Crawford v. State, Division of Parole & Community Services

Alice Robie Resnick, J. Appellant essentially advances two arguments in support of reversing the judgment of the court of appeals. First, she contends that the decision to send Maynard to A.A. is not a basic policy decision evidencing a high degree of official judgment or discretion, and thus the state is not entitled to immunity on this basis. Second, appellant argues that the state was negligent per se in allowing Maynard to attend an A.A. meeting outside the confines of the Center, since A.A. is not an “educational program” pursuant to R.C. 2967.26(B). [187] I In her first proposition of law, appellant argues that the decision to send Maynard to an A.A. meeting outside the confinement of the Center is not a decision for which sovereign immunity affords protection. The law in Ohio regarding state governmental immunity is that “* * * the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, the state may be held liable, in the same manner as private parties, for the negligence of the actions of its employees and agents in the performance of such activities.” Reynolds v. State (1984), 14 Ohio St. 3d 68,14 OBR 506, 471 N.E. 2d 776, paragraph one of the syllabus. Appellant asserts that the determination to send Maynard to A.A. is not a decision “involving the making of a basic policy * * * which is characterized by the exercise of a high degree of official judgment or discretion.” In support, appellant contends that allowing Maynard to attend an outside A. A. meeting does not involve a basic policy decision because the decision affected only one furloughee — Maynard. Moreover, it was admitted by the state that this type of privilege had never previously been granted to any furloughee. Likewise, appellant asserts that the decision to send Maynard to A.A. was not characterized by a high degree of official judgment or discretion. To buttress this assertion, appellant points to the following facts: that John Shoemaker, Chief of the Ohio Adult Parole Authority, made this decision in response to complaints by Maynard’s wife; that Shoemaker did not consult the persons most knowledgeable about Maynard, either Jean Patrick, Maynard’s furlough officer, or the Deputy Director of the Center, Rick Griffin; that Shoemaker himself was unaware of any other instance when such a privilege had been granted; and that Shoemaker made the decision without performing a reasonable investigation. Similarly, appellant suggests that if Shoemaker had made a reasonable investigation, he would have discovered that the Center had a quality in-house alcohol program that Maynard was required to attend, and that Maynard had a poor history of complying with the rules of the Center. Upon considering the above facts, we agree with appellant that the decision to send Maynard to A.A. is not entitled to immunity. The determination to send one particular individual to outside A.A. meetings cannot be said to be a “basic policy decision” within the meaning of Reynolds, supra. Likewise, as demonstrated above, the determination is not characterized by the exercise of a high degree of official judgment or discretion. Rather, it is a decision that is operational in nature, relating to the day-to-day business of the Center. As such, it is analogous to a ministerial act for which the state may be held liable. See Brodie v. Summit Cty. Children Services Bd. (1990), 51 Ohio St. 3d 112, 554 N.E. 2d 1301. Perhaps more important, however, we find that there is no statutory authority for Shoemaker to make a unilateral change regarding the programs that a particular furloughee may attend. R.C. 2967.26(A) provides that “[t]he adult parole authority may grant furloughs to trustworthy prisoners * * * for the purpose of employment, vocational training, educational programs, or other programs designated by the director of [188] rehabilitation and correction within this state. * * *” (Emphasis added.) There is no evidence that the Director of Rehabilitation and Correction had designated A.A. meetings as an “educational” or “other” program. Likewise, paragraph (C) of R.C. 2967.26 stated at the relevant time that “* * * [t]he authority shall, subject to approval by the director of rehabilitation and correction, adopt rules for granting furloughs, supervising prisoners on furlough, and administering the furlough program. * * *” 140 Ohio Laws, Parti, 583, 610. A diligent search of the applicable Ohio Administrative Code provisions (Ohio Adm. Code 5120:1-1 et seq.) reveals that no rule was adopted by the Adult Parole Authority that permitted Shoemaker to change Maynard’s furlough conditions and send him or any other furloughee to an outside A.A. meeting. Shoemaker testified that his decision was not specifically authorized by statute, and the state does not cite any statute or administrative rule which grants Shoemaker such authority. Similarly, John Dean, the Acting Director of the Center, testified that he was not aware of any legal opinions or memoranda prior to May 1984 which classified the A.A. program as educational or vocational in nature. Given the dictates found in R.C. 2967.26 concerning the respective roles of the Adult Parole Authority and the Director of Rehabilitation and Correction, we believe the language employed evidences a legislative intent to establish a system of checks and balances concerning the programs which furloughed prisoners may attend. A.A. meetings are not traditionally known as educational programs. Before attendance by a furloughee at an A.A. meeting may be considered statutorily authorized, the Director of Rehabilitation and Correction would be required to designate A.A. as an “other progra[m]” in order to qualify under R.C. 2967.26(A). There is no evidence that A.A. has been so designated by the Director. Pursuant to R.C. 2967.26(C), the Adult Parole Authority did not, and most likely could not, adopt a rule allowing the Chief of the Adult Parole Authority to change a furloughed prisoner’s conditions and terms of release.5 Thus, absent any statutory grant of power to change Maynard’s conditions of furlough, the decision by Shoemaker to send Maynard to an outside A.A. meeting is not protected by governmental immunity. For all of the above reasons, the trial court’s ruling that the state enjoys immunity for the decision to send Maynard to an A.A. meeting was erroneous. Moreover, as will be fur [189] ther demonstrated below, permitting Maynard to attend an outside A.A. meeting was negligence per se. II Appellant’s second proposition of law postulates that the state was negligent per se in failing to confine Maynard pursuant to R.C. 2967.26(B), when Maynard was not legitimately outside the confines of the Center. A necessary corollary of this assertion is that attendance at A.A. is not within the purview of R.C. 2967.26(B). At the time in question, R.C. 2967.26(B) provided as follows: “A prisoner who is granted a furlough pursuant to this section shall be confined for any periods of time that he is not actually working at his approved employment or engaged in a vocational training or other educational program. * * *” (Emphasis added.) 140 Ohio Laws, Part I, 583, 609-610. The General Assembly’s use of the word “shall” connotes the mandatory nature of the statute. The furlough program was designed to reintegrate prisoners into the community in a closely supervised environment. Furloughs for employment, education or vocational training are excellent ways to mainstream certain convicted felons into a productive life after they are released from prison. However, the furlough program must be operated in such a manner that the safety of innocent citizens is not jeopardized by the presence of dangerous furloughees who are not properly supervised.6 The crux of this issue is whether Kenneth Maynard was “confined” pursuant to R.C. 2967.26(B). In Reynolds, supra, we held at paragraph two of the syllabus that “[o]nce a decision has been made to furlough a prisoner pursuant to R.C. 2967.26, a cause of action can be maintained against the state for personal injuries proximately caused by the failure to confine the prisoner during non-working hours in accordance with R.C. 2967.26(B). Such a failure to confine is negligence per se, and is actionable pursuant to R.C. 2743.02.” Thus, while the initial decision to allow a prisoner to participate in a furlough program is entitled to immunity, the state’s failure to properly confine a prisoner in accordance with R.C. 2967.26(B) is negligence per se. In other words, if Maynard was not confined within the meaning of the statute, negligence per se existed. Appellant argues Maynard was not properly confined for two reasons. First, appellant contends that the outside A.A. meeting is not a “vocational training or other educational program” within the context of R.C. 2967.26(B). Because Maynard committed the murder while not confined to [190] the Center or at an acceptable vocational or educational program, appellant argues that the state was negligent per se. Second, appellant asserts that even if A.A. meets the “other educational program” criteria contained in the statute, the state was negligent per se when it allowed Maynard to walk away from the meeting after he had phoned the Center to arrange transportation back. Both parties strenuously argue the issue as to whether A.A. is an “educational program” pursuant to R.C. 2967.26(B).7 We have already determined that the A.A. meeting Maynard was authorized to attend cannot qualify as an “educational program” within the purview of R.C. 2967.26(B) because the statutory and administrative requirements regarding such attendance were not followed. Moreover, it is readily apparent from the record that neither Shoemaker nor anyone at the Center considered the A.A. meeting to be an educational program. Maynard’s itinerary sheet shows that his attendance at the A.A. meeting was recorded under the category of supplemental time, not educational/vocational time. (See Appendix.) Thus, the Center never contemplated Maynard’s participation at A.A. as an educational program. As a result, it is manifest that Maynard was not attending a program contemplated by R.C. 2967.26(B). Consequently, Maynard was not confined according to the requirements of the statute when he murdered Charles Crawford. In accordance with our decision in Reynolds, supra, we find that the state was negligent per se for not properly confining Maynard under R.C. 2967.26(B). Thus, we hold that pursuant to R.C. 2967.26, a furloughee must be confined for any period of time that he is not actually working at his approved employment, or engaged in a vocational training or educational program, or engaged in another program designated by the Director of Rehabilitation and Correction of the state of Ohio. The state’s failure to properly confine a furloughee according to the mandatory language of R.C. 2967.26(B) is negligence per se. Because appellant has set forth cognizable causes of action, we reverse the judgment of the court of appeals and remand this case for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Moyer, C.J., Sweeney, Douglas and H. Brown, JJ., concur. Holmes, J., dissents. Wright, J., dissents with opinion. Footnotes [5] While not in effect at the time in question, Ohio Adm. Code 5120:1-1-24 lends credence to our position, and states as follows: “(A) The chief of the adult parole authority, through the coordinator of the educational and vocational furlough program and the coordinator of community residential programs, shall be responsible for the development of community, educational, and employment programs for inmates released on furlough. Inmates may engage in other programs designated and approved by the director of rehabilitation and correction or activities approved by the chief of the division of parole and community services.” (Emphasis added.) The obvious intent of the administrative rules and applicable Revised Code provision is to deprive the Chief of the Adult Parole Authority of absolute discretion concerning which programs a furloughed prisoner will or will not attend. The mechanism through which this is achieved is much like a system of checks and balances. [6] Ohio Adm. Code 5120:1-1-02 establishes a statement of policy, and currently provides in part: “(D) The release procedures in these Administrative Regulations provide for orienting the inmate toward release, the preparation for the Parole Board of all data pertinent to the case, a release hearing based upon careful study of such data under procedures which insure fairness and rational decision making, formulation and investigation of a satisfactory release plan, release under professional supervision, and return to confinement for those who violate the terms and conditions of their release and are unwilling or unable to readjust satisfactorily under supervision. “(E) Emphasis is placed on supervision and such custody as is necessary to protect the interests of society. * * * “(G) * * * Unlimited discretion is to be eliminated. Necessary discretion is to be structured.” [7] Appellant relies heavily on the fact that the Center already had a quality alcohol treatment program on the premises. The state counters this argument by asserting that the in-house program was not an anonymous program, whereas A.A. is by its very nature anonymous. The record demonstrates that Shoemaker’s decision to send Maynard to A.A. had nothing whatsoever to do with anonymity, but instead was precipitated by persistent complaints from Maynard’s wife to Shoemaker.