*1
Walter Guardian ad MERRITT, minor,
for Deborah Ann
Plaintiff-Respondent, Cross-Appellant,
v. Idaho, Defendant-Appellant,
STATE of
Cross-Respondent.
No. 15043.
Supreme Court of Idaho.
Feb.
21 Rаmsden, Quane, Smith, Michael E. father, stating responsi- that he denied all Hull, Boise, Howard & defendant-appel- bility for her care or actions. Deborah was lant, cross-respondent. years eleven Following old at the time. incident, placed Deborah was Mitchell, Thomas A. and Michael J. Vra- legal custody of the for one ble, d’Alene, Coeur for plaintiff-respondent, year. expiration Prior to the of the custo- cross-appellant. order, dy Deborah was returned to her DONALDSON, Chief Justice. father’s home on a trial basis. Her rela- tionship improve with her father seemed to Walter Merritt initiated this action and she following remained at home against the State of Idaho and Bonner expiration However, custody of the order. County guardian as daugh- ad litem for his again the situation at home deteriorated alleged ter Deborah. He they were 15, 1980, first, February and on Deborah ran negligent, in allowing Deborah to be away and inappropriate large February confined in an was at until detention facil- and, second, ity when allowing her to be she turned herself in sub- to the Bonner jected alleged to an assault while so con- asking placed Sheriff’s Office to be fined. prior Bonner settled to trial. in detention. in jail overnight She was held The jury. jury case was tried to a The and returned to her custody father’s special returned a finding verdict the State day. 21, 1980, next Februаry On Deborah negligent of Idaho and 75% away again. ran Deborah’s father did not negligent. Damages were at 25% assessed runaway report file a and it was not imme- $100,000.00. appeal This followed. diately known that she missing. appeal On the State of Idaho contends: 3, Deputy On March Prosecutor Phil (1) that it liability is immune from under accompa- Robinson filed a motion with §§ 6-904(1) (4); (2) I.C. it was nying Koski, affidavit Allen a Depart- entitled to a directed verdict on the issue of worker, ment social asking the court to negligence; (3) that it is entitled to a enter an order of temporary shelter for the new trial any based on following: of the missing still Deborah. An directing order the trial court’s prejudicial admission of placed Deborah be in foster care was testimony, the trial court’s failure to in- signed on March 4. finally Deborah was struct on contributory Deborah’s located on March 7 and was in a negligence, jury misconduct, or excessive foster living home. She had been with a damages. Because we hold that the State 21-year-old during period male that she negligent, Idaho was not as a matter of missing. law, thus, judg- that the trial court’s Pursuant to I.C. 16-1614 and Rule 8 of reversed, ment must be we do not address Rules, the Idaho Juvenile a shelter care rest of the State’s contentions. hearing to determine whether Deborah Idaho, State of should remain in the Depart- (the Department) Health Welfare & first ment was scheduled for Mаrch 10. How- became involved with Deborah Merritt in ever, because Walter Merritt was not parents 1977. Deborah’s were divorced served with notice of hearing, it was lived with her father. Debo- continued until March 12. On March relationship rah’s with her father was trou- magistrate, anticipating that Deborah away bled and she ran from home re- might appear hearing, at the issued a peatedly. Department pursued vari- supplemental provided order which in part: placements ous including pro- for Deborah home, supervision tective “If Merritt placement shall for rea- mother, her placement prior authority natural son fos- without and authori- 5, 1978, ter homes. On December zation from the of Health Sandpoint was found Bowling Alley place- Welfare leave said shelter care carrying letter, signed by notarized prior adjudication ment home to the “(2) grounds matter and the court has reasonable
the above-entitled same, appear believe the child will not grounds same shall be its before court or officers contempt. Upon notification same order; may time the court such peace officer of State Idaho or shall take into subdivision thereof custo- *3 place
dy “(3) the said Deborah Merritt grounds to the court has reasonable will, during in the at that child juvenile her detention facilities believe said County pendency pro- Jail the most ac- or ceeding, to subjected be an environ- jail or facilities avail- cessible detention persons or to effect ment whose agency. to said law able enforcement upon injurious said be to child would Further, upon the occurrence welfare, [;] child’s or said above, shall be released said child “(4) from detention until further order this grounds the court reasonable to has release of child Court. believe that said endanger said or socie- would child 11, skipped March Deborah school On (1980). ty.” I.J.R. 17 foster and failed to return her home. rule, magis- foregoing Based on the March Koski discovered she On provid- trate of Detention issued Order adult at a local motel with an male. was ing that Deborah to remain picked up by the Sand- Deborah was then pend- custody of the Bonner Sheriff Police handed to the point over ing proceedings. Walter Merritt further the Bonner to be de- Sheriff present hearing at the and consented pursuant tained remaining detention at Deborah’s the March 10 Order. fol- county jail. magistrate made the § Pursuant and Rule 17 to I.C. 16-1811 Findings of Fact and Conclusions lowing Rules, hearing the Idaho Juvenile support Law in of his decision to continue on 14 to whether held March determine detention: remain in detention. Deborah should So- child failed to “1. The above-named has Middlemist, Depart- cial worker Warren previous appear hearings set be- representative hearing, ment’s rec- Court, specifically fore back in ommended that be March present care. at the foster Deborah was present- child “2. The above-named has hearing represented and was counsel. parent, away run her Wal- ly from questioned magistrate, When Merritt, rea- the Court has ter away if that she would run she were stated that said child would son to believe placed in returned to her father or foster dur- away parent from remain preferred to remain in and that she care ing pendency proceed- of these jail. ings. may order a Rule court Under run “3. child has The above-named under to be held child away previous shelter from the . following Belote, circumstances: home, Sandy the home reason believe the Court has “(1) away child run from when the has in a not remain child would legal parents, guardian his or custo- pending care further home foster reason to dian and the court has child said proceedings, but that said child will remain believe away a tem- likely run from parents, guardian away his or home. porary shelter legal during pendency custodian the child proceedings, and that such “4. The Court believes appear the Court guardian his will not before parents, absence from may order such time as the custodian would detri- welfare; hearings herein. future his mental to grounds “5. The Court has her cover-alls. He then reasonable used the same arm child, during to believe that the reach into her cover-alls and fondle her pendency proceedings of these will Deborah testified that the inci- breasts. subject to an environment and dent lasted for two or three minutes and persons upon whose effect said that she received a small scratch. She injurious child would be to the reported Deputy the incident to Sheriff child’s welfare.” Biggerstaff on March 27. It is this inci- dent respon- which serves as the basis for magistrate adjudicato- scheduled an negligence dent’s claim. ry hearing (I.C. 16-1608) for determine whether Deborah was within the In negligence, respon order to establish purview (CPA). of the Child Protective Act dent must first show that the State of At that found that legal duty Idaho owed Deborah a and that *4 purview Deborah was within' the of the the State’s actions toward her amounted to custody CPA and that her should be vested duty. a breach of Alegria See v. 28, 1980, Department. in the On March 617, 619, Payonk, 135, 101 Idaho 619 P.2d vesting decree was entered Deborah’s cus- (1980); Keeton, 137 W. Prosser and W. tody period in the for a of not § (5th Ed.1984). Law of Torts Respon year entry. to one from the date of exceed Idaho, dent contends that the State of De possible Depart- Since it was not for the partment Welfare, of Health & owed Debo ment place immediately, Deborah it was duty rah a of reasonable cаre and that it further ordered Deborah be detained duty breached that when it allowed her to Regional Facility at the Wallace Detention inappropriate be confined in an detention pending placement by Department. facility. County The Bonner Sheriff’s Office was Act, Under the Child Protective transport ordered to Deborah to Wallace. Code, Title Ch. the State of Idaho transported by Deborah was the sheriff’s duty provide has a for the welfare and office on March 31. abused, protection of abandoned and ne- meantime, In the Deborah in remained glected coming children. “Each child with- County the Bonner Jail where she was purview receive, in the of this Act shall designed housed a cell prison- for adult home, care, preferably guid- in his own ers. She had no access to a radio or tele- ance promote and control that will his wel- vision and testified that she did not recall fare and the interest best of the State of receiving any reading adja- An material. Idaho, if he is removed from the con- cent cell contained adult offender Richard parents, guardian trol of his or other custo- Hendrickson, charged aggravated with as- dian, adequate the State shall secure care rape. sault and § (1979). recog- for him.” I.C. 16-1601 In
During evening duty, Department, upon of March after nition of adjudicatory hearing, discovering large Deborah’s toilet that Deborah was at jailer community, petition asking overflowed. The released her from the filed a up her cell and told her temporary to clean the mess. court to enter an order of shel- unsupervised He then left her petition direct ter for her. The indicated that jail’s policy contravention of the written missing days Deborah had been for 10 required deputy filed, jailer that a had time that her father had to be in the cellblock at prisoner anyone time a not informed that she had left home, was out of his or her cell. According runaway and that he had not filed a Deborah, returning report as she was to her cell so that the local authorities could emptying bucket, mop picked after Hendrick- up. Respondent have her concedes son called out propriety Department’s and offered her a actions cigarette. up She testified that she in ensuring walked that Deborah was located and care, however, to his cell through placed door and that he reached in shelter he con- opening grabbed thereafter, the door with one arm and Department, tends that duty breached its by allowing Deborah responsible for providing adequate juvenile her to be detained in County the Bonner facilities. “The County Commissioners Respondent admit, however, Jail. does provide shall a detention home or homes that he consented to being Deborah held temporary for the detention children to pending adjudi- court, or, be conducted subject to catory hearing to determine who should approval court, appro- other legal custody of her. priate public agency, provided that such comply provisions shall Deborah was jailed under a con ____” 16-1812A, of section Idaho Code tempt It magistrate, order. § (1979). I.C. 16-1812 Department, who Deborah fact, testimony Jail. In Based on the foregoing, we con at trial indicates that rec clude that once the court ordered Deborah Jail, at the ommended into detention at the Bonner be returned care rather rely to shelter was entitled to on the had statutory than held detention. The sheriffs office to discharge its jurisdiction beginning over at the pursuant duties to court order. who is One custody required by moment she was taken into law to assume the deprive Deborah re another so as to him March 13. I.C. 16-1811. of his normal power self-protection him jail pursuant subject a court order or to mained persons likely to association with to harm hearing. represent after a issued She *5 him, duty has a to reasonable care proceed exercise stage counsel at each ed protect to him from Restatement harm. appeared magistrate be ings and before a §§ (1965). (Second) of Torts 314A and 320 any action was The fore taken. duty applicable to a specifically This Idaho Juvenile was held accordance with jailer penal or to a insti police officer provides guidelines un Rule 17 which §Id. 320. tution. may juvenile into which a court order a der Department The of Health & detention. Department of & Welfare Health authority put a child Welfare has no to responsible held the condi- cannot be detention, authority nor does it have procedures county operating tions child out of without a take a detention Department custo- jails. The did not have fact, Supple In 10 court order. the March 28, until 1980 when dy of Deborah that specifically provided mental Order entered, and, magistrate’s decree was not de child shall be released from “said showing custody, duty of had no absent a until further order of this Court.” tention persons so the conduct of third to control § It protect her from harm. Id. as to § provides 16-1812 that I.C. County’s in- responsibility Bonner was if it facility as a may be used detention complied Bonner Jail sure § 16-1812A. the standards of I.C. meets § set in I.C. 16- with the standards forth requires, among things, section other That facilities. I.C. 1812Afor sight juveniles segregated be § However, County set- Bonner 16-1812. they adult prisoners, of and sound party to this prior tled to trial and is not a materials, reading access to law suit. supervision and observation they receive Respondent men furthеr contends that protect physical and adequate to their ensuring Department negligent was in not was health. tal transported to Wallace respects. in all three that Deborah deficient immediately adjudicato- prisoners, after March 26 to converse with adult able § materials, hearing. I.C. 16-1610 sets forth ry and she reading not have she did procedure requisite disposition when unsupervised, allowing the assault left However, adjudicatory hear- county presented com an is the evidence occur. within court, ing that a child comes rather than demonstrates missioners re- Welfare, That section purview who are of CPA. of Health &
25
quires
Gissell,
judgment
court
issue a written decree
v.
written
is filed. State
containing
findings
287,
(Ct.App.1983).
of fact
conclu-
105 Idaho
“IT HEREBY Adams, IS ORDERED that enson 98 571 v. P.2d (1977) (overruled of Deborah Merritt is committed grounds on other the Idaho of Health Boydstun, Owen v. 102 Idaho P.2d period Welfare for an indeterminate (1981)), judge’s we noted that a bench (1) year entry to exceed one from the may quite remarks different from his or this order. findings. her ultimate written “Bench- marks,
“IT IS FURTHER
sometimes referred to as
ORDERED
tentative
impressions
shows,
said child
of what the evidence
do
Center,
Health
Regional
and Welfare
the dignity
not substitute nor rise to
Idaho,
Wallace,
pending placement by
findings
written
of fact and conclusions of
*6
law,
stated,
of Health and Welfare.
separately
either
embodied
Transportation to said Regional Center
in a written memorandum
Id. 98
opinion.”
provided by
to be
713,
Idaho at
only agency
transported
juveniles
§
be-
purposes
sons” for
1983. As Justice
tween detention centers.
Specifically, Brennan’s concurring opinion points out,
Gary Finney, who was the Bonner County
the majority opinion implicitly includes
Prosecuting Attorney in
1980,
March of
350,
such a decision. Id. at
The vast of cases under brought are in federal court where states HUNTLEY, Justice, dissenting. are immune liability under the elev- enth amendment to the United For the States Con- reasons stated Justice Bist- Thus, dissent, stitution. I reject handful of cases line’s the State’s- (accepted have addressed the issue majority) of whether a invitation to re- person state is under find the facts. Quern Jordan, judge
In
v.
U.S.
One trial
found on denial of motion
*7
1139,
(1979),
summary judgment
99 S.Ct.
Accordingly, I dissent.
I would
judgments.
unwarranted
Dunbar
primary
reach
issue
on appeal,
raised
*8
have, by the fiat of thrеe Jus-
being
that
is
Chandler
whether the State
insulated
tices,
repealed
the
essentially
and nullified
immunity
from
under Section 6-904 of the
Act,
legislature’s
purpose
declared
that Idaho
judicially
Idaho Tort Claims
as
government
justice
by this
in
should do
to its citizens.
amended1
Court’s decisions
such
and
Dunbar v. United
Ameri-
It was decisions
as Dunbar
Steelworkers of
ca,
(1979)
Culp
prompted
100 Idaho
authority for the whatever may (1983), well wonder P.2d 1323 expose same of itself serves to Chief Justice’s join if the who they justices indeed findings of fact which convictions, or opinion firm in their findings are two con- Having made those are. *9 preferential it as they joined major- whether findings jury, of trary to the to a revised Chandler. of Health Department “The ity adds that Responsive to the Department’s post- child(ren) ests quire the above-named re- of judgment motions, judge immediate removal the district set from ver- presently exercising out an exhaustive summation of the evi- sons care con- children), dence had presented been to the trol said said of for jury: child(ren)’s protec- immediate care and tion.’ (See Bonner Case No. Merritt, daughter “Deborah Ann of 3).# 18420-CPA-Plaintiff’s Exhibit Merritt, Walter years age twelve of the time the cause of action arose in this “At the of filing time the Motion for March, case in shelter, temporary Deborah had not violat- any ed laws of criminal of 3rd, State Idaho. Koski,
“On March Allan a So- Idaho, cial for Service Worker the State of 4th, 1980, Magistrate “On March or- Department Welfare, of Health and sta- place in ‘a placed dered to be Deborah of Idaho, Sandpoint, County, tioned in Department Health and by the shelter’ of filed caused to be with the Court an Affida- of Bonner and that Welfare Sheriff requesting vit and Motion Order for County could assist the of temporary shelter care of under Deborah necessary. if Health and Welfare the Child Protective Act Idaho Code 16- 7, 1980, “On March placed Deborah was seq. 1601 et in a shelter care home and Court notice “The for reasons Koski’s action are recit- givеn Father, to the Juvenile’s Walter ed in as his Affidavit follows: Merritt, hearing that a Court would be held ‘2. Merritt Deborah home Feb- left on March 10 ‘to determine whether custo- ruary 1980. Mr. Merritt did not dy the above named child should re- of anyone she had home inform nor left main in the Idaho Health of runaway report that local so file pending an adjudicatory Welfare picked law could have her enforcement hearing on the merits the Petition.’ of up. away Deborah also ran on Febru- (Plaintiff’s #3). Exhibit 15, 1980, ary finally asked Ser- propensity “Because of Deborah’s to run (sic) Department place her in iffs away, Magistrate supplemen- entered a detention her as did want father 10, 1980, tal attempting Order on March her back home nor want did she presence secure her the shelter home return to his home. It is this worker’s Mag- and at adjudicatory hearing. understanding present- provided part istrate’s Order follows: ly living with another minor or adult responsible Merritt shall rea- who is not her care. ‘If for for prior authority and Deborah has not been in since son without autho- school 21, 1980, February the date she ran rization of away said home. It is this worker’s Health and leave shelter Welfare from based on knowledge placement care prior this child’s home belief level, maturity adjudication the above entitled mat- state emotional same, incapable caring that she is her- ter and on the the same for contempt. taking grounds Upon and there is no one who is shall be self responsibility peace her. This worker the same a notification officer both has contacted the local Police Idaho or subdivision State Of- take into and nei- shall said fice Sheriffs thereof agency place ther law Deborah Merritt and her in the feels enforcement danger is in imminent the Bon- therefore facilities cannot shelter her. It is worker’s ner or the accessable most opinion high (sic) jail that this child is at risk accessable or detention facili- appropriate and that needs to be ties action available said law enforcement Further, taken agency. upon to have in shelter occurrence above, I care. 3. That best inter- believe the said child shall not be *10 charges occurring in rape, detention until of one released Bonner from further ’ County Boundary order this Court. County. and one of (Hendrickson plead guilty later to one 11th, 1980, skipped “March Deborah rape prison.) count of and was sentenced to school and failed to return to her shelter home. Koski discovered that Deborah was “Deborah testified that Hendrickson male, at a with adult local motel notified through talked “sex talk” her his cell County the Bonner Sheriff of the Court’s opening. door Deborah taken detention Order and Department “No one from of Sandpoint custody City into Police Health and visited Deborah in Welfare custody and handed over to the of jail Koski her cell. visited Deborah a County Bonner Sheriff’s Office to be de- police officers room on March 13th and Jail, County tained in the Bonner all occur- 19th, again jail on March but never 13, ring on March 1980. cell. “A set March new Court date was “Koski he did know the testified 26th, 14th and then continued March regulations rules and for a detention facili- ty, but that he did not consider the Bon- interim, placed “In in a home, al- County ner Jail as a shelter County jail cell in the Bonner Jail from though previously he that he had admits 13, 1980, 31, 1980, March March until placed another in detention in transferred to the Ju- time County Bonner Jail. Regional Facility venile Detention at the 25th, 1980, “On March Koski a filed Wallace, County, Idaho. Shoshone ’ Investigation Magis- with the ‘Report of that while in Bon- “The evidence clear recommending legal custody trate’s Court Jail, ner in a cell Deborah was Department be vested in the of Health and designed had prisoners. for adult The cell year, and since it was Welfare for one cell, no windows and while in the outside immediately, impossible place Debbie only view a on the Deborah could wall that she ‘remain in detention until she opposite hallway running past a her side of placed facility a ...’. can be treatment cell, occurring through small said view 3). (Plаintiff’s # Exhibit (The grant- cell opening in the door. Magistrate or- “On March during of cell area ed a view the detained '... in the custo- dered Deborah trial.) course pursu- dy Sheriff during testified the trial “Deborah ant to 17 of Idaho Juvenile Rules. Rule taken into on March when she was search, 13th, 1980, “Finally, 26th, Mag- strip she underwent her and there- delousing. shower and She had all istrate held a her, including legal custody of provided after away clothes taken given only jail and was Deborah Merritt was committed to her underwear to wear. Health coveralls Welfare year one and: material, reading radio had “Deborah no said ‘IT IS HEREBY ORDERED that her or TV and none was furnished in the child Health and Welfare Center, Regional Health and stay cell. during Welfare Wallace, Idaho, pending placement by other adjacent cells contained “The two Health Welfare. minors, Two Tina and Brian Pitts. Dunson Transportation Regional to said Center offend- adjacent other cells contained adult provided by to be ers, de- Scroggie, charged with first Jesse Sheriffs Office.’ Hendrickson, murder, Richard gree transport “The Sheriff was charged aggravated assault with #1) and two Wallace. (Plaintiff’s Exhibit knife *11 “Deborah, nevertheless, remained in may tion authorities the intro- forbid 31st, Jail until March holding quarters duction into ob- of periodicals. scene or books 5.) visiting program A shall estab- “From the presented evidence to the juvenile lishеd in detention jury, it easy jury would be for the to con- facilities family which will allow visits Merritt, to clude that Deborah year twelve for child, juvenile (2) each placed cell, old least two jail was in an adult in for ’ isolation, virtual hours each week. from 13th March until adequate exercise, March 31st without vis- position “It was Koski’s Idaho counseling, its or being and without fur- Department of Health and Welfare reading material, television, nished radio or courtesy supervising acted as a in Deborah or even sufficient toilet articles such as a custody was, and that the of Deborah comb, or toothbrush such confinement oc- fact, thought with the Court. Koski curring the knowledge with and at the re- the Department of Health and Welfare did quest of the Idaho Department of Health not, fact, have of Deborah until and Welfare. on March 26th even and then was on instructed de- Sheriffs and not the De- Idaho Code partment of Health and Welfare was or- tention facilities as set forth 16-1812(a) 16-1812 and follows: as transport dered to Deborah Wallace. ‘Instruction No. Koski understood that Deborah to be 26th, transported on March but he did ARE YOU INSTRUCTEDthat under not call or check with the law, a county jail facility must Sheriffs Office transportation had, determine such provide thefollowing standards if if fact, occurred. used the temporary detention children: 26th, “During evening of March after *1.) Juvenile detention must hearing, jail in her facilities be so constructed and/or maintained cell when her toilet overflowed. keep as to segregated children from jailer, Avella, “The Mario opened Debo- adult being those treated offenders door, gave rah’s mop pail cell her a and a offenders, as adult with there to be up with to clean instructions the results of no sight contact and/or sound toilet, the overflowed time (2) between the two classes. jailer left the cell area further without su- *2.) Juvenile detention must facilities pervising Deborah. provide supervision and observation “In process walking and up down juvenile dettainees sufficient corridor, approached protect the physical and mental cell of Hendrickson when he called to her health the detainees. if cigarette. asked her she wanted a 3.) Juveniles held in detention must Deborah, According approached as she provided (3) with at least three opening door, cell Hendrickson adequate per nutritional meals grabbed the collar of her coveralls one day. arm, forcing his other arm inside of her *4.) held Juveniles in detention must coveralls where he fondled her. Deborah to reading access materials on a only injury testified the she received was a regular systematic basis. De- small scratch the incident oc- juveniles books, may tained receive curred fоr two three minutes. periodicals newspapers including delivery source to the de- very “Deborah testified that she was members, byfamily upset nervous over but tention facilities the incident did to the subject right detention au- report until 27th the same when inspect thorities to and remove dan- Deputy Biggerstaff informed Sheriff gerous materials. Deten- as to what had occurred. harmful detention until she n can be placed facility treatment ...” Jailer, Charles “Bonner Ful- added.) (Emphasis ton, testified that the Bonner Jail is cursory A satisfactory juvenile review the record discloses facility not a that the district court ground sound children there not be because can *12 upholding challenge jury in to ver- the the sight separated by and sound from adult It Depart- dict. is absurd to excuse the addition, jailer’s is prisoners. In it the negligence causing, ment’s and then Department position that the Health of condoning, the in incarceration of Deborah jail remove a child can Welfare from a jail wholly compliance which not in was any time. detention at statutory pri- requirements. It was a added) R., (* (emphasis 194-200 pp. Vol. rights. Although ma facie violation of civil added). Department may the have confused three facts, on these eleven of the Based language members of this Court loose “yes” ques- to jurors answered the twelve custody being in and not as to the court negligence part on tiоn: “Was there the of Department, the court with the district Idaho, Defendant, Department State of percent accuracy related that after Welfare, proxi- which a & was of Health be to court ordered Deborah damages complained of the of mate cause placed place De- in “a of shelter” by Plaintiffs?” partment, Department so and after the 7th, the court notified her on March Depart- provided court district The hearing would be held on her father that a judicial a review as to the suffi- ment with 10, 1980, March “to determine whether support evidence to that ver- ciency of the in the custody Deborah should remain dict: ” 10th, March Department. The order of substantial, competent There evi- majority opinion, cor- incorporated into the of the support dence to the verdict “If in the fullest: that conclusion roborates against Idaho to the effect the State of prior shall without Deborah Merritt ... of Health and Wel- that the the De- authority and authorization from taking steps in not negligent fare was ____” de- partment to the “nth” Obvious facility to to detain Deborah a seek agent, and gree, a was not free Jail, other than custody her—which Department had juvenile caused the to negligence which legal custody which anyone’s book is —of physi- causing her sexually molested The primary element. authority over is pain suffering. cal and mental empower any peace offi- on to order went of Health and Wel- “custody,” in the her into which cer take Protective Act initiated the Child fare parlance profes- law of the enforcement involving Koski Deborah. proceedings sion, equates very “pick up” her —the knowledge that Deborah was full had If an language majority opinion. jail an adult being wrongfully detained involved, properly such adult were more in a detention facili- juvenile cell not taking arrest —but custody would be an 10th, March ty. The order of that is word not to be used placed in 1980, required that Deborah be may, picking-up Be all that as world. it at facility juvenile detention “the physical custo- of Deborah was matter acces- the most Bonner custody, purpose of and the dy, legal facility available jail or detention sible custody physical providing the order the court’s to avoid a frustration of 25th, filed exercise jurisdiction Department’s when Koski On Department’s legal custody. he knew It was the Investigation” “Report his who, finding on being detained an Mr. Koski that Deborah was motel, Of police pick up. facility nevertheless recom- caused adult be no doubt whatever— that there can all “remain mended to the Court accuracy there can no fully Department’s doubt as to committed to the care opinion upholding district court’s and custody. jury’s finding verdict important In that connection is to note fault. the district court’s statement however, Department, choosing to transport “The Sheriff was to Deborah to facts, ignore urged upon the district Wallace,” wholly magis- based court record unequivocally that “the shows signed days trate’s two later order on the ... was not the 28th, order, actually so which did not but custodian of as of date of [Deborah] “Transportation rather reads ____ ... March Pursuant Ida- Regional provided by said Center to be 16-603, ho Code was within the [Deborah] Sheriff’s Office.” This is a Court, authoriz- far cry amounting order com- ed to enter orders the best interests of mitting *13 custody to the of the Sher- added.) (Emphasis the child.” argu- This iff transportation for to Wallace. Deborah ment was on the side. frivolous I.C. custody was never ordered into the the § jurisdiction. 16-603 vests the court with in language Sheriff. At best the the mag- custody The mention of or custodian istrate’s order of March 28 awas direction speaks therein is the where section Department transporta- furnish the with parents, guardian, terms of a child’s tion so that Deborah could be moved out of other custodian. 16-604 I.C. also County jail Department the Bonner to the any rate, deals jurisdiction. At Regional of Health’s Center—where she Department befuddling did not succeed could have should have been de- readily the district court—which and cor- place tained in the first thе De- —unless rectly saw that there was evidence from partment arranged for suitable detention find, did, jury which the could itas that the Sandpoint. And, in passing, facilities in it Department had by obtained court orders strange is any indeed that utilization of a supplanted pri- which it Deborah’s father’s sheriff’s vehicle would made where the legal custody, Department and that the vehicles, Department has its any own responsible for Deborah’s incarcera- readily which could as make one and jail occupied tion in a by an accused mur- Sandpoint one-half drive from hour Wal- rapist. derer and a twice-accused Worse lace. yet, did not even come close to The in saying trial court’s inadvertence complying statutory requirements with the transport was to Sheriff Although detention facilities. Koski obviously language having could not flowed of the be confronted with seen cell, magistrate’s by Deborah's order as windowless he would have further affected hardpressed been he testify judge’s did not the district observation his order jailhouse find her striped clothed thought cover- “Koski that ... Sheriff’s alls. and not the Health and Welfare was ordered to trans- When the prevailed port Deborah Wallace.” While Koski hearing, March 26 and obtained Deborah’s along line, did testify the fact remains legal custody year, for a full there was no 26th, that in open the afternoon of the taking reason whatever for not forthwith court, prior to which assault Deborah, Department’s ward with on, place upon take mag- Deborah later whom occupied parentis, it a status of loco Department’s istrate ruled out of County jail. Had lived year. Deborah was extended for one up responsibility, to its she would not have Far important jury more than undergone the assault to she was signed written order which was day subjected. later that same As the dis- magistrate, out, however, Deborah, trict the assault on pointed court’s order after was the magis- was left in that environment order handed horrible down days an additional five after she was trate at the short hearing conclusion of the early she will detained on the afternoon of March 26. The MR. LYONS: And Regional Detention Fa- at the or District tape was allowed to hear a of the anything further.” cility pending proceedings magistrate court—a tran- scription readily Tr., of which pp. available 424-26. Vol.
reporter’s transcript: Magistrate Lyons statements of These gentlemen, attorney rep-
THE I Finney (prosecuting COURT: Ladies and Mr. then resenting Department) played here and counsel were will make statement jury. if I are second time for benefit can correct me misstate what we was succinct and to the going to do. court, point; open made in on the the order recording We have the device that the record, dispositive, //'the Magistrate And on that is a Court uses. truly at that time that it needed a believed reel, magnetic tape going play. we are pack sparse Deborah’s written order to be- portion hearing tape is a Wallace, longings any practic- and head for Magistrate Hardy Lyons, held before C. secretary agree ing attorney any will already on March 26. You heard that it would have taken three to five min- testimony en- about the Court Order thirty utes to sit down at or more by Magistrate Lyons, tered dated March typewriters in the Bonner court- pertaining to the on March type up embodying house and the order said 26. But these are the actual words magistrate’s Department person- decision. *14 in court at that time. nel, any responsi- imbued with sense if Now, tape I think the starts out with bility for “the best interests” of a twelve- Magistrate Lyons making a statement. I year-old girl up jail locked in a under the background you think will hear the Depart- circumstances here known to the made, also, by Gary Finney, statement ment, could and should been immedi- Prosecuting Attorney the for Bonner Instead, ately on the road to.Wallace. County. learn, jury they would left her in the Anyone Perhaps, just else? those two days. another five people. order, Department The written which the after the fact would contend was an abso- (Tape Recording) nothing “If there is prеrequisite removing lute further, finding I make a will Deb- jailhouse, from that filed and dated March purview is within the bie Child 28, was virtually identical to that which Act, pla.ce and I her Protective will with tape. heard ordered via the Elev- Department of Health and Welfare long, caption en lines other than for a think, probably, I period. for the interim recital, six lines of it reads: group that her wishes to be in a home therefore, upon testimony Now weight some with the will be accorded and documents on file in the above-enti- Department Is of Health and Welfare. matter, finding tled it is the of the Court anything there further? Merritt, that Deborah the above-stated Only detained in MR. FINNEY: she be child, jurisdiction is within the by Bonner Coun- a shelter care situation purview and within the of the child Regional Facility at ty at the Wallace protective act. Wallace, acceptance or pending IT legal IS HEREBY ORDERED that by of Idaho. Sounds placement the State custody of Deborah Merritt is committed testimony be about two like the Department to the Idaho of Health and placed in either of weeks until she be period Welfare for an indeterminate not these facilities. (1) year entry exceéd one of this Be I think that is true.
MR. LYONS: order. 10; correct? April is that more around IT IS FURTHER that said ORDERED child be FINNEY: Yes. MR. Center, Regional
Health and Welfare placement Anthony, Welfare for at St. Wallace, Idaho, pending placement by housing or other incorrigi- some institution § of Health and Welfare. juveniles, ble I.C. 16-1836 does contain Regional Transportation to said Center authorizing language appoint court provided by to be sheriff, assistant, or his or Y.R.A. coun- Office. Sheriff’s officer, probation selor or physically Plaintiff’s Ex. 3. juvenile place transfer the offender to the designated by Department. Similar same, Virtually say, I because the final language in 16-1814 speaks I.C. lan- suggesting sentence that the sheriff’s of- guage sheriff being appoint- so provide fice spo- should a vehicle was not ed, the right delegate with in the sheriff to by magistrate, spoken ken by coun- responsibility. This is all representing sel understanda- ble, agreed by premised because the Y.R.A. is magistrate, spoken by on rec- anyone. ognition unfortunately that there are some able-bodied, street-wise criminals course, by order, Of time very very who can be danger- violent and deputy prosecuting was drawn attor- But, provision ous. ais under the ney participated who not had as assistant Y.R.A., and we here deal awith twelve- magistrate proceed- counsel in the court year-old girl charged any crime, not ings, prepared and submitted to the neglected but whose brought status has signature, al- had purview her within the the Child Pro- ready may been assaulted —which serve to Act, tective under action taken the De- suggest suggested that someone had tо the partment. jurisdiction of the courts deputy attorney prosecuting the alteration Act, under this whereby accomplished by the final sentence: becomes substituted as “Transportation custodian and Regional to said Center to guardian, replacing even provided by parents, natural Sheriff’s And, *15 arises because activity, Office.” as criminal infra, dep- discussed abandoned, but because of uty prosecuting being the child attorney was not at Debo- abused, neglected short, hearing, may seriously rah’s and in he not have known —in of help. need In Mr. Koski’s proceeding affidavit ini- was under the Child tiating proceedings in magistrate Protective Act. Deborah’s court testimony was said: “It is this worker’s day assault, that on after belief based on she relat- knowledge of ed this child’s Biggerstaff it to a Mr. emotional state “a small room level, maturity that downstairs, incapable she is Room, Detective’s Staff be- I caring lieve.” This was one there is no day one before the order for herself (Em- magistrate’s taking responsibility for signa- was submitted her.” added.) phasis jury may well ture. The have concluded they seeing Watergate were a type of Now, arises, question was this a child coverup delayed written order —where who should been transported by a encompassed language spoken by the deputy patrol uniformed car? Not mágistrate. magistrate That the signed unless was a criminal who would have with the final sentence added means noth- prosecuted except been an adult as her ing. The a glance age bringing purview her within the first few lines would appeared see what Deborah, Transportation Y.R.A. a ne- reproduction be the of the words which he child, glected as a criminal in itself had uttered. improper, although damaging not so Had Deborah been involved in seri- incarcerating some her an adult as a ous criminal activity, and been had she common criminal where she was dehuman- charged under provisions by strip the Youth ized search—which to the minds Act, Rehabilitation jurors had she been com- may have been viewed as mitted to the State Department equally damaging of Health as the assault made agency trans- upon only iff’s was the prisoner.1 a male Not Office there in the order of juveniles no need to insert detention cen- ported between provid- March 28 the bit about the sheriff prosecutor give testimony ters.” The did thorough ing transportation, my rather but along cross-examination line—but reading of the Protective Act fails to Child The upon inroad the same. made a severe bringing the sheriff any provision disclose you using are question was “When asked: transporting a into the act of child within word, you using ‘detention’ are Act. purview of the Child Protective [sic, of the Youth the contents context] My friendly is that of own recollectiоn answer, The a some- Rehabilitation Act?” fatherly Depart- responsible, motherly and “If and noncommital answer: what evasive performing that func- ment caseworkers 16-1801 as a definition you look at the book powers of recollection tion. These same section, detention and defi- it has the word me that caseworkers also serve to remind prosecutor also admitted be- nition.” to, have, have access Health & either §§ 16-1801 ing familiar with 16-1836. I.C. that, not, vehicles, they and if are Welfare part are of the Y.R.A. and -1836 both pri- mileage where their reimbursed for Pro- is not defined the Child Detention in Health & vehicles are used vately-owned Act, in the Y.R.A. it is defined: tective but Welfare business. temporary care of “j. ‘Detention’ means require custody for who secure children ADDENDUM community’s protection their own or taking a writing foregoing, on Since restricting pending facilities physically majority opinion and second look at the said on disposition.” More could be court record, further com- comparing it to the should not neces- proposition, but this constraints required, although time ment is plaintiff’s it as sary. had before thorough development of the preclude file, complete juvenile court Exhibit 3 the ma- misstatements of the shortcomings and CPA, In the Interest of Case No. prose- testimony of the opinion. The jority Shortly after Merritt. attorney Department’s cuting attorney, the Wallace, long before moved to 14 and March hearings of March at the commenced, prosecu- deputy litigation advanced proposition is relied on for 4, 1980, prepared and sub- April tor on Department, in defense of the majority, supporting affida- motion and mitted this ad- appears from the evidence “It that: County Sher- vit: at trial that duced *16 II, your fingers through Admitted as Defendant’s Exhibit
1. the Bon- run his hair. Look in- ears, mouth, Department Policy ner Sheriffs tongue, side the under the Booking provide Procedures as follows: prisoner nose. Have the raise his arms so armpits may is then taken 6. The into the be Check Prisoner that the examined. his strip searched. Have him remove fingers. pubic by all Check the area hands and clothing, including his underwear socks. having penis, his him lift first and then his body weapons, His entire is checked for away you, have him face testicles. Then drugs, and other contraband at this time. spread you bend over and his buttocks so can female, jailer prisoner a. If the is a will cough see the rectum. Have him two or three search; however, strip have a matron do the anything placed times and in the rectum will jailer will remain within earshot in case of you pop then out. Have his raise his feet so emergency, to render assistance if needed. soles; his toes. can see the look between Deborah, prisoner, Had the child been of the prisoner strip search оf should be age years, or 14 there is no reason to thorough systematic. Injuries and identi- Department personnel believe scars, birthmarks, fying marks such as outrages have been less indifferent tattoos should be noted and recorded. The being subjected. which their ward was head; begin prisoner's should with the search
Cite
MOTION Department The Idaho and Welfare moves this Health to enter Wallace, authorizing order removal from Idaho the above-named child, whose has been with the vested order of this court dated March 1930. sworn, being duly R.
_Allan Koski_, first states: duly appointed That he 1. Caseworker of Health Welfare, personal knowledge and has of the facts contained this affidavit. 2. Deborah Merritt is scheduled at North Idaho Children's 7th, April Homeon 1980. It would her best interests to be released from transported she can be detention so Health Welfare to facility. this April day ANDSWORNto before me 4th
SUBSCRIBED was thus at liberty accept to not Although misconstruing that Deborah’s fa- prosecutor intimations of the plaintiff ther is the that the the case at all— —not sheriffs office was contention made always is “that the De- used to trans- partment, thereafter, port duty breached its homeless children who were taken un- by allowing her to be detained in protective der the wing *17 County Bonner Having Jail.” done provided by as the Child Protective Act. well, fairly mistakenly but viewing Walter Commendably, majority does note Merritt plaintiff, as the majority makes that: the remarkable statement that: “he con- “Respondent contends that [Deborah] sented to Deborah being held the Bonner Idaho, the State of Department of Health County pending an adjudicatory hear- Welfare, & owed Deborah duty a of rea- ing to determine who legal should have sonable care and that it breached that custody of her.” Walter Merritt’s consent duty when it allowed her to be confined legal was of no consequence, nor was it inappropriate facility.” detention material. It was Walter Merritt’s inade- quacies which caused the building, In same court-house where take custody of Deborah because was inhumanly Deborah was so incarcerated neglected Worse, though, and homeless. is of her rights Violation civil there was at all the majority’s continuation of the base ca- resident judge times a district fact the —in nard adjudicatory hearing was to judge presided at same who the trial. It legal custody determine who should have effort, would have taken little ex- no noted, of Deborah. As the district judge penditure money, for the taken,- been had first judge peti- have laid before the district a ascertain legal custody was to if corpus a tion for writ of habeas under the “should remain” with the un- §§ provisions of I.C. 9-4201 and 9-4215. I til the adjudicatory hearing. purpose do believe member of this of the adjudicatory hearing ascer- was to deny would venture to the con- legal custody tain if unlawful, finement was or that the writ would “for be extended an indeterminate Or, illegal would have issued. incarcer- period year,” of time not to exceed as one magistrate ation could ordered Department through recommended challenged been on a writ review. The Mr. equally Koski. An base is the canard if Department, truly concerned that its self-justifying majority statement charge wrongfully jailed, options had was jailed contempt “Deborah under a or- doing readily available—other than noth- majority der”. If would its own read ing. opinion, magistrate, attempt- properly day Not does the Court offend ing to exert of muscle the 12- a show jury system judge and the district who year-old girl, threatened her with con- case, presided over the also another but tempt. contempt— She never held in judge district who denied the De- earlier which would have been both futile and partment’s summary judgment: motion for you jail 12-year-old foolish. Where do a contempt? who is jail. held Not in Not And, County jail. the Bonner it would IN THE OF THE DISTRICT COURT contempt?
be civil or criminal
THE
JUDICIAL DISTRICT OF
FIRST
Leaving to others the task of further
IDAHO,
OF
IN AND FOR
STATE
opinion
majority
documentation
THE COUNTY OF BONNER
shortcomings
misstatements,
there are
MERRITT,
WALTER
and Li-
Guardian
points
two
which should be mentioned.
tem, for DEBORAH ANN
magistrate
who selected
Bonner
MERRITT,
Plaintiff,
minor,
proper
facility
County jail
detention
for Debоrah
not a resident of Bonner
vs.
County,
County. Why the
but of Kootenai
magistrate
think that
HENDRICKSON,
D.
BON-
RICHARD
than a
Coun-
jail is better
Kootenai
COUNTY,
Idaho,
NER
State of
ty jail
open
speculation. Especially
is
IDAHO, Defendants.
STATE OF
this so where the
had to know
CASE NO. 20110
Judge,
District
a few
a United States
years ago,
closed down
Kootenai
either
FOR
ORDER DENYING MOTION
to,
jail, or threatened
because
SUMMARY JUDGMENT
ac-
prisoners
was not
fit for adult
even
has moved
State of Idaho
Defendant
But,
who
cused of crime.
there were those
Judgment,
Court is of
Summary
and the
proper qualified
were no
knew that there
must be de-
opinion
that said motion
facilities
nied.
jail, and
of those would include
some
Deborah Ann Merritt was born
Department’s
in Sand-
Plaintiff
workers stationed
*18
2, 1967,
herein con-
Depart- August
and the events
point, and
also include the
28,
March
ment’s
cerned occurred on or about
representative.
libel,
process,
abusive
time,
prosecution,
an in-
1980. At that
Plaintiff was
deceit,
slander, misrepresentation,
or
County jail.
mate of the Bonner
rights.”
contract
interference with
liability is set
Idaho’s
Defendant State of
are two-fold.
The State’s contentions
Complaint.
Five of the
forth
Count
is,
the claim falls within
1980, That
Therein,
alleged
that in March
“discretionary
exemption and
function”
Health and
the Idaho State
battery.”
“arises out of
Bonner
petitioned
Welfare
Act for
court under the Child Protective
FUNCTION
DISCRETIONARY
Plaintiff, then on
legal custody of the
plethora
cases from
granted
there are a
While
attempt-
and state courts
department and
the federal
custody to the said
both
discre-
acting
language
department
ing
interpret
while
employees of the
the Tort
tionary
duty
em-
or
section of
scope of their
function
within the course and
Act,
appear
the Idaho
and,
of their
it would
ployment
performance
in the
Claims
government
duties,
grant
and encour-
would not
negligently permitted
cases
the case at
exemption
in the
under the facts of
aged
of the Plaintiff
the confinement
result,
and,
said
County jail,
as a
bar.
through both
came in contact
Plaintiff
briefing
argu-
and
only after the
“It was
Defendant Hen-
sight and sound with the
that this Court
of the case at bar
ment
United,
(another inmate) and with the
drickson
v.
opinion Dunbar
issued its
jail.
prisoners
adult
of the Bonner
America, 100 Idaho
Steelworkers of
offensively
son of the
and
law,
Idaho Tort Claims
both of which involve
6-904.
It is
malice or
liable for
“A
ees while
scope
thereby
of an
entity
function,
formance
liance
regulation be
1. Arises out of
exercise or
function or
ernmental
exercise
whether or not
abused.
it could not be held liable
governmental entity
State
[*]
further
of their
exercising ordinary
employee
upon
Plaintiff which was intentional
and
any claim which:
caused her
acting
criminal intent shall not be
argues
[*]
whether
or
of a
entity
harmfully
on the
duty рerformance or
alleged
or
employment
perform
valid,
statutory or
within
[*]
Act
the execution or
that,
or not
Idaho Code Section
the discretion
damage.
or based
that Hendrickson
employee
on
touched
[*]
act or omission
a
part
two
the statute or
governmental
discretionary
a matter of
care,
course
its
regulatory
under the
[*]
failure to
of a
upon the
grounds,
employ-
without
thereof,
in re-
gov-
per-
per-
[*]
inspection programs.
tionary function or
bar was
miners killed
I.C. Section
action was
lack of enforcement
tions and standards.
to do with
ed that
enactment
State on
officials
a
condition
stairway
on a
Plaintiff in a situation where such
statehouse,
elevator of
courthouse,
a
could occur and which could have been
government
other
operated building.
reasonably
by
foreseen
the State.
We see no distinction between those situ-
There are no Idaho cases that reach the
negligent
ations and the
maintenance of
question
exemp-
the applicability
of this
dangerous
a known
high-
condition of a
by
tion
battery
where the
committed
way, owned, operated and
by
maintained
non-employee
government.
of the
upon
the State and
public
which the
is
However, all of
Federal
Court
Circuit
Thus,
invited to
Dunbar,
travel.
unlike
on
decisions
have ruled
that issue have
the State’s action in
the case
bar has a
assault-battery exception
held that the
does
sector,
parallel
private
in the
and the
not extend to an
com-
battery
assault
State,
Act,
under the Idaho Tort Claims
person
by
employ
mitted
is not in
who
duty
bears the same
private
as does a
government
of the
agent
or an
thereof.
Hence,
landholder.
we
hold
States,
Gibson v.
1391
United
457 F.2d
alleged negligence
State’s
is
immun-
States,
Rogers v.
United
397 F.2d
ized
the “discretionary function or
States,
Underwood v. United
356 F.2d
duty” exception
governmental
liability
6-904(1).”
found
I.C. Section
States,
Muniz v. United
public highway, then
Health and Welfare likewise could be sub-
jected possible liability if it failed to
exercise
care
ordinary
under
facts in
No. 13434. ARISES OUT OP BATTERY Supreme Idaho. the battery, It should be noted here that Feb. any, if was committed the Defendant Hendrickson while inmate of
County jail. Complaint is found- Plaintiff’s negligence placing
ed on the of the State