McKenna v. Edwards, s. 1

• Decision Date: 02 June 1992
• Docket Number: Nos. 1,No. 11175-0-III,s. 1,11175-0-III
• Citation: 830 P.2d 385,65 Wn.App. 905
• Parties: Diane McKENNA, Individually and as Personal Representative of the Estate of Kipper W. McKenna, Sharon M. Pfennig, Everette G. Pfennig and Shirley M. Pfennig, husband and wife, Respondents and Cross-Petitioners, v. Daniel Duane EDWARDS, County of Spokane, Northeast Washington Treatment Alternatives, d/b/a Treatment Alternatives to Street Crime (TASC), Substance Abuse Assessment and Monitoring (SAAM), John Doesthrough 6, Jane Doesthrough 6, Petitioners.
• Court: Washington Court of Appeals

Page 905

65 Wn.App. 905

830 P.2d 385

Diane McKENNA, Individually and as Personal Representative of the Estate of Kipper W. McKenna, Sharon M. PfennigEverette G. Pfennig and Shirley M. Pfennig, husband and wife, Respondents and Cross-Petitioners, v.Daniel Duane EDWARDS, County of Spokane, Northeast Washington Treatment Alternatives, d/b/a Treatment Alternatives to Street Crime (TASC), Substance Abuse Assessment and Monitoring (SAAM), John Does Nos. 1 through 6, Jane Does Nos. 1 through 6, Petitioners.

No. 11175-0-III.

Court of Appeals of Washington Division 3, Panel One.

June 2, 1992.

Gerald R. Neal, Preston, Thorgrimson, Shidler, Gates & Ellis, Howard M. Nichols, Spokane, for petitioners.

James P. Connelly, Robert A. Dunn and Winston & Cashatt, Spokane, for respondents.

SWEENEY, Judge.

Sharon Pfennig was raped and her boyfriend, Kipper McKenna, was killed by Daniel Edwards while Edwards was free on his own recognizance pending arraignment on other charges.Diane McKenna, as personal representative for the estate of Kipper McKenna, and Sharon Pfennig and her parents (McKennas) brought this action against Edwards, the County of Spokane, Northeast Washington Treatment Alternatives d/b/a Treatment Alternatives To Street Crime and Substance Abuse Assessment and Monitoring, and John and Jane Does 1 through 6 alleging negligence in releasing Edwards and in monitoring him while he was free pending arraignment.¹

Spokane County and its corrections department officer Art DeFelice(Corrections) and Northeast Washington Treatment Alternatives and its employee Al Barrett(TASC) moved for summary judgment.The court granted Corrections' motion for summary judgment for Corrections' investigation and recommendation to the court to release Edwards pending arraignment on the basis of judicial or prosecutorial immunity.The court denied both Corrections' and TASC's summary judgment motions for postrelease activities.All parties moved for discretionary review of the court's order.We accepted review, affirm the trial court's granting of Corrections' motion for summary judgment for prerelease activity, reverse the denial of Corrections' and TASC's motions for summary judgment for postrelease activities and dismiss.

Factual Background

On June 19, 1987, Daniel Edwards, age 20, was arrested in Spokane and charged with one count of second degree rape and one count of third degree statutory rape of a 15-year-old girl.According to the affidavit supporting the arrest warrant, Edwards had used marijuana on the evening of the rape.

Following his arrest for the rape charges, Corrections investigated Edwards to assist the court in determining whether and on what conditions Edwards should be released pending arraignment.Corrections learned that with the exception of a 7-month period, Edwards had resided with his parents and brother for his entire life; his aunt and uncle lived in the community; and Edwards was unemployed.Corrections verified that his residence was with his mother.She confirmed that Edwards lived with her and could return home pending arraignment but she refused to be responsible for his actions.She told Corrections her son had a drug problem for which he had been treated.Edwards had six prior juvenile convictions for burglary or theft.However, he previously had been released on his own recognizance and had no history of warrants.Based on this information, Corrections made the following recommendation to the court:

Defendant has adequate community and family ties.He is currently unemployed and supported by his parents.He has an extensive felony record with six convictions for burglary or theft.It appears that no warrant history is evident.Defendant appears to be a reliable person to return to court and OR is recommended subject to release conditions.

[OR Recommended.]

On June 19, the court released Edwards on his own recognizance pending arraignment, subject to the following conditions: (1) weekly contact with the corrections department; (2) travel outside Spokane county in excess of 48 hours prohibited without the corrections department's permission; (3) no possession of firearms/dangerous weapons; (4) no contact with the victim; (5) no consumption of alcoholic beverages; (6) report to TASC on June 22 for bi-weekly drug and alcohol monitoring; (7) maintain a 10 p.m. curfew; (8) no consumption or possession of non-prescribed drugs; (9) no further criminal violations; and (10) reside with his parents.

On June 22, Corrections informed TASC of the charges against Edwards, his release, and the requirement that he report to TASC for drug monitoring.Edwards failed to keep his first appointment with TASC (June 22).TASC informed Corrections of Edwards' failure to report.Corrections said it would "rattle his cage."On June 23, Edwards reported to TASC.In response to a request for intake information, Edwards informed TASC he had been using marijuana/hash and alcohol three or more times a week during the previous 90 days, most recently on June 18(5 days prior to first testing by TASC).After completing the screening and intake forms, Edwards submitted to a urinalysis test.

Edwards reported to TASC on June 25 for a breath analysis and again on June 29 for urinalysis.On June 30, TASC received a positive test result for marijuana from the June 23 urinalysis.A TASC employee immediately called corrections to report the results.Unable to reach the Corrections officer, the TASC employee left a message reporting the test results.TASC also prepared a monthly progress report on Edwards and sent it to Corrections the next day (July 1).On July 1, Corrections sent a report entitled "Felony Pre-Trial Release Supervision Delinquency" to the prosecutor informing him of the positive test results for marijuana and also informing him:

Our concern at this time is to make you aware of this delinquency.We leave it to your discretion as to whether a revocation of release or other appropriate action is in order.

Also, on July1 TASC received the results of Edwards' June 29 urinalysis; they were negative.

When Edwards reported to TASC on July 2, it confronted him with the positive results from the June 23 urinalysis.Edwards denied using marijuana since June 18, which was 5 days before his drug monitoring program began.The prosecutor called TASC to discuss the positive test results.TASC informed the prosecutor that based on its experience and understanding of the literature, the time period for THC (active ingredient in marijuana) to be eliminated from the system, at the rate Edwards used marijuana, is 5 days.It therefore was possible that the positive results from the June 23 test could have resulted from marijuana use on June 18(the day prior to Edwards' arrest).TASC also told the prosecutor the test results from June 25 and June 29 were negative.The prosecutor told TASC that Edwards was dangerous and requested that TASC immediately notify him of any future problems.

Edwards' urinalysis results from the July 2 test were negative, as were breath analysis results of July 6.Both his July 9 urinalysis and the July 13 breath analysis were negative.

On July 14, Edwards attended a "kegger"party together with Kipper McKenna, his lifelong friend, and Sharon Pfennig, Mr. McKenna's girl friend.Edwards asked Ms. Pfennig for a ride to his cousin's home.She agreed, but requested that Mr. McKenna accompany them.During the trip, Edwards shot Mr. McKenna, without warning, and raped Ms. Pfennig.Edwards was charged with first degreeaggravated murder and first degree rape.He confessed to both crimes.Ms. McKenna and the Pfennigs filed this civil action.

Issues

The questions presented are (1) whether Corrections' investigation and recommendation to release Edwards is shielded from liability because of judicial immunity; (2) whether the relationship between Corrections or TASC and Edwards imposes a duty on either agency to anticipate and control Edwards' conduct; and (3) whether either Corrections or TASC breached a duty owed to McKennas.

Standard of Review--Summary Judgment

The issues raised in this appeal were resolved by summary judgment at the trial court.We therefore engage in the same inquiry as the trial court, considering all facts and reasonable inferences therefrom in the light most favorable to the nonmoving parties.Taggart v. State, 118 Wash.2d 195, 199, 822 P.2d 243(1992).

Judicial Immunity

McKennas contend the court erred in concluding Corrections' investigation and recommendation to the court to release Edwards is protected by judicial immunity.

Corrections' investigation was done pursuant to former JCrR 2.09, which provided that a defendant"shall" be released on his personal recognizance unless the court determines his release will not assure his appearance.Additional conditions may be imposed only if the court finds the defendant may not appear or if he poses a danger to himself or others.Former JCrR2.09(c).This rule implements a societal policy which recognizes liberty as the norm; as such, due process requires pretrial release unless the State can show by clear and convincing evidence the defendant presents an identifiable and articulable threat.United States v. Salerno, 481 U.S. 739, 750, 755, 107 S.Ct. 2095, 2103, 2105, 95 L.Ed.2d 697(1987).

Here, Corrections serves as an arm of the court when it investigates and makes a recommendation to the court.In so doing, it performs functions traditionally performed by the court.We hold that its role, acting as an arm of the court, is the kind of activity granted immunity in this state.Taggart, 118 Wash.2d at 213, 822 P.2d 243;Noonan v. State, 53 Wash.App. 558, 769 P.2d 313, review denied, 112 Wash.2d 1027(1989);Tobis v. State, 52 Wash.App. 150, 758 P.2d 534(1988);Bader v. State, 43 Wash.App. 223, 716 P.2d 925(1986).The trial court's order granting Corrections' motion for summary judgment as to the prerelease investigation and...