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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 Health & Social Services v. Sandsness (5/23/2003) sp-5693

State, Dept. of Health & Social Services v. Sandsness (5/23/2003) sp-5693

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

STATE OF ALASKA,              )
DEPARTMENT OF HEALTH AND )    Supreme Court No. S-9910
SOCIAL SERVICES, DIVISION OF  )
FAMILY AND YOUTH SERVICES,    )    Superior Court No. 3AN-95-7078
CI
                              )
          Petitioners,             )    O P I N I O N
                              )
     v.                       )    [No. 5693 - May 23, 2003]
                              )
SANDRA SANDSNESS and MARCI    )
BURNETT, individually and as       )
Personal Representative of the          )
ESTATE OF RICHARD P.          )
SANDSNESS, and as parent and legal )
guardian and next friend of RYAN   )
BURNETT,                 )
                              )
          Respondents.        )
________________________________)


          Petition  for Review from the Superior  Court
          of   the  State  of  Alaska,  Third  Judicial
          District, Anchorage, Sen K. Tan, Judge.

          Appearances:   Robert P.  Blasco,  Robertson,
          Monagle  &  Eastaugh, Juneau, for  Petitioner
          State  of  Alaska.   Ronald  K.  Melvin,  Law
          Office  of  Ronald K. Melvin, Anchorage,  for
          Respondents.  [No brief filed.]

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.
          EASTAUGH, Justice.
          MATTHEWS,  Justice,  with  whom  FABE,  Chief
          Justice, joins, concurring.

I.   INTRODUCTION

          Darrel Whitaker shot and killed Richard Sandsness seven

weeks  after the State of Alaska released Whitaker, a  seventeen-

year-old juvenile offender, from custody.  Sandsness's widow  and

daughter  sued the state for negligence, alleging  that  it  knew

Whitaker had dangerous propensities.  Denying summary judgment to

the  state,  the superior court held that the state, in  deciding

whether  to  ask  a court to extend Whitaker's state  commitment,

owed  an  actionable  duty to exercise  due  care.   We  reverse.

Imposing  this  duty  would conflict with  the  state's  goal  of

rehabilitating juvenile offenders and could reduce public  safety

in the long run.

II.  FACTS AND PROCEEDINGS

           Darrel Whitaker was placed on probation in early  1991

for  vandalizing a vehicle and consuming alcohol.   He  was  then

fourteen  years  old.   In August 1991,  after  he  violated  his

probation  conditions  by  possessing fire-starting  devices  and

starting  fires in a foster home, Whitaker was committed  to  the

custody of the State of Alaska until August 9, 1993.  The  Alaska

Division  of  Family  and Youth Services  (DFYS)  placed  him  at

McLaughlin  Youth  Center  (MYC).  In  June  1993  his  treatment

supervisor recommended that Whitaker be released to his  father's

custody  to work with his father in a remote logging  camp.   The

recommendation  stated  that  "[t]he  prognosis  for   successful

release  and reintegration into society for Darrel is good."   It

noted   the  need  to  reunite  him  with  his  father  and   his

"significant gains" during his stay at the youth center, and also

stated that the "treatment team feels that the likelihood of  any

further progress while at MYC by Darrel would be minimal. .  .  .

Reuniting  Darrel  with his father, providing an  opportunity  to

continue his school, and the chance for employment would  be  the

next  logical  treatment move for him."  Two other  DFYS  workers

approved this recommendation, which was then referred to a review

board,  which  also  approved it.  Per the  recommendation,  DFYS

released  Whitaker  to  his father's custody  on  July  2,  1993,

several weeks before his commitment period would have expired  on

August 9.

            On   August  21  Whitaker  shot  and  killed  Richard

Sandsness, an Anchorage taxi cab driver, while attempting to  rob

him.   Whitaker  turned seventeen a month after his  release  and

about three weeks before he murdered Sandsness.

           The  decedent's widow and daughter sued the state  and

others.   They  alleged in part that DFYS negligently  failed  to

properly evaluate Whitaker before his release, negligently failed

to  adequately  supervise or control him after his  release,  and

negligently failed "to communicate to the proper decision makers"

his  allegedly  "violent  propensities."   The  state  moved  for

summary judgment on various theories.

           The  superior court granted in part and denied in part

the  state's  summary judgment motions.  Relying on this  court's

decision  in  Division  of Corrections v. Neakok,1  the  superior

court  held  that the state owed no duty to supervise or  control

Whitaker  at  the time of the murder because the  crime  occurred

after  Whitaker's period of commitment had expired.  The superior

court  also held that the state owed no duty to warn the  general

public  of  Whitaker's dangerous propensity.  The court initially

declined  to decide whether the state has a pre-release  duty  to

petition  a  court  to  extend  custody  of  a  minor  under   AS

47.12.120(b)(1)  if the state "is aware that the  minor  poses  a

danger to the general public."  After the state moved for summary

judgment on that issue, the superior court held that DFYS  had  a

duty  to act carefully and reasonably in deciding whether to  ask

the  superior  court to extend Whitaker's period  of  commitment.

The  court  also held that DFYS's decision not to seek  continued

commitment  of Whitaker was not immune from liability  under  the

discretionary   function  immunity  doctrine   codified   at   AS

09.50.250(1).2   Accordingly,  the  court  held  that  issues  of

material  fact  regarding whether the state  breached  this  pre-

release duty precluded summary judgment for the state.

           The  state petitioned for interlocutory review of  the

superior  court's  order denying the state's motion  for  summary

judgment.   We granted review under Appellate Rule 402(b)(2)  and

ordered full briefing.3       Counsel who originally appeared for

respondents  responded  to the state's petition  for  review  but

filed  no  brief  after  we  granted  the  petition  and  ordered

briefing.   New  counsel appeared for respondents after  briefing

and argument were complete.

III. STANDARD OF REVIEW

           We  review denials of summary judgment motions de novo

to  determine  whether there are genuine issues of material  fact

and  whether the moving party is entitled to judgment as a matter

of law, viewing all facts in the light most favorable to the non-

movant.4   The  existence  and extent  of  a  duty  of  care  are

questions of law which we review de novo.5

IV.  DISCUSSION

           The  state  asks  us to hold that the  superior  court

erroneously  determined that DFYS had an actionable duty  to  use

due  care in deciding whether to ask a court to extend Whitaker's

commitment  to  the  state.   Analyzing  this  case   under   the

Restatement  (Second) of Torts  315 and 319 (1965),  we  conclude

that  the  state did not owe the duty described by  the  superior

court.   We would reach the same conclusion if we were to  employ

the superior court's approach and apply the policy considerations

adopted in D.S.W. v. Fairbanks North Star Borough School District

and  other  policy considerations applicable to public  agencies.

Accordingly, we need not reach the other issues presented by  the

state's  petition.   A.     DFYS's  Relationship  with  Juveniles

Committed  to  Its Custody Does Not Give Rise to  the  Actionable

Duty Imposed by the Superior Court.

           The  superior court held that DFYS's relationship with

potentially   dangerous  juveniles  committed  to   its   custody

justifies  imposing an actionable duty on DFYS  to  exercise  due

care  in  determining whether to petition a court  for  continued

commitment before release.  The court noted that while  there  is

generally no duty to prevent foreseeable harms committed by third

parties,  section  315  of  the  Restatement  (Second)  of  Torts

provides  for  an exception to this rule if the defendant  has  a

special relationship with either the third party or the potential

victim which justifies imposing such a duty.6

          Section 315 states the rule as follows:

          There is no duty so to control the conduct of
          a third person as to prevent him from causing
          physical harm to another unless
                (a)   a special relation exists between
          the  actor and the third person which imposes
          a  duty  upon the actor to control the  third
          person's conduct, or
                (b)   a special relation exists between
          the  actor and the other which gives  to  the
          other a right to protection.
          
           Section  319  describes the special relationship  rule

that potentially applies in this case:

          One  who takes charge of a third person  whom
          he knows or should know to be likely to cause
          bodily  harm  to others if not controlled  is
          under  a duty to exercise reasonable care  to
          control the third person to prevent him  from
          doing such harm.
          
           In holding that the state owed Sandsness an actionable

duty,  the  superior court applied the so-called D.S.W.  factors7

and  treated  Division of Corrections v. Neakok as  controlling.8

This   court  held  in  Neakok  that  the  state  had  a  special

relationship with a parolee, justifying imposition of a tort duty

to  control  the parolee both because the state had a substantial

ability to control him and because it had the "ability to foresee

the  dangers  the parolee poses" to society upon  release.9   The

superior   court  determined  that  this  rationale  is   equally

applicable  here,  because  the state had  ample  opportunity  to

observe Whitaker and substantial ability to postpone his release.

           The state contends that Neakok and other cases finding

special  relationships are inapposite because DFYS did  not  have

any  ability to control Whitaker at the time of the murder.   The

state  argues  that its special relationship with Whitaker  ended

with  the original two-year commitment, which expired twelve days

before   the   murder.    Without   a   contemporaneous   special

relationship, the state argues, there is no basis for imposing  a

duty  to  control.  We need not decide whether these propositions

have  merit because our agreement with another argument  advanced

by the state resolves this petition.

           The state's argument that is dispositive relies on and

quotes from Sorge v. State in contending that imposing a duty  to

control  on the basis of DFYS's relationship with Whitaker  would

"disturb the delicate balance the Legislature has crafted between

the  best  interests  of children and the  broader  interests  of

public  safety."10  In Sorge, the Vermont Supreme Court  rejected

the  plaintiffs' contention that the state had an actionable duty

under  Restatement   319 to control a juvenile  who  assaulted  a

newspaper  delivery man during a weekend leave with his mother.11

While  agreeing that the state had a "special relationship"  with

juveniles  committed  to its custody, the Vermont  Supreme  Court

rejected the contention that the state's exclusive purpose was to

"control"  those  juveniles for the protection of  the  public.12

Accordingly, the court refused to impose liability on  the  state

for   harm  caused  by  third  persons  released  from  a   state

rehabilitative program.13  The court surveyed relevant  case  law

and  noted  that  similar attempts to impose liability  had  been

rejected  by courts "that have recognized that most juvenile  and

adult  programs dealing with persons committed to the custody  of

the  State  are  intended  to rehabilitate  conduct  rather  than

control  it."14   The  court reasoned  that  tort  liability  for

negligent release decisions could pressure states to " `err  more

often on the side of excessive detention.' "15  This would "erode

the   public  policy  of  rehabilitation  of  juveniles   through

reunification with their families and the public."16

           The  Vermont  Supreme Court's reasoning  applies  with

equal  force  in Alaska.  We have recognized that "rehabilitation

rather  than  punishment  is  the  express  purpose  of  juvenile

jurisdiction."17  Successful rehabilitation demands the  earliest

possible  reintegration  of  the juvenile  with  his  family  and

community consistent with public safety.18  The Alaska legislature

has  already crafted a balance between the interests of the child

and  the  broader  interest  of public  safety.   Alaska  Statute

47.12.120(b)(1) provides that the state may petition for and  the

court may grant extensions of commitment "if the extension is  in

the  best  interests  of the minor and the public."19   (Emphasis

added.)   Further, AS 47.12.260 permits DFYS to release juveniles

at  any  time  - without court approval - "if it appears  to  the

satisfaction  of  the  department  that  there  is  a  reasonable

probability  that  the juvenile will remain  at  liberty  without

violating the law."20 (Emphasis added.)  Thus, the legislature has

allocated  the risk of repeat offenses to the public in exchange,

presumably,  for  offsetting  gains  realized  by  rehabilitating

juvenile  offenders to make them productive members of society.21

Imposing  tort  liability for harm caused by  released  juveniles

would distort this balance.

           At  least  one  state  supreme  court  has  implicitly

rejected  this  analysis  -   at  least  with  respect  to  adult

parolees.   In  Grimm v. Arizona Board of Pardons & Paroles,  the

Arizona  Supreme  Court  relied on  Restatement   319  to  impose

liability  on  a parole board for harms caused by  a  negligently

released  parolee.22   The parole statute authorized  release  of

prisoners  only if there was a "reasonable probability that  [the

parolee]  will  live and remain at liberty without violating  the

law."23    The  court  explained  that,  absent  such  reasonable

probability,  parole  was not authorized and  the  board  members

could not receive immunity for granting parole.24  The court held

that:

          The  board  members should not bear liability
          for  taking the risk allocated to them  as  a
          statutory  duty.   If  it reasonably  appears
          that  the applicant is a good risk, the board
          members should not be liable if it turns  out
          that they guessed wrongly.[25]
          
Under  this  view,  tort  liability for negligent  release  would

simply reinforce rather than distort the legislative scheme - the

parole  board  could only be held liable when  reasonable  jurors

could find that the board subjected the public to a greater  risk

than that authorized by law.

          The superior court in the case before us took a similar

position.  Noting that DFYS was already obligated under  its  own

regulations  to  consider  petitioning the  court  for  continued

commitment  during its pre-release review,26 the court implicitly

reasoned that imposing liability for a negligent failure to do so

would  not  distort the proper balance between rehabilitation  of

juveniles  and  protection of the public.   But  the  court  also

stated  that "[i]n order to prevent future harm, the  State  must

ensure  that a potentially dangerous juvenile delinquent  is  not

released."   (Emphasis  added.)  This may  be  an  understandable

position  in light of the ensuing tragedy in this case.   But  it

illustrates  the  danger of using tort liability  to  police  the

state's  discretion  in the area of juvenile  corrections  -  the

state  may well "err on the side of excessive detention" to avoid

negligence suits or judgments.27  This may seem to be good policy

for  citizens  going about their private affairs,  but  it  would

unduly  frustrate the primary goal of our juvenile justice system

-  rehabilitation.28   In  exchange  for  theoretical  short-term

benefits,  the  long-term benefits resulting from  rehabilitation

might be lost or diminished.  The benefits of rehabilitation  are

not  limited to those personal to the juvenile; they also include

reducing the chances the juvenile will commit new crimes even  as

an   adult.   Accordingly,  we  hold  that  the  state's  special

relationship  with  juvenile offenders in its  custody  does  not

justify  imposing liability for negligently failing  to  petition

the court to extend their commitment.

          The superior court decision denying summary judgment to

the state on the pre-release liability claim discussed Neakok  in

some  detail and treated it as persuasive when the superior court

conducted  its D.S.W. analysis.  In Neakok this court  held  that

the  state's supervisory relationship with its parolees justified

imposing  a  duty  to  use care to prevent a parolee  with  known

dangerous propensities from causing foreseeable injuries to other

people.29   The facts of that case are distinguishable  from  the

facts  here.   The releasee there was an adult whose release  was

mandatory.   Although the state had no authority  to  extend  his

confinement or ask the court to do so, it had authority to impose

conditions  on  his release.  Whitaker, however, was  a  juvenile

offender.    The  social  interest  in  rehabilitating   juvenile

offenders  strongly outweighs any interest in  making  the  state

liable  for loss resulting from new crimes that might  have  been

prevented  had the state asked the court to delay the  juvenile's

release.   The prospect of state tort liability should not  be  a

factor  in  deciding  whether  to release  a  juvenile  offender.

Neakok does not control the case now before us.30

           We consequently conclude that Restatement  319 did not

impose a tort duty on the state to seek a court-ordered extension

of Whitaker's state commitment.

          B.     The  D.S.W.  Considerations  Would  Not  Justify
          Imposing a Duty Here.
          
           In  D.S.W.  v.  Fairbanks North  Star  Borough  School

District  we  adopted  a  list  of  considerations  used  by  the

California  courts to decide whether, as a matter  of  policy,  a

tort  duty  should be imposed.31  Although we have observed  that

there  is  no  need  to  rely on the D.S.W. factors  in  deciding

whether  an actionable duty exists if the duty issue is  governed

by  recognized  principles of tort law,32   we  have  nonetheless

sometimes  referred  to  those factors in considering  whether  a

"special  relationship" gives rise to an actionable duty.33   The

ultimate  question,  of  course, is whether  the  nature  of  the

relationship  imposes a duty to do particular things  to  control

another.34   For  the reasons discussed in Part  IV.A,  the  pre-

release relationship between the state and Whitaker did not  give

rise to a duty to ask the court to extend his commitment.

           The  state  relies prominently on the  D.S.W.  factors

here,  as did the superior court, and as we did in Neakok and  in

other  cases  in  which there were special relationships.35    We

therefore briefly discuss those factors to confirm our conclusion

that  the state had no common-law tort duty based on its  special

relationship  with Whitaker.  We conclude that if  those  factors

did  control our analysis, they would not justify imposing a tort

duty here.

           While  the  most  important single  D.S.W.  factor  is
foreseeability,36 we also consider the degree of  certainty  that
the  plaintiff  suffered  injury,  the  closeness  of  connection
between  the defendant's conduct and the plaintiff's injury,  the
moral  blame attached to the defendant's conduct, the  policy  of
preventing  further harm, and the extent of  the  burden  to  the
defendant and consequences to the community of imposing a  burden
of care.37  When a public agency is involved, we further consider
the  extent of the agency's power, the role imposed on it by law,
and the limitations imposed on it by budget.38

           The  state  may  only be held liable  for  negligently

failing to seek Whitaker's continued commitment "if it could have

foreseen  that  its  failure  to  do  so  might  cause  harm   to

[Sandsness]."39  The superior court held that it was  foreseeable

Whitaker continued to pose a threat to society, given the state's

extensive  record of Whitaker's preoccupation with, and  tendency

towards   violence,  as  well  as  his  behavioral  problems   at

McLaughlin Youth Center and other state institutions.  The  state

argues  that  DFYS's  general knowledge of  Whitaker's  dangerous

propensity   is   insufficient  to  satisfy  the   foreseeability

requirement.

           The  state  places  great weight on  Dinsmore-Poff  v.

Alvord.40   But  that  case did not present  the  legal  question

whether the relationship was such that it could give rise  to  an

actionable  duty  to control another.  Rather, the  question  was

whether  there was sufficient evidence to allow a jury to  decide

whether parents had reason to control their child.  We noted that

"[t]he  [parents] were undisputedly on general notice  of  [their

son's] dangerous propensity" before Dinsmore's murder.41  But  we

affirmed the lower court's ruling because the plaintiffs did  not

present any evidence which could allow a jury to believe that the

parents had a duty to act to prevent their son from committing  a

specifically and imminently foreseeable harm.42

           The  superior  court here noted  that  we  rejected  a

similarly  narrow view of foreseeability in discussing  the  duty

issue in Neakok.43  We there concluded that the parolee's "victims

and  his  actions were within the zone of foreseeable hazards  of

the   state's  failure  to  use  due  care  in  supervising  [the

parolee]."44   As  we  said more recently,  "In  the  context  of

determining the existence of a duty, we have made it  clear  that

foreseeability is a broad concept and does not require  that  the

precise harm in a given case be predictable."45

          The superior court discussed evidence that Whitaker had

violent propensities.46   Given what the state did know, we assume

that  it was sufficiently foreseeable that Whitaker might  commit

new  crimes after his release from custody to satisfy  the  first

D.S.W. duty consideration.

           But foreseeability alone would not necessarily justify

imposing a duty to act here.  We have declined to impose  a  duty

in  some cases in which foreseeability was present.47   Here  the

remaining    considerations   would   strongly    outweigh    the

foreseeability   factor  and  complement   our   analysis   under

Restatement  319.

           There  is  no dispute that Sandsness suffered  injury.

But  the  connection between the consequence of Whitaker's  crime

and  the  state's  failure to act is attenuated.   As  the  state

notes,  DFYS  could  not  have unilaterally  extended  Whitaker's

commitment  under AS 47.12.120(b)(1) - the superior  court  would

have  had  to  decide  whether  to grant  the  state's  extension

petition.  The state's petition would have been a necessary,  but

not  sufficient condition, for extending the commitment.  Because

Whitaker presented no particularized threat (as to when he  might

act,  and  against  whom), the timing  of  his  release  was  not

obviously critical.  As a juvenile offender, his commitment could

not  be  extended indefinitely.  It is not obvious that extending

his  commitment would have made him less likely to commit violent

acts sometime after his eventual release.48

           Regarding  the  degree  of  moral  blame,   the  state

persuasively argues that DFYS's decision not to seek a commitment

extension is consistent with the established policy of attempting

to  rehabilitate  juveniles  by  reintegrating  them  with  their

families and the public.  Accordingly, the state cannot be blamed

for  the  recognized  risks that potentially dangerous  juveniles

generally pose to society upon release.

           Likewise,  the policy of preventing future harm  would

not   obviously  be  served  by  imposing  a  duty.    Under   AS

47.12.010(b), initial commitment periods cannot extend beyond the

juvenile's nineteenth birthday, and re-commitment periods  cannot

extend  beyond the juvenile's twentieth birthday.  As  the  state

admits,  there  is  no clear correlation between  the  length  of

commitment and the rate of recidivism.  Thus, there is no  reason

to believe that incarcerating all dangerous juveniles until their

twentieth  birthdays would likely produce a safer  society.   The

opposite  conclusion  is  at  least  equally  likely.   Society's

commitment   to   the   goal  of  rehabilitating   juveniles   by

reintegrating them with their families and the public reflects an

implicit  belief  that  early reintegration  is  more  likely  to

maximize  public safety in the long-term than prolonged isolation

of juveniles from their families and the broader community of law-

abiding citizens.

           The remaining D.S.W. factors include the burden on the

defendant  and the community if a duty of care were imposed,  and

considerations  of the agency's appropriate role  and  the  power

accorded  to  it  by  law.49  Collectively, these  considerations

strongly suggest that we should not impose an actionable duty  to

petition for commitment extensions for dangerous juveniles.

           The  state persuasively argues that imposing the  duty

described  by the superior court would lead DFYS to  petition  to

recommit  virtually  every juvenile with dangerous  propensities,

because  it is impossible to accurately predict which are  likely

to  engage  in future criminal activity.50  Likewise,  the  state

would  be  discouraged from releasing these juveniles  early  (as

happened here when DFYS released Whitaker about five weeks before

his  commitment  was  to expire).  Both results  would  seriously

undermine the goal of rehabilitation.51

           Also,  imposing a duty here would make the courts  the

sole  arbiters of whether Alaska's juvenile offenders  should  be

recommitted.   Imposing a duty would encourage DFYS  to  petition

for  continued  commitment in every questionable case  to  shield

itself   from  potential  liability,  shifting  the  recommitment

decision  to  the  courts.  This is contrary to  the  arrangement

created by AS 47.12.120(b)(1).  The statute requires DFYS and the

court to agree to extend a juvenile's commitment period.52   This

structural  check  against  either institution's  willingness  to

recommit  juvenile offenders would be frustrated  by  imposing  a

civil tort duty.

           Additionally, the professionals at DFYS  are  arguably

better  suited  than  the courts to weigh the  risks  of  release

against  any  net  benefits of continued  commitment.   The  duty

described  above could deprive the courts of DFYS's  most  candid

appraisal,  because  DFYS could not simultaneously  petition  for

continued  commitment  for  the sake of  avoiding  liability  and

represent that, in its best judgment, further commitment  is  not

worthwhile.   The state further notes that the courts'  resources

would  be  significantly  strained by requiring  them  to  screen

recommitment petitions for possibly 150 juveniles each year.

           Finally, there is no principled way to limit the  duty

imposed   by   the   superior  court  to  the  relatively   minor

governmental  function  of petitioning  the  superior  court  for

commitment   extensions  of  juveniles   with   known   dangerous

propensities.

V.   CONCLUSION

           We therefore conclude that imposing the duty described

by  the  superior court would interfere with the state's goal  of

rehabilitating   youthful   offenders   without   yielding    any

predictable  gains in public safety.  We accordingly REVERSE  and

REMAND for entry of summary judgment for the state.

MATTHEWS,   Justice,  with  whom  FABE,  Chief  Justice,   joins,

concurring.

           I  agree with the rationale and the result of  today's

opinion.    But  I  think  that  our  decision  in  Division   of

Corrections  v. Neakok53 should be overruled rather  than  merely

distinguished and questioned.

           We will overrule a prior decision when we are "clearly

convinced that the rule was originally erroneous or is no  longer

sound because of changed conditions, and that more good than harm

would result from a departure from precedent."54  In my view this

standard  has  been met regarding Neakok.  The decision  in  that

case as to the duty to impose parole conditions is not sound,  in

my  opinion, because it imposes liability for decisions that  are

inherently discretionary as they involve balancing the  sometimes

conflicting goals of rehabilitation and protection of the public.

Like  initial sentencing decisions, this is an area  where  state

officials  should  not be second-guessed in a  tort  trial.   The

result  of  Neakok,  I  believe, has been  to  cause  corrections

officials  to err on the side of restrictiveness when considering

discretionary parole.  Today's opinion recognizes these  problems

in  the context of juvenile justice and recognizes that they  may

also apply to adult corrections.

          In my judgment, we should frankly recognize that Neakok

is  unsound  and overrule it rather than allow it to continue  to

work its mischief.

_______________________________
1    721 P.2d 1121 (Alaska 1986).
2     The  court  held  that the specific  decision-makers  -  as
opposed  to  the state - were nonetheless immune from suit  under
the doctrine of official immunity.
3     Appellate  Rule  402(b)(2) authorizes discretionary  review
before final judgment where "[t]he order or decision involves  an
important question of law . . . and an immediate review . . . may
advance  an  important public interest which might be compromised
if the petition is not granted."

4     P.G. v. State, Dep't of Health & Human Servs., 4 P.3d  326,
330 (Alaska 2000).
5     Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d
105, 109 (Alaska 1992).
6    Cf. Neakok, 721 P.2d at 1126 (citing Restatement (Second) of
Torts  315 (1965)).
7     D.S.W. v. Fairbanks North Star Borough Sch. Dist., 628 P.2d
554, 555 (Alaska 1981).
8    721 P.2d 1121 (Alaska 1986).
9    Id. at 1126.  This court accordingly held that "[g]iven this
special relationship, it is not unreasonable to impose a duty  of
care  on the state to protect the victims of parolees."   Id.  at
1126-27.
10    Sorge v. State, 762 A.2d 816, 823 (Vt. 2000).
11    Id. at 817-18, 820-23.
12    Id. at 820-23.
13     Id. at 820 (citing Rivers v. State, 328 A.2d 398, 400 (Vt.
1974)  (refusing  to impose liability on state  "where  there  is
release  on probation or parole, or even for early release  based
on good time")).
14    Id. at 820-21.
15     Id. at 821 (quoting Ruf v. Honolulu Police Dep't, 972 P.2d
1081, 1093 (Haw. 1999)).
16     Id. at 822 (citing Vermont's statutory scheme for juvenile
corrections  and  noting express purposes of  rehabilitation  and
reintegration with society).
17     Rust  v. State, 582 P.2d 134, 140 n.21 (Alaska 1978);  see
also  AS  47.12.010 ("The goal of this chapter is  to  promote  a
balanced  juvenile justice system" which will protect the  public
and help juveniles develop into productive citizens).
18     See AS 47.05.060 ("The purpose of this title as it relates
to  children  is to secure for each child the care and  guidance,
preferably in the child's own home, that will serve  the  .  .  .
welfare of the child and the best interests of the community .  .
.  .");  cf.  Matter of S.D., 549 P.2d 1190, 1199  (Alaska  1976)
("[R]emoval  of children from the family home may be  a  drastic,
traumatic  and emotionally damaging experience which is justified
only  under  extreme  conditions.  Children  should,  if  at  all
possible, be maintained in their homes with society providing the
supportive services necessary to keep the family together.").
19    AS 47.12.120(b) provides in pertinent part:

          If  the  minor is not subject to (j) of  this
          section and the court finds that the minor is
          delinquent, it shall
                (1)   order the minor committed to  the
          department for a period of time not to exceed
          two years or in any event extend past the day
          the  minor  becomes 19 years of  age,  except
          that the department may petition for and  the
          court  may  grant in a hearing  (A)  two_year
          extensions  of commitment that do not  extend
          beyond  the  minor's  19th  birthday  if  the
          extension  is  in the best interests  of  the
          minor  and the public;  and (B) an additional
          one_year period of supervision past age 19 if
          continued   supervision  is   in   the   best
          interests  of  the  person  and  the   person
          consents  to  it; the department shall  place
          the  minor in the juvenile facility that  the
          department considers appropriate and that may
          include   a  juvenile  correctional   school,
          juvenile   work  camp,  treatment   facility,
          detention  home, or detention  facility;  the
          minor  may  be  released  from  placement  or
          detention and placed on probation on order of
          the  court  and may also be released  by  the
          department,  in  its  discretion,  under   AS
          47.12.260;
                 (2)    order  the  minor   placed   on
          probation,   to   be   supervised   by    the
          department,  and  released  to  the   minor's
          parents,  guardian, or a suitable person;  if
          the   court   orders  the  minor  placed   on
          probation,  it  may  specify  the  terms  and
          conditions of probation; the probation may be
          for  a period of time not to exceed two years
          and  in  no event to extend past the day  the
          minor  becomes 19 years of age,  except  that
          the department may petition for and the court
          may grant in a hearing
                (A)  two_year extensions of supervision
          that  do  not extend beyond the minor's  19th
          birthday  if  the extension is  in  the  best
          interests of the minor and the public; and
                (B)   an additional one_year period  of
          supervision  past  age 19  if  the  continued
          supervision is in the best interests  of  the
          person and the person consents to it;
                (3)   order the minor committed to  the
          custody  of  the  department  and  placed  on
          probation, to be supervised by the department
          and   released   to   the  minor's   parents,
          guardian, other suitable person, or  suitable
          nondetention setting such as with a  relative
          or in a foster home or residential child care
          facility,  whichever the department considers
          appropriate  to implement the treatment  plan
          of  the  predisposition report; if the  court
          orders the minor placed on probation, it  may
          specify   the   terms   and   conditions   of
          probation;  the department may  transfer  the
          minor,  in  the minor's best interests,  from
          one  of  the probationary placement  settings
          listed in this paragraph to another, and  the
          minor,  the minor's parents or guardian,  the
          minor's   foster  parent,  and  the   minor's
          attorney are entitled to reasonable notice of
          the  transfer; the probation  may  be  for  a
          period of time not to exceed two years and in
          no  event  to extend past the day  the  minor
          becomes  19  years of age,  except  that  the
          department may petition for and the court may
          grant in a hearing
                (A)   two_year extensions of commitment
          that  do  not extend beyond the minor's  19th
          birthday  if  the extension is  in  the  best
          interests of the minor and the public; and
                (B)   an additional one_year period  of
          supervision  past  age 19  if  the  continued
          supervision is in the best interests  of  the
          person and the person consents to it . . . .
20    AS 47.12.260 provides:

                 A   minor   found  to  be  a  juvenile
          delinquent  who  by conduct gives  sufficient
          evidence  of having reformed may be  released
          at   any   time  under  the  conditions   and
          regulations  that  the  department  considers
          proper, if it appears to the satisfaction  of
          the  department  that there is  a  reasonable
          probability  that the minor  will  remain  at
          liberty without violating the law.
21     One study in Pennsylvania cited in the state's brief found
that  fifty-five percent of all released juvenile offenders  were
subsequently rearrested.  See In the Interest of J.R.,  648  A.2d
28, 36-37 (Pa. Super. 1994).
22    564 P.2d 1227, 1234 (Ariz. 1977).
23     Id.  at  1232 (quoting Ariz. Rev. Stat.  31 -  412  (1977)
(amended 1978)).
24    Id.
25    Id.
26     See  7  Alaska  Administrative Code  (AAC)  52.210  (2002)
(providing that review board must consider several factors  "[i]n
determining  whether a resident should be released,  whether  the
resident's commitment should be allowed to elapse, or  whether  a
recommendation   should   be  made  for  continued   commitment")
(emphasis added).
27    Sorge, 762 A.2d at 821 (quoting Ruf, 972 P.2d at 1093).
28    Rust, 582 P.2d at 140 n.21.
29    721 P.2d at 1130, 1132.
30    The state's brief in this case has not asked us to overrule
Neakok.   We recognize that considerations similar to those  that
we  find  dispositive  here  may bear on  correctional  decisions
regarding  adult offenders.  Because we have not  been  asked  to
overrule  Neakok, because the question whether to do so  has  not
been  briefed (indeed, the respondents have filed no brief),  and
because the present case is factually distinguishable, we decline
to  consider sua sponte whether Neakok remains good law or should
be overruled.
31     628  P.2d at 555 (citing Peter W. v. San Francisco Unified
Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)).
32     See,  e.g., Kallstrom v. United States, 43 P.3d  162,  167
(Alaska  2002);  Wongittilin v. State, 36 P.3d 678,  681  (Alaska
2001);  Waskey v. Municipality of Anchorage, 909 P.2d 342, 343-44
(Alaska 1996).
33    See, e.g., P.G. v. State, Dep't of Health & Human Servs., 4
P.3d  326, 331 (Alaska 2000); R.E. v. State, 878 P.2d 1341,  1347
(Alaska 1994); Neakok, 721 P.2d at 1125.
34     Cf.  P.G., 4 P.3d at 334; M.A. v. United States, 951  P.2d
851, 854 n.6 (Alaska 1998).
35     See, e.g., R.E., 878 P.2d at 1347 (holding there was  duty
under  D.S.W. analysis and then confirming that this holding  was
"consistent"  with  common-law special relationship  principles);
Neakok, 721 P.2d at 1125.
36    Neakok, 721 P.2d at 1125.
37    Id.
38     Thompson  v.  County of Alameda, 614 P.2d 728,  733  (Cal.
1980).
39    Neakok, 721 P.2d at 1127.  Neakok explained that "[w]hile a
specific   case-by-case  determination  of   foreseeability   and
causation lies within the province of a jury, the existence of  a
duty is a question of law."  Id. at 1127 n.7.  Thus, in reviewing
whether  Whitaker's crime was sufficiently foreseeable to justify
imposing  a  duty, we are not deciding whether the  state  should
have  foreseen the crime.  Id.  Rather, we are deciding  whether,
as  a  matter  of judicial policy, a jury should be permitted  to
consider whether Whitaker's actions were foreseeable.  Cf. Arctic
Tug  &  Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d  1199,
1203-05 (Alaska 1998) (holding summary judgment appropriate where
undisputed facts compel conclusion that one party owed no duty to
other).
40    972 P.2d 978 (Alaska 1999).
41    Id. at 985.
42    Id. at 987.
43    721 P.2d at 1128-29.
44    Id. at 1129.
45    P.G., 4 P.3d at 331 n.11.
46     Whitaker's initial probation and commitment to the state's
custody arose out of property crimes and underage consumption  of
alcohol.   But  Whitaker's institutional record included  several
documented  escape plans involving "the planned usage of  weapons
that  could  cause  deadly  injuries," at  least  one  unprovoked
assault  on  another resident, and a period of treatment  in  the
facility's  Intensive  Behavioral Adjustment  Program.   Whitaker
apparently did not have a history of actually committing  violent
acts before his release.
47      Mesiar v. Heckman, 964 P.2d 445, 450 (Alaska 1998); Kooly
v.  State,  958  P.2d 1106, 1109-10 (Alaska 1998);  Karen  L.  v.
State,  Dep't of Health & Soc. Servs., 953 P.2d 871, 876  (Alaska
1998);  Schumacher v. City & Borough of Yakutat, 946  P.2d  1255,
1257  n.3  (Alaska  1997); Hawks v. State, 908  P.2d  1013,  1016
(Alaska  1995); Estate of Day v. Willis, 897 P.2d 78, 82  (Alaska
1995).
48     The  state  further  suggests that Whitaker's  intentional
murder of Sandsness severs DFYS's connection to the tragedy.  But
Neakok  rejected a similar argument, reasoning that the parolee's
intentional acts do not relieve the state of liability when those
are  the  very  acts  the  state may be  under  a  duty  to  take
reasonable steps to predict and prevent.  721 P.2d at 1136 n.21.
49    See Neakok, 721 P.2d at 1125; Thompson, 614 P.2d at 733.
50     Neakok,  721  P.2d at 1130 n.13 (recognizing  difficulties
inherent   in  predicting  potential  dangerousness  of  released
prisoners).
51    See supra Part IV.A.
52     See AS 47.12.120(b)(1) ("[T]he department may petition for
and the court may grant . . . extensions of commitment . . . .").
In  contrast,  either the court or DFYS can  release  a  juvenile
before his commitment period lapses.  Id.
53    721 P.2d 1121 (Alaska 1986).
54    State v. Coon, 974 P.2d 386, 394 (Alaska 1999).