Hertog v. City of Seattle

Talmadge, J.

(concurring) — I concur because we are *293 bound by our precedents, Taggart v. State, 118 Wn.2d 195 , 822 P.2d 243 (1992), and Savage v. State, 127 Wn.2d 434 , 899 P.2d 1270 (1995). 7 While I am compelled to agree with the majority’s disposition of the issues in this case, I feel compelled to comment on the policy rationale for the majority’s decision. I agree completely with the concurring opinion of Judge Agid in the Court of Appeals. Judge Agid wrote of Petersen and Taggart :

I continue to believe those decisions ignore the reality of what officials exercising the cursory supervision permitted by state and local law can do to “control” the behavior of dangerous or, as here, potentially dangerous criminals. The huge caseloads and limited resources available to supervising city, county and state officials simply do not permit them to keep track of, much less control, every potentially dangerous defendant.

Hertog v. City of Seattle, 88 Wn. App. 41, 63 , 943 P.2d 1153 (1997) (Agid, J., concurring). These tragic cases result in what may well approximate strict liability for cities, counties, and the State. Even if every prescribed supervisory step is followed, if a released person harms someone there may always be a claim for ineffective supervision. Such claims will rarely be susceptible to summary judgment because of the fact-intensive inquiry the claim requires. Nor in the case of pretrial supervision do the authorities even have the option of confining potentially dangerous persons. As Judge Agid noted, local officials cannot ignore the basic tenet of our criminal justice system that a defendant is presumed innocent. Id.

Our decisions in this area, such as Taggart and Savage , however well intentioned, are based on the exercise of 20/20 hindsight. We have imposed liability in retrospect when a release decision about a pretrial detainee, probationer, or parolee resulted in terrible consequences to a third person. But release decisions simply cannot be made with great *294 precision. To the extent our case law may create what amounts to strict liability for ultimately unfortunate release decisions, the natural consequence will be that local governments will choose to end misdemeanor probation and/or any pretrial detention conditions rather than run the risk of extraordinary damage awards should they fail to foretell an individual will cause harm.

Although Judge Agid asked us to reconsider our precedents, I believe the proper arena for reform is the Legislature. This situation cries out for legislative attention. Only the Legislature can properly balance legitimate concerns about public safety, the existence of liability should a released person cause harm to others, and the operation of pretrial release programs, probation services, and post-conviction community supervision programs operated by State and local governments. A policy balance must be struck and it should be struck in the legislative process rather than here.

The majority correctly applies the law, but the Legislature should take this opportunity to examine issues of pretrial release, probation, and postconviction community supervision to strike the appropriate balance among public safety, liability, and the public policy behind such programs if it wishes those programs to continue at all.

The majority suggests the holding in Petersen v. State, 100 Wn.2d 421 , 671 P.2d 230 (1983), also controls. However, the Legislature statutorily abrogated our holding in Petersen in Laws op 1987, ch. 212, § 301(1) (codified at RCW 71.05.120(1)), with respect to the liability of the State.