R.E. ex rel. D.E. v. State

¶1concurring.

¶2I agree that the superior court properly granted summary judgment to the State. I write separately because I believe that the State is immune from liability regarding D.E.’s claims under the discretionary function exception of AS 09.50.250(1).

¶3D.E.’s claims as presented on appeal focus on DFYS’s actions during the pre-licensing process. D.E. essentially claims that DFYS negligently failed to conduct a more thorough investigation. The State’s decision not to adopt a more extensive means of investigating applicants and other adult residents of family day care homes, however, is clearly a discretionary act based on policy considerations.1

¶4The applicable regulations do not specifically require that DFYS follow any particular means of investigating applicants and other adult residents of applicant households, at least not in any way relative to discovering possible abusive tendencies. DFYS therefore retained discretion to formulate an investigative procedure. DFYS has demonstrated, through unrefuted affidavits, that it exercised this discretion by adopting a policy of not investigating non-applicant residents of family child care homes and investigating applicants in only a limited number of ways. The decision to conduct only a limited investigation of applicants was based on consideration of such factors as the proper allocation of limited resources and the need to avoid excessive intrusion into the private lives of applicants and to encourage providers to seek licenses. This court has previously recognized that most allocation of resources decisions are policy based. See Freeman v. State, 705 P.2d 918, 920 (Alaska 1985) (“Decisions concerning the allocation of available funding are often immune from suit under the discretionary function exception.”) The other factors relied on by DFYS are also policy based. The discretionary function exception therefore bars claims based on DFYS’s decision not to investigate applicants like Betty Anderson more thoroughly.

¶5DFYS’s decision not to engage in any extensive investigation of other residents of family child care homes (or of the emergency provider listed by the applicant) was based on the same considerations, as well as a perceived ability on the part of licensees to choose appropriate cohabitants and emergency back-ups. Whatever the actual wisdom of such a decision, the discretionary function exception prevents this court from re-examining an executive branch agency’s resolution of an issue entrusted to its policy discretion. See Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982).

¶6I would therefore hold that the State is immune from liability under AS 09.50.250(1) for not having engaged in a more thorough investigation of the Andersons.