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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinegak v. State, Dept. of Corrections (02/17/2006) sp-5988

Kinegak v. State, Dept. of Corrections (02/17/2006) sp-5988, 129 P3d 887

     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

LLOYD KINEGAK, )
) Supreme Court No. S- 11315
Appellant,)
) Superior Court No.
v. ) 4BE-03-148 CI
)
STATE OF ALASKA, DEPARTMENT) O P I N I O N
OF CORRECTIONS, )
)
Appellee. ) [No. 5988 - February 17, 2006]
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Dale O. Curda, Judge.

          Appearances:  Jim J. Valcarce, Christopher R.
          Cooke,  Cooke, Roosa & Valcarce, Bethel,  for
          Appellant.  Dale W. House, Assistant Attorney
          General,   Anchorage,   James   L.   Baldwin,
          Assistant Attorney General, Juneau, Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.
          FABE,  Justice,  with whom CARPENETI,  Justice,  joins,
dissenting.


I.   INTRODUCTION
          Because  of  an oversight the Department of Corrections
did  not realize that Lloyd Kinegaks prison sentences were to run
concurrently,  and  imprisoned  him  for  seven  days  after  his
sentences  ended.   After being released, Kinegak  sued  DOC  for
damages.   DOC  claimed sovereign immunity under AS 09.50.250(3),
which  immunizes the state against claims arising  out  of  false
imprisonment.  Kinegak argued that DOC was not immune because  it
breached a duty to calculate his sentence with due care,  a  duty
he  said  existed  independently of the false imprisonment  tort.
Converting  DOCs  motion to dismiss into  a  motion  for  summary
judgment,  the  superior  court  rejected  Kinegaks  argument  as
semantics and entered judgment for DOC.  We affirm.
II.  FACTS AND PROCEEDINGS
          The  facts  are  mostly undisputed.   Kinegak  pled  no
contest  to  misdemeanor  charges  and  was  sentenced   to   two
concurrent sentences of sixty days, with twenty days off for good
behavior  and  additional  credit  for  time  served.   With  the
credits, Kinegak should have been released on July 3, 2002.   But
Kinegak was not released on that day.  On July 9 Kinegak  sent  a
letter  to his probation officer pointing out the error,  and  he
was  released  the next day.  He served a total  of  seven  extra
days.
          Ten  months  later, Kinegak filed a civil suit  against
DOC.   The complaint alleged that staff members employed  by  the
State  of  Alaska,  Department  of Correction[s],  at  the  Yukon
Kuskokwim  Correctional Center negligently  failed  to  correctly
compute plaintiffs release date[,] resulting in the negligent and
unjustified  continued incarceration of Lloyd Kinegak  for  seven
days.   This  complaint further alleged greater than  $50,000  in
economic  and  non-economic injuries based on  Kinegaks  loss  of
liberty.  According to the complaint, this injury was
          caused  by  the negligence of the  defendant,
          including . . . failing to correctly  compute
          Lloyd   Kinegaks   minimum  release   date[;]
          failure to maintain accurate records; failing
          to  maintain time accountings; . . .  failing
          to  provide  proper oversight and supervision
          of  staff[;] and failing to use due care  and
          caution in the incarceration of inmates.
          
          DOC  answered  and  admitted most of  the  allegations.
According  to  the amended answer, due to irregularities  in  the
judgment DOC employees overlooked that plaintiffs sentences  were
to  run  concurrently, and as a result plaintiff was not released
on  his proper release date.  The answer also pleaded affirmative
defenses based on AS 09.50.250, the sovereign immunity statute.
          DOC  then  moved  to  dismiss under Alaska  Civil  Rule
12(b)(6).  Kinegak opposed the motion and cross-moved for partial
summary  judgment  as  to  liability and  for  a  finding  of  no
immunity.  The superior court treated DOCs motion as a motion for
summary  judgment, granted the motion, and entered  judgment  for
DOC.   Specifically, the superior court held that while DOC  owed
Kinegak  a  duty  of  care, DOC had sovereign immunity  under  AS
09.50.250.   Kinegak had argued that his claim had an independent
basis in negligence, and that therefore it did not arise from the
intentional tort of false imprisonment within the meaning of  the
statute.   Superior  Court  Judge Dale O.  Curda  rejected  this,
holding that
          [i]t  is  semantics to argue that one suffers
          from  clerical negligence when that negligent
          act  occurs in the true injurys causal chain.
          Kinegaks damages do not spring from DOCs lack
          of   quality  clerks,  it  springs  from  his
          physical incarceration at YKCC on dates  that
          he  was not legally allowed to be in custody.
          His   claim,  therefore,  is  one  for  false
          imprisonment.
          
III. DISCUSSION
          Because  this  is  an  appeal of  a  grant  of  summary
judgment,  our  review is de novo.1  We usually consider  whether
there   is   a  tort  duty  before  deciding  sovereign  immunity
questions,  but this is not always our practice.2  In  this  case
resolving the duty issue is unnecessary because we conclude  that
DOC is immune under AS 09.50.250(3).
          Alaska  Statute  09.50.250 waives the  states  immunity
against  certain lawsuits but contains an explicit exception  for
suits  arising out of false imprisonment:  an action may  not  be
brought  if  the claim . . . (3) arises out of assault,  battery,
false imprisonment, false arrest, malicious prosecution, abuse of
process,   libel,   slander,   misrepresentation,   deceit,    or
interference with contract rights[.]  The parties appear to agree
that  as  an  agent  of  the state, DOC is entitled  to  whatever
immunities  the  state has.3  The question presented  is  whether
Kinegaks  negligence claim arises out of . . . false imprisonment
within  the  meaning  of  AS  09.50.250(3).   In  answering  this
question, we will construe the states immunity narrowly,  because
liability  is the rule, immunity the exception in claims  against
the state.4
          Kinegaks main argument is that his complaint should  be
reinstated under Zerbe v. State.5  Zerbes criminal case had  been
dismissed,  but state employees allegedly failed  to  inform  the
judge of the dismissal, and the judge issued a bench warrant  for
Zerbes  arrest.6   After Zerbe was arrested and jailed  for  nine
hours  without  being allowed to make phone  calls,  he  filed  a
complaint  against  the  state  that  was  couched  in  terms  of
negligence.7   The  state  claimed it was  immune,  arguing  that
Zerbes  claims arose out of false imprisonment and  false  arrest
within  the meaning of AS 09.50.250(3).  The court rejected  this
argument   and   reinstated  Zerbes  complaint.  Citing   federal
authorities  construing analogous language in  the  Federal  Tort
Claims  Act, the court held that it was negligent record keeping,
rather  than  false imprisonment, which caused Zerbes  injuries.8
The  decision concluded with a broad statement about  the  states
liability  for  false  arrests or false imprisonments  caused  by
bureaucratic carelessness:
               Today,   when   various   branches    of
          government  collect and keep copious  records
          concerning numerous aspects of the  lives  of
          ordinary citizens, we are unwilling  to  deny
          recourse to those hapless people whose  lives
          are  disrupted  because  of  careless  record
               keeping or poorly programmed computers.  We
          see   no  justification  for  immunizing  the
          government from the damaging consequences  of
          its  clerical employees failure  to  exercise
          due care.[9]
          
          Relying  on  this  passage,  Kinegak  argues  that  his
imprisonment  was  also caused by negligent  or  careless  record
keeping,  and that his claim should therefore be reinstated  just
as  Zerbes was.  DOC appears to concede that the complaint should
be  reinstated  if Zerbe is good law, but argues that  Zerbe  has
either  been  overruled  by  Stephens  v.  State,  Department  of
Revenue,10 and Waskey v. Municipality of Anchorage,11 or that  it
ought to be overruled now in light of post-Zerbe decisions by the
United States Supreme Court.
          Although  we  do  not agree with DOC  that  Waskey  and
Stephens  have  overruled Zerbe,12 we do  agree  that  we  should
overrule  Zerbe  now  based on the federal  case  law.   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.13  We believe this standard  is
met  here, based primarily on changes in the federal cases in the
years since Zerbe was decided.
          The Federal Tort Claims Act has language that is nearly
identical  to  the  language  in  AS  09.50.250(3),  and  federal
decisions  construing  the  FTCA  are  persuasive  authority   in
construing  the  Alaska statute.14  When Zerbe  was  decided,  it
relied on a federal court of appeals decision, Quinones v. United
States,  construing the federal governments immunity  for  claims
arising out of libel and slander.15  Quinones was a former federal
employee  who  alleged that he was injured  when  the  government
provided   false  information  about  Quinones  to  a   potential
employer.16   Quinones sued the government for  negligent  record
keeping,  a tort in Pennsylvania, and the Third Circuit said  the
federal  governments libel/slander immunity  did  not  cover  the
claim  because  the  elements required to make  out  a  negligent
record-keeping claim were different from the elements  for  libel
or  slander.17   Zerbe said it would adopt the reasoning  of  the
Third  Circuit  in  the  Quinones case,  and  hold  that  it  was
negligent  record keeping, rather than false imprisonment,  which
caused  Zerbes  injuries.18  On this basis, the  court  in  Zerbe
rejected the states immunity defense.
          Since  Zerbe  and  Quinones, federal  law  has  changed
considerably.   The most recent relevant decision by  the  United
States Supreme Court is Sheridan v. United States.19  In Sheridan
an  obviously intoxicated off-duty serviceman fired a gun into  a
car  passing  by him.20  The plaintiff claimed that  the  federal
government  breached  its  good Samaritan  duty  to  control  the
serviceman,   because  several  government  employees   saw   him
wandering  around  with a loaded weapon and  did  not  alert  the
authorities.21  In response, the government sought to dismiss the
suit  based on the immunity for claims arising out of assault  or
battery.   The Court rejected this argument, on the grounds  that
          (1) the FTCA as a whole (including the intentional torts
immunity) applied only if the injury was caused by acts committed
within  the  scope  of government employment,  and  the  off-duty
serviceman was acting outside that scope,22 and (2) the basis  of
liability  was  the other government employees  breach  of  their
independent  good Samaritan duties.23  On the latter  point,  the
Court  said  that  Congress, by immunizing  the  government  from
assault and battery, could not have intended to make recovery for
good  Samaritan breaches depend on whether the breach involved  a
failure to protect the plaintiff from another person who happened
to  be  a federal employee, and who happened to act intentionally
instead of negligently.24
          The  majoritys rationale in Sheridan does not apply  to
this  case.   Here  the person responsible  for  the  release  of
Kinegak is the supervisor of the correctional center where he was
held.   The supervisor thus is the person who committed the  tort
of false imprisonment by failing to timely release Kinegak.25  In
committing this tort the supervisor was acting within the  course
and  scope  of  his or her state employment and  thus  was  in  a
different position from the off-duty serviceman in Sheridan.  But
Justice  Kennedy wrote a concurrence in Sheridan  that  addresses
cases  in  which  the  individual might be a government  employee
acting within the scope of his or her employment.
          Justice  Kennedy accepted the majoritys  argument  that
injuries  can arise from multiple causes, and that by  immunizing
the government from intentional torts, Congress did not intend to
immunize  the government from claims based on breaches  of  other
common-law  duties  (such  as  duties  to  protect  others   from
dangerous  persons), even in cases where the immediate  cause  of
injury  was  a federal employee committing one of the  torts  for
which  immunity was specifically retained in the  FTCA  (such  as
assault  or  battery).26  But Justice Kennedy did  not  focus  on
whether the tortfeasor was acting within the scope of his or  her
employment,  and  he  imposed one additional requirement  on  the
plaintiff  that  the  majority  had  declined  to  address.    He
concluded that the duty underlying the cause of action should  be
a  separate  duty independent from the employment  relation   and
not,  for  example,  a  claim  of negligent  supervision  of  the
employee.27  Without this additional requirement, litigants could
avoid  the  substance of the exception because it is likely  that
many,  if  not  all,  intentional torts of  Government  employees
plausibly  could be ascribed to the negligence of the tortfeasors
supervisor.  To allow such claims would frustrate the purposes of
the  exception.28   In  this  way, Justice  Kennedys  concurrence
establishes  two prerequisites to recovery:  the  plaintiff  must
identify  a government duty that is distinct from the intentional
tort,  but  that  is  also independent of the intentional  actors
employment relationship with the government.29
          Since   Sheridan,  Justice  Kennedys  concurrence   has
carried  the  day  in most federal courts.  Most federal  circuit
courts  that  have  addressed the question  have  said  that  the
government  is  liable  for  harm caused  by  intentional  torts,
provided the government breached some independent duty that has a
basis  other than negligent supervision, training, or  hiring  of
          government employees.30
          These  federal cases persuade us of two things.  First,
Kinegaks claim that DOC negligently supervised the employees  who
calculated  his prison term (a claim not founded on  anything  in
Zerbe) is contrary to the weight of federal authority.  We  agree
with  Justice  Kennedy  and the other  federal  judges  who  have
concluded  that  allowing  negligent  supervision  claims  to  go
forward   would  be  contrary  to  the  legislatures  intent   in
immunizing the government from certain torts.  Government  almost
inevitably acts through employees supervised or hired by  others,
which  means that negligent supervision (or negligent  hiring  or
negligent training) could be alleged in most cases where a  state
employee  commits  one of the torts listed  in  AS  09.50.250(3).
This  would  eliminate much conduct that fairly falls within  the
scope of the statutory immunity, and so we are persuaded that the
superior  court properly dismissed Kinegaks negligent supervision
claim.
          Second,  the current state of federal law helps clearly
convince[]  us (within the meaning of the standard for overruling
precedents)  that  Zerbe  was wrongly decided  and  ought  to  be
overruled.31   In Sheridan both the majority and Justice  Kennedy
concluded  that  Congress,  in  immunizing  the  government  from
assault  claims,  did not intend to immunize claims  based  on  a
different  duty,32  such as the good Samaritan  duty  to  prevent
others  from  coming to harm  even in cases where  the  immediate
cause  of  harm happened to be an assault by a federal  employee.
Justice  Kennedy referred to multiple causes for the  same  tort,
and  the  majority said it would seem perverse to  exonerate  the
Government because of the happenstance that [the serviceman]  was
on a federal payroll.33
          But here it is hardly happenstance that the Zerbe-based
tort pleaded by Kinegak also involved a false imprisonment.   The
conduct  involved in record keeping by DOC clerks is an  integral
part  of  the states imprisonment function.  The Zerbe theory  of
liability  under  the facts and circumstances  of  this  case  is
dependent on the employment status of the person responsible  for
the   false   imprisonment,  given  the  prison   superintendents
necessary  reliance  on  accurate  records  and  accurate  record
interpretation.    Moreover,  the  facts   alleged   by   Kinegak
constitute  false imprisonment, and would have constituted  false
imprisonment  when the FTCA and AS 09.50.250 were  enacted.   The
original  version  of  the  Restatement  of  Torts,  the  version
available  when the FTCA and AS 09.50.250 were enacted,  requires
the  plaintiff  to  establish that the defendant  knew  that  the
victim  was  imprisoned, without regard to whether the defendants
act   was  knowing,  reckless,  negligent,  or  ignorant.34   The
Restatement  (Second),  published  only  a  few  years  after  AS
09.50.250  was  enacted,  does not materially  change  the  basic
elements  of  the  tort,35  but it does add  language  explicitly
stating  that  failure to release a prisoner  on  time  is  false
imprisonment.36   In  addition,  numerous  cases  establish  that
failure to release a prisoner was false imprisonment long  before
the FTCA and AS 09.50.250 were enacted.37
          And  once it is established that DOCs negligent  record
          keeping amounts to a reasonably well-known predicate for false
imprisonment,  Kinegaks  claim fails.  Kinegaks  claim  is  quite
unlike  the  claim  in Sheridan, where the wrong  underlying  the
claim    that  the  government  failed  to  control   an   armed,
intoxicated  person  was practically and morally  different  from
the  wrong contemplated by the immunity for assault and  battery.
(That  the  two wrongs were united in a particular case  was  the
result  of  the  happenstance that the  dangerous  person  was  a
federal employee who ended up committing an enumerated tort.38)
          Our  understanding of AS 09.50.250(3) is  supported  by
the text of the statute, which applies to a claim that arises out
of  .  .  .  false  imprisonment as opposed to a claim  of  false
imprisonment.   By  using  this language,  we  believe  that  the
legislature  that enacted AS 09.50.250(3) (and the Congress  that
enacted  the  FTCA) meant to immunize the government from  claims
arising   out  of  the  conduct  constituting  reasonably   well-
recognized forms of false imprisonment.  We also find support  in
the  only federal cases we know of concerning failures to release
an  inmate  on  time.  In these cases, claims of negligence  were
rejected   as  essentially  identical  to  a  claim   for   false
imprisonment.39   Finally,  common sense  supports  our  reading:
retaining state immunity would be useless if plaintiffs could use
a  different theory to attack conduct that would be traditionally
understood as false imprisonment and nothing more.  Just as  most
federal courts have characterized negligent supervision claims as
attempts to avoid the substance of the immunity provisions,40  we
think  Kinegaks  negligent record-keeping claim would  avoid  the
substance  and  frustrate the purposes of the false  imprisonment
immunity.
          The  one  clear  thing  about  this  list  of
          [intentional  tort] exceptions  is  that  the
          plaintiffs characterization of his action  as
          one  for negligence will not control and that
          the  courts will ignore this label and  treat
          the   claim  as  one  within  the   list   of
          exceptions  if  the  pleaded  facts  seem  to
          warrant.[41]
          
          This  decision should not be read as an endorsement  of
DOCs  conduct,  which the superior court described as  abhorrent,
and which would be even more abhorrent in a case involving a more
significant  miscalculation of a prisoners sentence.   It  should
also  not  be read as making the state immune in all cases  where
its  tortious  acts could have been pleaded as one of  the  torts
enumerated  in  AS 09.50.250(3).  There may be  cases  where  the
states negligence constitutes a truly distinct wrong, even though
the  victim  was  injured  because  of  an  act  constituting  an
enumerated  tort.42  We hold only that the state has  shown  that
there  is  no  wrong  claimed in this  case  that  is  materially
distinct  from  false imprisonment, and that Kinegaks  claim  was
therefore properly dismissed.
IV.  CONCLUSION
          The judgment of the superior court is AFFIRMED.
FABE, Justice, with whom CARPENETI, Justice, joins, dissenting.
          I  respectfully dissent because I do not  believe  that
the courts decision to overturn Zerbe v. State1 complies with our
rule  of  stare decisis.  Under this well-settled rule,  we  must
adhere  to  our precedents unless clearly convinced  (1)  that  a
decision was originally erroneous or is no longer sound, and  (2)
that  more  good  than  harm would result  from  overruling  it.2
Neither  federal  case  law  nor the legislative  history  of  AS
09.50.250  indicates that Zerbe is no longer sound.  Furthermore,
overruling  this  decision is likely to result  in  significantly
more  harm  than good, because doing so removes an incentive  for
prison  officials to avoid negligence in their most basic duties,
and invites precisely the type of negligence that led to Kinegaks
unjust imprisonment.  Because I would adhere to our rule of stare
decisis,  and  hold that AS 09.50.250(3) does  not  immunize  the
state  from Kinegaks claim, I would reverse the judgment  of  the
superior court.
I.   Federal Case Law
          When  we  held  in  Zerbe that an  action  sounding  in
negligent record keeping, rather than false imprisonment3 was not
barred  by  Alaskas  sovereign immunity statute,4  we  looked  to
several  federal  cases interpreting 28 U.S.C.   2680(h).5   This
does  not  mean, however, that Zerbes soundness is contingent  on
agreement  with the majority of federal jurisdictions.   Although
we  acknowledged in Zerbe that the federal cases barring recovery
under   2680(h)  are  in  the numerical majority,  we  explicitly
aligned  ourselves with the better reasoned minority  of  cases.6
Thus, the appropriate inquiry is not whether Zerbe represents the
majority  rule, but rather whether its view of sovereign immunity
still  falls within the broad spectrum of federal interpretations
of the FTCA.
     A.   The independent duty doctrine
          Since Zerbe was decided, federal courts have recognized
an  independent duty exception to sovereign immunity.  Under this
exception,  a  plaintiff may bring a claim of negligence  against
the United States if the underlying duty does not derive from the
torts  listed  in   2680(h).7  The Supreme Court recognized  this
exception  in Sheridan v. United States, but it did  not  resolve
the question whether the FTCA bars negligence claims based on the
tortfeasors status as a government employee.8
          Since  Sheridan, the majority of federal  jurisdictions
that  have addressed this issue have declined to permit negligent
supervision claims against the government or have suggested  that
such claims would be barred if they were brought.9  But the Ninth
Circuit,  and  a  district  court  in  the  First  Circuit,  have
concluded that these claims are not barred.10  The D.C.  Circuit,
like  the United States Supreme Court, has so far refrained  from
deciding  whether the government can be held liable for negligent
hiring  and supervision.11  Finally, the Third Circuit has  taken
an  intermediate  position, venturing that  even  if  the  United
States cannot be held liable for [the tortfeasors] actions  based
on  its status as his employer, . . . it may be without sovereign
immunity for negligence by other [government] employees, who were
within  the  scope of their own employment, in not  stopping  the
injurious behavior.12
          In   sum,   although   FTCA  case   law   has   evolved
significantly  since Zerbe was decided, and  Zerbe  continues  to
represent  the minority view, the conclusion that the  FTCA  does
not  bar  negligence  claims based on the tortfeasors  employment
relationship  with  the  government  has  not  been   foreclosed.
Because  some federal courts still maintain that such claims  are
not  barred, Zerbes position remains plausible in the context  of
FTCA case law.
     B.   False imprisonment cases
          Moreover,   the   vast  majority   of   federal   false
imprisonment cases involve claims that the plaintiff should never
have  been arrested at all, rather than that the plaintiff should
have been released earlier.  Wrongful arrest cases provide little
guidance  to  us in deciding this case because they involve  very
different policy implications from failure-to-release cases.  The
decision  whether  to arrest someone must often  be  taken  on  a
moments  notice  with incomplete information.  For  that  reason,
permitting plaintiffs to sue the government for good-faith arrest
decisions that later prove to be incorrect could endanger  public
safety  by  deterring  the  police from  making  proper  arrests.
Requiring  state officials to release inmates on time creates  no
such  danger:   If  the  state  officials  are  keeping  accurate
records,  the  inmates  release date is no surprise,  and  indeed
requires  no decision at all from prison officials.   The  public
safety  implications  of releasing the prisoner  have  presumably
been taken into account by the sentencing court.
          There  appear  to  be no cases that analyze  the  false
imprisonment  provision of  2680(h) in light of  the  independent
duty  exception, and the two cases cited in footnote  39  of  the
courts  opinion  provide little guidance on  the  subject.   Both
cases  involve  claims  similar  to  Kinegaks,  and  both  courts
conclude  that  the  claims  are essentially  .  .  .  for  false
imprisonment,13  but neither case discusses the independent  duty
exception.  Because these cases simply assume what they  conclude
that a claim based on the failure to release an inmate on time is
necessarily  a  false imprisonment claim  and  because  the  vast
majority of federal jurisdictions have not addressed this  issue,
it  is likely that a claim analogous to Kinegaks would be allowed
to proceed in some federal jurisdictions.14  For this reason, the
two  federal  cases concerning failure to release  an  inmate  on
time, like FTCA cases generally, have not left Zerbe a remnant of
abandoned doctrine.15
II.  Legislative History
          The   legislative  history  of  AS  09.50.250  is  more
revealing  for what has not happened than for what  has.   As  of
October  2004 the legislature had amended the statute five  times
without  attempting to override Zerbe.16  It amended the  statute
          again in 200517 while the present case was pending, but again
made  no  attempt  to  override Zerbe.   Thus,  although  it  has
repeatedly modified the statute, the legislature has done nothing
to indicate that Zerbe was wrongly decided.
III. More Harm than Good Would Result from Overruling Zerbe.
          Even  if  there had been a sea change in  federal  law,
this alone would not be sufficient to overrule Zerbe.  The second
prong  of  this  courts stare decisis rule forbids  overruling  a
prior case unless the court is clearly convinced . . . that  more
good  than  harm would result from a departure from  precedent.18
We have applied this standard repeatedly in a number of different
areas of law.19
          The  courts half-hearted attempt to address this  prong
a  single  paragraph relegated to a footnote  is both perfunctory
and  tautological.   To support its claim that  overruling  Zerbe
would  do more good than harm, the court argues that the decision
is  outmoded in light of Justice Kennedys rationale in  Sheridan,
and  that failing to overrule it would continue to cause outcomes
that  are  contrary to the legislative requirement  that  certain
categories  of torts may not be maintained against  the  state.20
The  claim that, unlike the majority of the United States Supreme
Court,  we  should adopt Justice Kennedys view of the independent
duty  doctrine  is  no  more  than a restatement  of  the  courts
argument  that Zerbe is no longer sound in light of federal  case
law.  Similarly, the claim that Zerbe cause[s] outcomes that  are
contrary  to the legislative requirement that certain  categories
of  torts  may not be maintained against the state,21 is  nothing
more  than a restatement of the courts conclusion that Zerbe  was
wrongly  decided.22  And this conclusion is also  unsupported  by
the  states experience since 1978.  Alaska courts have  not  been
faced  with a deluge of claims based on prison officials  failure
to  release inmates on time,23 and they continue to reject claims
arising from the torts listed in AS 09.50.250(3).24
          If   liability  for  negligence  prevented   DOC   from
fulfilling its function, as liability for false arrest  might  do
in  the  context  of law enforcement, overruling Zerbe  might  be
beneficial.  But when DOC is responsible for releasing a prisoner
on  a  predetermined date, its duties are almost synonymous  with
avoiding negligence.  Such a release, based on a decision made by
a  sentencing court and kept on file by DOC, presents very little
room  for discretion: either the prisoners sentence has ended  or
it  has  not.25   For  this reason, there is no  set  of  choices
analogous  to  proper arrest decisions that could be  chilled  by
imposing liability on DOC for negligently miscalculating  inmates
sentences.
          Finally,  overruling Zerbe could do  significant  harm,
because  it  would eliminate an incentive for DOC to fulfill  its
duties   in  a  non-negligent  manner.   As  the  courts  opinion
concedes,  DOCs conduct in the present case has been abhorrent,26
and if the miscalculation had been greater, it would be even more
abhorrent.27  But, by shielding DOC from liability for  negligent
record keeping, the courts opinion invites more misconduct.   The
most   likely  practical  consequence  of  overruling  Zerbe   is
therefore  an  increase in negligence on the  part  of  DOC   and
          future miscalculations may involve periods of unjust imprisonment
longer than seven days.
          In  sum, the courts decision to overrule Zerbe does not
comply  with our rule of stare decisis.  Changes in federal  case
law  have  not rendered Zerbe a remnant of abandoned  doctrine,28
the  legislature  has  made no effort to  override  the  case  by
statute, and the main foreseeable consequence of abandoning  this
precedent  is an increase in negligent misconduct with regard  to
DOCs most basic duties.  I therefore respectfully dissent.
_______________________________
     1    Matanuska Elec. Assn, Inc. v. Chugach Elec. Assn, Inc.,
99 P.3d 553, 558 (Alaska 2004).

     2     Kiokun v. State, Dept of Pub. Safety, 74 P.3d 209, 213
(Alaska 2003).

     3     See  Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d  250,
258-59 (Alaska 2000).

     4     Native Vill. of Eklutna v. Alaska R.R. Corp., 87  P.3d
41,  49  (Alaska  2004).   See also 3  Richard  J.  Pierce,  Jr.,
Administrative Law Treatise  19.4, at 1454 (4th ed. 2002) (urging
courts  to narrow the scope of sovereign immunity for intentional
torts);  United States v. Horn, 29 F.3d 754, 762  n.7  (1st  Cir.
1994)  ([T]he scholarly community has been overwhelmingly hostile
to the [immunity] doctrine.).

     5    578 P.2d 597 (Alaska 1978).

     6    Id. at 598.

     7    Id.

     8    Id. at 601.

     9    Id. (footnote omitted).

     10    746 P.2d 908 (Alaska 1987).

     11    909 P.2d 342 (Alaska 1996).

     12     Although Stephens and Waskey declared Zerbe overruled
to  the extent that it was in conflict with those decisions, both
cases held only that the state does not have a common-law duty to
use  due  care  in  initiating  civil  or  criminal  proceedings.
Stephens,  746 P.2d at 912 n.5 (We believe that, in general,  the
state does not owe its citizens a duty of care to proceed without
error  when  it brings legal action against them. To  the  extent
that this contradicts our decision in Zerbe . . . , that case  is
overruled.); Waskey, 909 P.2d at 344 (finding above passage  from
Stephens  to  be  applicable to this case).  Neither  Waskey  nor
Stephens construes the immunity statute at issue in Zerbe and  in
this  case,  and  neither case purports to speak to  a  situation
where  a  prisoner  is held beyond his term of  confinement.   We
therefore  think it fair to read neither Waskey nor  Stephens  as
overruling Zerbe, at least as Zerbe might apply here.

     13    State v. Fremgen, 914 P.2d 1244, 1245-46 (Alaska 1996).

     14    See P.G. v. State, Dept of Health & Human Servs., Div.
of  Family  & Youth Servs., 4 P.3d 326, 335 (Alaska  2000).   The
exceptions  to  the FTCA are at 28 U.S.C.  2680.  Subsection  (h)
provides  that  the federal governments waiver of immunity  shall
not apply to:  [a]ny claim arising out of assault, battery, false
imprisonment,  false  arrest,  malicious  prosecution,  abuse  of
process,   libel,   slander,   misrepresentation,   deceit,    or
interference with contract rights[.]

     15     Quinones  v. United States, 492 F.2d  1269  (3d  Cir.
1974); see also Zerbe, 578 P.2d at 600-01 (citing Quinones).

     16    Quinones, 492 F.2d at 1272.

     17    Id. at 1280-81.

     18    Zerbe, 578 P.2d at 601.

     19    487 U.S. 392 (1988).

     20    Id. at 393.

     21    Id. at 394.

     22    Id. at 400-01 (relying on 28 U.S.C.  1346(b), which is
incorporated  by reference in 28 U.S.C.  2680(h)).   Although  AS
09.50.250  is  mostly  identical  to  the  FTCA,  the  scope   of
employment  language  in subsection 1346(b)  is  absent  from  AS
09.50.250.

     23    Id. at 401-02.

     24    Id. at 402.

     25     The defendant in a false imprisonment case must  know
that  the  plaintiff is imprisoned but need  not  know  that  the
imprisonment is wrongful.  See authorities discussed infra  pages
14-15.

     26    Id. at 406.

     27     Id.  The majority had said: Because [the servicemans]
employment  status  is  irrelevant to  the  outcome,  it  is  not
appropriate  in  this case to consider whether negligent  hiring,
negligent supervision, or negligent training may ever provide the
basis  for liability under the FTCA for a foreseeable assault  or
battery by a Government employee.  Id. at 403 n.8.

     28    Id. at 407 (emphasis added).

     29     Justice Kennedy stressed the latter by expressing  it
several  times  in  slightly  different  ways:  [A]  court   must
ascertain whether the alleged negligence was . . . the breach  of
some separate duty independent from the employment relation.  Id.
at 406. On this theory [the good Samaritan duty], the Governments
negligence  is  independent of its employment  relationship  with
[the off-duty serviceman].  Id. at 407.  This theory of liability
does  not  depend  on  the employment status of  the  intentional
tortfeasor.  Id. at 407.

     30     For example, in Bembenista v. United States, 866 F.2d
493  (D.C.  Cir. 1989), the plaintiff was assaulted by a  medical
technician  while a patient in a government medical  center,  and
the  court  held  that the government was not immune.   This  was
because the governments duty of protective care arose out of  its
special relationship with [plaintiff]; the court went on to  note
that [t]his theory of liability does not depend on the employment
status  of  the  intentional tortfeasor.   Id.  at  498  (quoting
Sheridan,  487  U.S.  at  407 (Kennedy, J.,  concurring)).   Most
federal courts have specifically agreed with Justice Kennedy that
negligent hiring and supervision claims should be rejected.   See
Guccione  v.  United States, 847 F.2d 1031, 1037 (2d  Cir.  1988)
(duty  must be independent of the governments supervision of  its
employees),  rehg denied, 878 F.2d 32 (2d Cir. 1989);  Leleux  v.
United  States,  178  F.3d 750, 757 (5th  Cir.  1999)  (similar);
Billingsley v. United States, 251 F.3d 696, 698 (8th  Cir.  2001)
(similar);  Borawski  v. Henderson, 265  F.  Supp.  2d  475,  486
(D.N.J. 2003) (similar).  Cf. Franklin v. United States, 992 F.2d
1492,  1499  n.6  (10th  Cir. 1993) (doubtful  whether  negligent
supervision  or training claim would fall outside the intentional
torts  immunity,  citing Guccione); LM  ex.  rel.  KM  v.  United
States,  344  F.3d 695, 700 (7th Cir. 2003) (rejecting  negligent
supervision  and hiring claims, where district court  in  another
case  had  already  determined that negligent  supervision  claim
against the government based on same actors conduct was barred by
intentional  torts immunity) (citing Ryan v. United  States,  156
F.  Supp. 2d  900 (N.D. Ill. 2001)).  The one federal court  that
has   embraced   negligent  supervision  claims,  notwithstanding
Justice  Kennedys  Sheridan concurrence, is  the  Ninth  Circuit,
which  has  upheld claims of negligent supervision of intentional
actors  and  rejected Justice Kennedys position.  See Bennett  v.
United  States, 803 F.2d 1502 (9th Cir. 1986); Senger  v.  United
States, 103 F.3d 1437 (9th Cir. 1996).

     31    We also believe that the more good than harm element of
our  test for overruling a prior decision is satisfied.  Adopting
Justice  Kennedys  Sheridan  rationale  provides  a  method   for
distinguishing  between  cases  that  plausibly  arise   out   of
immunized  torts.  Some such cases should be given immunity,  but
others  should not.  Justice Kennedys Sheridan rationale  can  be
employed  to  distinguish these two categories in a  logical  way
that is consistent with the language of the statute whereas Zerbe
contained no such method.  If Zerbe were not overruled  it  would
continue  to  cause outcomes that are contrary to the legislative
requirement  that  certain  categories  of  torts  may   not   be
maintained against the state.

     32    Sheridan, 487 U.S. at 406 (Kennedy, J., concurring).

     33    Id.; id. at 402 (opinion of the Court).

     34    Restatement of Torts  35 (1934).

     35    Restatement (Second) of Torts  35 (1965); see also Zok
v.  State,  903  P.2d  574,  577  n.4  (Alaska  1995)  (following
definition  of  false  imprisonment in  Restatement  (Second)  of
Torts).

     36     Id.   45;  see also id.  45 cmt. a, illus.  1  (A  is
confined in jail under a sentence for a term.  At the end of  the
term  B,  the  jailor, is under a legal duty to  release  A,  but
refuses to do so.  B is subject to liability to A.).

     37    See, e.g., Bath v. Metcalf, 14 N.E. 133, 136-37 (Mass.
1887)  (Holmes, J.); Weigel v. McCloskey, 166 S.W. 944, 946 (Ark.
1914); Housman v. Byrne, 115 P.2d 673 (Wash. 1941).

     38    Sheridan, 487 U.S. at 402.

     39     Maurello v. United States, 111 F. Supp. 2d  475,  476
(D.N.J. 2000) (Maurellos claims . . . are essentially a claim for
false imprisonment); Puccini v. United States, 978 F. Supp.  760,
761  (N.D.  Ill. 1997) (plaintiffs claim is essentially  one  for
false imprisonment).

     40    Sheridan, 487 U.S. at 407 (Kennedy, J., concurring).

     41    Prosser & Keeton on the Law of Torts  131, at 1039 (5th
ed. 1984) (footnote omitted).

     42    Cf. Sheridan, supra (federal government was not immune
where  government  employee injured plaintiffs by  shooting  into
their  car; notwithstanding its immunity for assault and battery,
government  was  liable for its breach of  its  independent  good
Samaritan  duty  to disarm the employee); Lane v. United  States,
225  F. Supp. 850, 852-53 (E.D. Va. 1964) (federal government was
not  immune where government surgeon operated on wrong knee, even
though technical[ly] this was a battery).

     1    578 P.2d 597 (Alaska 1978).

     2     State  v. Fremgen, 914 P.2d 1244, 1245 (Alaska  1996).
In  general,  this court do[es] not lightly overrule  [its]  past
decisions.  State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986); see
also  Thomas v. Anchorage Equal Rights Commn, 102 P.3d  937,  943
(Alaska  2004)  (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. )
(quoting Pratt & Whitney Canada, Inc. v. United Techs., 852  P.2d
1173, 1175 (Alaska 1993)).

     3    587 P.2d at 601.

     4    Zerbe, 578 P.2d at 601 (Today, when various branches of
government  collect and keep copious records concerning  numerous
aspects  of  the lives of ordinary citizens, we are unwilling  to
deny  recourse to those hapless people whose lives are  disrupted
because   of   careless  record  keeping  or  poorly   programmed
computers.  We see no justification for immunizing the government
from  the damaging consequences of its clerical employees failure
to exercise due care.).

     5     See  id.  at  598,  599 & n.4 (listing  federal  cases
supporting sovereign immunity); id. at 600-01 (discussing several
cases   allowing  actions  for  negligence  against  the  federal
government).  Like AS 09.50.250(3),  2680(h) immunizes the  state
from [a]ny claim arising out of . . . false imprisonment.

     6    578 P.2d at 599-600.  In Zerbe, we discussed the better
reasoning  of several federal cases.  Id. at 600-01.  See,  e.g.,
Quinones  v.  United States, 492 F.2d 1269, 1276 (3d  Cir.  1974)
(allowing an action for negligent failure to maintain records  to
proceed  where  the  resulting harm was  defamation);  Gibson  v.
United States, 457 F.2d 1391, 1395 (3d Cir. 1972) (permitting  an
action  against  the  government for  negligence  in  failing  to
prevent  a  Job  Corps  trainee  from  assaulting  a  Job   Corps
instructor); Rogers v. United States, 397 F.2d 12, 15  (4th  Cir.
1968)  (allowing  an action for negligence where  the  government
released  the teenage plaintiff from prison, but did not  provide
transportation home, resulting in the plaintiff being trapped and
physically tortured by a third party).

     7    See Sheridan v. United States, 487 U.S. 392, 402 (1988)
(holding  that an action against the United States  for  injuries
that  the  plaintiff sustained when an off-duty serviceman  fired
several  shots  into his automobile was not  barred  by   2680(h)
because  the  government had an independent  duty  to  prevent  a
foreseeably    dangerous   individual   from   wandering    about
unattended).

     8     Unlike Justice Kennedys concurrence, which advocates a
bright-line  rule  forbidding claims that  the  [g]overnment  was
negligent  in  the supervision or selection of the  employee  and
that  the intentional tort occurred as a result, id. at 406,  the
Sheridan  majority  explicitly  declines  to  reach  the   issue:
[b]ecause  [the tortfeasors] employment status is  irrelevant  to
the  outcome,  it  is not appropriate in this  case  to  consider
whether  negligent  hiring, negligent supervision,  or  negligent
training may ever provide a basis for liability under the  [FTCA]
for  a foreseeable assault or battery by a [g]overnment employee.
Id. at 403 n.8.  Although Justice Kennedys position was taken  by
a  plurality in an earlier case, it has never been adopted  by  a
majority of the Supreme Court.  See United States v. Shearer, 473
U.S.  52,  54-58 (1985) (holding, by a plurality, that an  action
based  on negligent supervision of a serviceman who abducted  and
murdered another serviceman was barred by the FTCA).

9     See  LM  ex  rel. KM v. United States, 344  F.3d  695,  699
(7th  Cir.  2003)  (noting that the governments consent  to  suit
under  the  FTCA extends to cases claiming an injury that  is  in
part the result of an intentional tort, so long as the government
negligently allowed the independent tort to occur in a  way  that
is  entirely independent of [the tortfeasors] employment  status)
(citations and quotation marks omitted) (alteration in original);
Billingsley v. United States, 251 F.3d 696, 698 (8th  Cir.  2001)
(concluding  that [t]o find the government liable  for  negligent
hiring  and  supervision of an employee who commits a tort  would
frustrate the purpose of  2680(h)); Leleux v. United States,  178
F.3d  750,  757 (5th Cir. 1999) (noting that Sheridan stands  for
the  principle  that negligence claims related  to  a  Government
employees   2680(h)  intentional  tort  may  proceed  where   the
negligence   arises  out  of  an  independent,  antecedent   duty
unrelated  to the employment relationship between the  tortfeasor
and the United States); Franklin v. United States, 992 F.2d 1492,
1499 n.6 (10th Cir. 1993) (stating that it is doubtful whether  a
claim   ultimately  derive[d]  from  the  governments  employment
relationship  to  the immediate tortfeasors  would  be  permitted
under  2680(h)); Talbert v. United States, 932 F.2d 1064, 1066-67
(4th  Cir.  1991)  (holding that the plaintiffs negligent  record
keeping claim was barred by the FTCA); Guccione v. United States,
847  F.2d  1031, 1037 (2d Cir. 1988) (noting that the independent
duty  doctrine allows mixed claims of negligence and  intentional
conduct  in  the relatively uncommon case in which the negligence
alleged  was  independent of the governments supervision  of  its
employees)  (citation  and quotation marks  omitted);  Verran  v.
United  States,  305 F. Supp. 2d 765, 775-76  (E.D.  Mich.  2004)
(stating  that negligent hiring and supervision claims  involving
an employees intentional tort are barred by the FTCAs intentional
tort  exclusion); Acosta v. United States, 207 F. Supp. 2d  1365,
1368-71 (S.D. Fla. 2001) (concluding that federal courts  do  not
have  jurisdiction over negligent supervision,  negligent  hiring
[and] negligent retention claims against the United States).

     10    See Senger v. United States, 103 F.3d 1437, 1442  (9th
Cir.   1996)  (holding  that   2680(h)  does  not  immunize   the
[g]overnment   from   liability  for   negligently   hiring   and
supervising an employee); Mulloy v. United States, 884  F.  Supp.
622,  630  (D. Mass. 1995) (concluding that nothing  in  Sheridan
logically  requires a rule barring all claims alleging  negligent
hiring and negligent supervision by the government).

     11    See  Bembenista v. United States, 866  F.2d  493,  498
(D.C. Cir. 1989) (We need not reach the more troublesome question
whether  the  government would be liable for the  mere  negligent
retention  and supervision of a medical technician  known  to  be
psychologically disturbed.).

     12    Matsko  v. United States, 372 F.3d 556, 561  (3d  Cir.
2004).  Quinones has not been overruled by the Third Circuit, and
its  emphasis  on the differing elements of the negligence  claim
and the tort of defamation could be viewed as an early version of
the independent duty doctrine.  492 F.2d at 1276.

     13    Maurello  v. United States, 111 F. Supp. 2d  475,  476
(D.N.J.  2000); Puccini v. United States, 978 F. Supp.  760,  761
(N.D. Ill. 1997).

     14    Senger  and Mulloy suggest that a claim like  Kinegaks
could  be  brought  in  the Ninth Circuit  and  the  District  of
Massachusetts  if  the  claim  were  based  on  the   governments
negligence  in supervising the employees responsible for  keeping
records of inmates release dates.  See Senger, 103 F.3d at  1442;
Mulloy, 884 F. Supp. at 630.

     15   State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996).

     16    Ch.  30,  1, SLA 2003; ch. 32,  9, SLA 1997; ch.  119,
1, SLA 1992; ch. 57,  1, SLA 1989; ch. 106,  5, SLA 1986.

17    Ch.  54,   2,  SLA 2005.  The 2005 amendment clarified  the
states   immunity  from  certain  types  of  lawsuits   involving
emergency  medical  quarantines,  and  was  part  of  legislation
defining  the  duties  of the Department  of  Health  and  Social
Services  as  those  duties pertain to public health  and  public
health emergencies and disasters.  Id.

     18   Fremgen, 914 P.2d at 1245.

     19    See,  e.g.,  Lawson v. Lawson, 108  P.3d  883,  887-88
(Alaska  2005) (applying both prongs of the courts stare  decisis
test  to  a  prior  decision permitting judicial promulgation  of
child  support  rules, and declining to overrule  the  decision);
State  v.  Semancik, 99 P.3d 538, 541-43 (Alaska 2004)  (applying
both   prongs  to  a  previous  decision  permitting  a  criminal
defendant  to  challenge  on appeal a  burglary  indictment  that
failed  to identify the defendants intended crime, and overruling
the  decision); State v. Coon, 974 P.2d 386, 394-97 (Alaska 1999)
(applying both prongs to a prior case involving the admission  of
scientific  evidence  under  Alaska Rule  of  Evidence  702,  and
overruling that case).

     20   Slip Op. at 12 n.31.

     21   Slip Op. at 12 n.31.

     22    The  court  echoes  this statement  elsewhere  in  its
opinion, arguing that maintaining Zerbe would prevent courts from
effectively  enforcing  the  states  sovereign  immunity  statute
because  retaining state immunity would be useless if  plaintiffs
could  use  a  different theory to attack conduct that  would  be
traditionally understood as false imprisonment and nothing  more.
Slip Op. at 14.

     23    Only a few cases of this type have arisen since  1978,
and  these  generally involve disputes about the  calculation  of
time  off  for  good behavior, not simple clerical  error.   See,
e.g.,  Jackson v. State, 31 P.3d 105, 108-09 (Alaska  App.  2001)
(construing the statute providing for time off for good  behavior
to  require  that it be offset against composite sentences);  see
also  Charles  v.  State, Mem. Op. & J. No.  4762  (Alaska  App.,
September  24,  2003),  2003 WL 22208498, at  *1  (rejecting  the
plaintiffs  claim  that  his  time  off  for  good  behavior  was
miscalculated  because  the courts own calculations  suggested  a
longer period of imprisonment than DOCs calculations).

     24    See, e.g., Blackburn v. State, Dept of Transp. &  Pub.
Facilities,  103  P.3d  900,  908 (Alaska  2004)  (affirming  the
superior  courts grant of summary judgment for the state  on  the
ground that Blackburns misrepresentation claim was barred  by  AS
09.50.250(3)).

     25    In cases where DOC officials claim that a prisoner has
forfeited time off for good behavior by committing an infraction,
more  room for discretion may be justified, but the present  case
does not require the court to reach this issue.

     26   Slip Op. at 15.

     27    Slip  Op. at 15.  Although the primary harm from  this
type  of negligence is the prisoners unjustified loss of freedom,
it  bears  mentioning that the state also experiences  harm:   in
Kinegaks  case,  the state had to pay the costs of  supporting  a
prisoner for seven extra days.

     28   Fremgen, 914 P.2d at 1245.

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