on appeal, Smith alludes to violations of the requirement of prior notice
to the probation officer but does not develop them into a separate argument, focusing
instead on violations of the requirement of prior notice to Southcentral security. She
develops the argument about inadequate notice to Farrar more fully in her reply brief.
We do not address the argument separately except to note that the analysis is similar.
"Violations of supervision conditions other than law violations" are by definition
"minor violations." Alaska Dep't of Corr. Pol'ys & Proc., 920.01: Community
Corrections Definitions, DEP'T OF CORR.: OFF. OF THE COMM'R (last visited Aug. 19,
2024), https://doc.alaska.gov/commissioner/policies-procedures (to view this policy,
under subheading "Policies & Procedures" select "Probation & Parole" and then
"Chapter 920 - Definitions"). Had Farrar concluded that Harrison was not giving her
adequate notice of his visits to the medical campus, it would be by definition a "minor
violation" which the probation officer is required to "attempt to resolve . . . without
filing a probation or parole violation report," employing less serious measures such as
"counseling, behavior contracts, letters of warning, or other appropriate means."
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----------------------- Page 24-----------------------
CONCLUSION
The judgment of the superior court is AFFIRMED.
Al
aska Dep't of Corr. Pol'ys & Proc., 902.14: Violation of Supervision Conditions
(effective Nov. 27, 2002) (on file with the court).
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