Johnson v. State

¶1(dissenting).

¶2I respectfully dissent. The court’s broad holding that governmental entities are protected by statutory immunity for all of their decisions, actions, and/or inaction involving supervised release of an inmate goes too far.1 The court is, in essence, saying that no matter what the governmental conduct, if it involves the supervised release of an inmate, the governmental entity is immune from suit whether or not it would be entitled to immunity under the standards articulated in our prior cases. We have said repeatedly that immunity is to be construed narrowly, as it is the exception to the general rule of governmental liability. Cairl v. State, 323 N.W.2d 20, 23 (Minn.1982). The blanket immunization granted here allows the exception to swallow the rule and renders the court’s decision in Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975), abrogating sovereign immunity, a nullity as it relates to the supervised release of prison inmates. Cf. Minn.Stat. §§ 3.736, subd. 1, 466.02 (1994) (providing for tort liability against the state and its political subdivisions, respectively, thereby affirming the abrogation of sovereign immunity).

¶3The statutory immunity involved here is appropriately analyzed by determining whether the challenged governmental deei-sions/acts are of a “policy-making nature involving social, political or economic considerations” or whether the decisions/acts are “operational” in nature. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718-19 (Minn.1988). If the former, they are immune, but if the latter, they are not entitled to immunization. Id. at 722. The parties seeking statutory immunity bear the burden of establishing that they are entitled to immunity. Cf. Bolyard v. Dept. of Social & Rehabilitation Servs., 259 Kan. 447, 912 P.2d *51729, 732-33 (1996) (“governmental liability [is] the rule and immunity the exception,” therefore, the “governmental entity bears the burden to establish immunity”). The governmental entities involved have not done so here. The underlying rationale for statutory immunity is that courts should not second-guess “policy-making” decisions of the legislative and executive branches of government. Nusbaum, 422 N.W.2d at 718. “To decide whether the discretionary function exception applies in this ease, we must identify the precise government conduct being challenged.” Id. at 722.

¶4Here, the court has concluded that the state is protected by statutory immunity because:

Numerous protected policy-making considerations provided for by statute and administrative rule, such as the safety of the public, Stewart’s rehabilitation and treatment needs, and Stewart’s reintegration into the community, were balanced in establishing the terms and conditions of Stewart’s supervised release.

¶5This, however, begs the question because the Johnsons’ complaint is not a challenge to the social, political, or economic considerations underlying the legislative policy of releasing inmates such as Stewart; rather, the John-sons’ complaint challenges the implementation of Stewart’s release. By the above statement, it appears that the court has concluded that every act involved and every decision made relating to Stewart’s release was of a “policy” nature and that none of the decisions/acts were operational. This conclusion eliminates the “policy-making/operational” distinction the court identified in Nusb-aum and immunizes all of the governmental entities’ operational decisions/acts. I believe there is a distinction to be made between the decision and the underlying policy reasons for releasing an inmate and the implementation of the individual inmate’s release. The operational decisions/acts involved in implementing Stewart’s supervised release should not be immune from suit. See Division of Corrections v. Neakok, 721 P.2d 1121, 1134 (Alaska 1986) (“While the discretionary function exception immunizes the formulation of policy, the state may be held hable if that policy is negligently implemented”).

¶6I join in the dissent of Justice Page.