Petition — Mianecki v. Second Judicial District Court of State of Nevada

Otrice -Supreme Court, U.S,

,®i Le Dp

MAY 17 1993

ALEXANDER L_STEVAS,

In the Supreme Court

OF THE

United States

OctosEr TERM, 1982

B. MIANECKI AND THE STATE OF WISCONSIN,

Petitioners,

v.

Seconp JupiciaL District Court

oF THE StaTE oF NEVADA,

THE HonorsBLE JOHN E. GaBRIELLI,

Linpa A. AVERETT AND STANLEY EK. AVERETT, INDIVIDUALLY ;

AND Linpa C. AVERETT, AS MOTHER AND GUARDIAN OF

TRENT AVERETT, A MINOR CHILD,

Respondents.

Petition For A Writ of Certiorari to The

Supreme Court of The State of Nevada

Gorpon H. Drepaoui*

WiiuiaM E. Peterson

SuELLEN EK. FuLstone

Woodburn, Wedge, Blakey and Jeppson

One East First Street

Suite 1600

Reno, Nevada 89501

(702) 329-6131

Attorneys for Petitioners

*Counsel of Record

— — a

BOWNE OF SAN FRANCISCO, INC. *© !I9Q0 NINTH ST. © S.F.,.CA 94103 ¢ (415) 864-2300

i

QUESTIONS PRESENTED

(1) Whether, under the Federal Constitution and the de-

cision in State of Nevada v. Hall, 440 U.S. 410 (1979), the

State of Wisconsin and its employees acting within the

scope of their employment are immune from suit in the

state courts of Nevada for official acts or omissions in the

State of Wisconsin under the auspices of the Interstate

Compact For The Supervision of Parolees And Proba-

tioners?

(2) Whether, in an action arising out of the Interstate

Compact For The Supervision Of Parolees And Proba-

tioners, the Full Faith And Credit Clause requires the

Nevada state courts to recognize the sovereign immunity

of the State of Wisconsin?

ii

LIST OF PARTIES

Petitioners herein and petitioners and defendants below

are the State of Wisconsin and its employee Bernard

Mianecki.* Respondents in the Supreme Court of the State

of Nevada and defendants herein are the Second Judicial

District Court of the State of Nevada in and for the County

of Washoe and the Honorable John Gabrielli, District

Judge. Also respondents herein are Stanley E. Averett and

Linda A. Averett, individually and as guardian of Trent

Averett, a minor, plaintiffs in the state trial court and real

parties in interest before the Nevada Supreme Court.

* Upon motion to the trial court, service of process on Ear!

Brunk, also an employee of the State of Wisconsin and a named

defendant in the Nevada state court action, was quashed for lack

of personal jurisdiction. Mr. Brunk is no longer a party to the action

and is not involved in the present petition.

ill

TABLE OF CONTENTS

Questions Presented

List of Parties En ee vee

Opinions Below

Jurisdiction

Relevant Constitutional Provisions and Statutes

Statement Of The Case

Stages At Which The Federal Questions Were

Raised And Preserved

Argument

1. Considerations of Cooperative Federalism

Require The Finding That Wisconsin Is

Immune From Suit In the Nevada State

Courts In An Action Arising Out Of The

Interstate Compact For The Supervision Of

Parolees And Probationers

2. The State of Nevada Is Required To Give

Full Faith And Credit To The Reservation

Of Sovereign Immunity By The State Of

Wisconsin

Conclusion

Appendix :

A— Order Of June 23, 1982, Denying

Motion To Quash Service Of Summons

And Complaint

B — Opinion of February 16, 1983, Denying

Writ Of Prohibition

C— Nevada Revised Statute § 213.189 —

§ 213.210

D— Wisconsin Annotated Statutes § 57.13

A-1

B-1

C-1

D-1

iv

Page

EK — Affidavit Of Pamela J. Brandon.............. E-1

EF — Aiadavit OF Patricia Parker ................. F-l

G— Affidavit Of Victor Townsley ................ G-1

H — Affidavit Of John W.Shoemaker........_. ces

TABLE OF AUTHORITIES

CasEs

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) ..... 9,10

DeGenna v. Grasso, 413 F.Supp. 427 (D.Conn. 1976) . 7

Sherrer v. Sherrer, 334 U.S. 343 (1948) ............ 9

State of Nevada v. Hall, 440 U.S. 410 (1979) . i, 5, 6, 7, 8, 10

Thomas v. Washington Gas Light Co.,

Soe 0.5. Sen, (2900) ..... ce... oe

Underwriters National Assurance Company v.

North Carolina Life, 455 U.S. 691 (1982) ........ 9

Constitution

United States Constitution:

mites 1, Seetion 1 Cigone 3 ....... 2... 2 ec kk. 2

Me BN NN ee 2,9

Statutes

Nevada Revised Statutes:

§ 41.032(2) ase : CE ee tN) eS

§ 213.180 et seq. .

Mie Geet ciete) ee

28 U.S.C. 1257(e) ..... Le en lea 2

Wisconsin Annotated Statutes § 57.13 (West, 1980) 3

ee

In the Supreme Court

OF THE

United States

Octosper TerM, 1982

B. MiaNEcKI anp THE StaTE oF WISCONSIN,

Petitioners,

¥.

Seconp Jupicrat District Court

or THE STaTE oF NEVADA,

Tue HonoraB_e JoHN E. GaBRIeELt,

Lipa A. AVERETT AND STANLEY E. AVERETT, INDIVIDUALLY;

AND Linpa C. AVERETT, AS MOTHER AND GUARDIAN OF

TRENT AVERETT, A MINOR CHILD,

Respondents.

Petition For a Writ of Certiorari to The

Supreme Court of The State of Nevada

OPINIONS BELOW

By Order entered June 23, 1982, the Honorable John

E. Gabrielli, District Judge of the Second Judicial District

Court of the State of Nevada in and for the County of

Washoe, denied the motion to quash service of process upon

the State of Wisconsin and its employee Bernard Mianecki.

The Order is printed as Appendix A hereto. The Supreme

Court of the State of Nevada subsequently denied the

petition of Wisconsin and Mianecki for a writ of prohibi-

tion to the trial court against any further action in the

matter. That decision is dated February 16, 1983, and is

reported in the unofficial reports at 658 P.2d 422 (1983).

That decision also appears as Appendix B hereto. The

2

decision will be reported in Volume 99 of the official Nevada

reports at a page to be designated when the volume is

printed.

JURISDICTION

The decision of the Nevada Supreme Court of which

review by certiorari is sought herein was made and entered

on February 16, 1983. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(c).

RELEVANT CONSTITUTIONAL PROVISIONS

AND STATUTES

Article IV, Section 1, of the United States Constitution

reads in pertinent part: “Full Faith and Credit shall be

given in each State as to the public Acts, Records, and

judicial Proceedings of every other State.”

Article I, Section 10, Clause 3, of the United States Con-

stitution reads in pertinent part: “No State shall, without

the Consent of Congress, ... enter into any Agreement

or Compact with another State... .”

The consent of Congress to the Interstate Compact For

The Supervision Of Parolees And Probationers is given

in Section 112(a) of Title 4 of the United States Code as

follows:

“The consent of Congress is hereby given to any two

or more States to enter into agreements or compacts

for cooperative effort and mutual assistance in the

prevention of crime and in the enforcement of their

respective criminal laws and policies, and to establish

such agencies, joint or otherwise, as they may deem

desirable for making effective such agreements and

compacts.”

3

The State of Nevada adopted the Interstate Compact at

Nevada Revised Statutes (NRS) § 213.180 et seg. The

similar approval of the pact by the State of Wisconsin is

codified at Wisconsin Statutes $57.13. Copies of the

Nevada and Wisconsin statutes are reproduced herein as

Appendices C and D, respectively.

STATEMENT OF THE CASE

Barney Blake was convicted in the State of Wisconsin

of sexual assault upon a male child and placed on proba-

tion under the Wisconsin Division of Corrections for a

period of four years beginning February 12, 1981. He

had previously become acquainted with Stanley and Linda

Averett of Reno, Nevada. A short time after his proba-

tionary period began, Mr. Blake formally requested per-

nussion pursuant to the Interstate Compact For The Super-

vision Of Parolees And Probationers (the “Interstate

Compact”) to travel to Reno, Nevada and take up residence

there with the Averetts.

Nevada and Wisconsin had both previously become sig-

natories to the Interstate Compact. Through cooperation

among the various participating states, the Compact seeks

to improve the criminal justice system and to promote the

rehabilitation of offenders and the protectiun of the publie.

Under proper circumstances and particularly in aid of

rehabilitation, the Compact makes provision for a proba-

tioner or parolee to change his residence to another state,

with the receiving state accepting responsibility for appro-

priate continuing supervision and control.

Mr. Bernard Mianecki was employed with the Wisconsin

Department of Corrections as the person in charge of

approving travel permits under the Interstate Compact.

After being informed of the circumstances of the request

and on the understanding and condition that Mr. Blake

+

would report to the Nevada authorities upon his arrival

in Reno, Mr. Mianecki approved his travel permit.

Mr. Blake arrived in Reno on or about May 7, 1981,

and began living with the Averetts. Shortly after May 7,

he reported to the probation and parole department of

the Reno Police Department. He subsequently registered

with the Nevada authorities as a felon. Before the Nevada

authorities were able to accept responsibility for Blake’s

supervision and control, he was arrested for acts of sexual

assault upon the minor son of the Averetts. He pled guilty

and was returned to Wisconsin where his probation was

revoked. He has since been sentenced to a Wisconsin state

prison where he remains.

In October of 1981, the Averetts, for themselves and their

son, filed an action in the Nevada state court of general

jurisdiction naming the State of Wisconsin and Bernard

Mianecki as defendants. The complaint alleged negligence

on the part of Mianecki as an employee of the State of Wis-

consin in approving the travel permit of Mr. Blake under

the Interstate Compact and in failing to advise the Averetts

of his prior offense. The complaint alleged injury as a

result of said negligence and sought the recovery of money

damages.

The Wisconsin authorities are immune from a similar

damages acvion in that state. Wisconsin and its employee

Mianecki moved to quash service of process upon them in

the Nevada action on the grounds that the Nevada court

lacked jurisdiction over them under the doctrine of sover-

eign immunity, the Full Faith and Credit Clause of the

Federal Constitution, and principles of comity. The motion

was denied by the Nevada state trial court. Wisconsin and

Mianecki sought the review of that denial by writ of pro-

hibition to the Nevada Supreme Court. The Supreme Court

denied the writ.

Hy)

STAGES AT WHICH THE FEDERAL QUESTIONS

WERE RAISED AND PRESERVED

Petitioners raised and argued the issues relating to

sovereign immunity as an incident of federalism and to the

application of the Full Faith and Credit clause of the U.S.

Constitution in their motion to the Nevada trial court to

quash service of process upon them. In its Order of June

23, 1982, the trial court, citing this Court’s decision in State

of Nevada v. Hall, 440 U.S. 410 (1979), denied the motion.

See Appendix A. The State of Wisconsin and Mianecki

then filed their petition with the Nevada Supreme Court

for a writ prohibiting the trial court from any exercise of

jurisdiction in the matter over them as barred by the doc-

trine of the sovereign immunity of states in a federal

system and the Full Faith and Credit Clause. The writ

was denied, the Nevada Supreme Court also citing this

Court’s decision in Nevada v. Hall, supra. See Appendix B.

ARGUMENT

In State of Nevada v. Hall, 440 U.S. 410 (1979), this

Court held that the State of Nevada was not constitution-

ally immune from suit in a California state court in a tort

action arising out of an automobile collision occurring in

California. The Court, however, expressly noted the limited

nature of its decision as follows:

California’s exercise of jurisdiction in this case poses

no substantial threat to our constitutional system of co-

operative federalism. Suits involving traffic accidents

occuring outside of Nevada could hardly interfere with

Nevada’s capacity to fulfill its own sovereign responsi-

bilities. We have no occasion, in this ease, to consider

whether different state policies, either of California

or of Nevada, might require a different analysis or a

6

different result. Nevada v. Hall, supra, 440 U.S. at 425,

fn. 24.

The present case was thus anticipated by the Court. The

issue of the exercise of judicial jurisdiction by one State

over another and non-consenting State here, however, does

not involve an ordinary claim of negligence such as that

arising out of an automobile accident. The claim here

involves actions taken under and pursuant to an agreement

made between and among the states, acting in a sovereign

capacity and with the consent of Congress, with respect

to matters of crime and corrections, an area of primary and

virtually exclusive sovereign responsibility.

The questions raised herein and anticipated by the Hall

footnote, are, undeniably, important questions of federal

law which should be settled and determined by this Court.

Petitioners believe that the decision of the Nevada Supreme

Court with respect to those questions is in conflict with this

Court’s decision in Nevada v. Hail, supra. Petitioners

therefore respectfully submit that it would be a proper

exercise of judicial discretion for this Court to grant the

writ of certiorari sought herein.

1. Considerations of Cooperative Federalism Require

The Finding That Wisconsin Is Immune From Suit In

The Nevada State Courts In An Action Arising Out

Of The Interstate Compact For The Supervision Of

Parolees And Probationers.

In this case, a Nevada resident seeks to sue the State of

Wisconsin in a Nevada state court on a claim arising out

of actions taken by the State of Wisconsin in the exercise

of its sovereign obligation to administer the criminal jus-

tice system. Those actions were taken under and pursuant

to an interstate compact to which Nevada and Wisconsin

became signatories in their respective sovereign capacities.

7

In becoming involved with the State of Nevada in this

cooperative effort, Wisconsin certainly did not agree nor

did it expect to become amenable to suit in the Nevada

state courts.

. Notwithstanding the foregoing, however, the Nevada

Supreme Court has held that this Court's decision in

Nevada v. Hall permits a Nevada state court to exercise

jurisdiction over the State of Wisconsin in an action arising

out of actions taken pursuant to the Compact. See, Opinion,

Appendix B. However, Nevada v. Hall, supra, expressly

reserved ruling with respect to the existence of sovereign

immunity in cases involving the capacity of a state to fulfill

its own sovereign responsibilities. See, 40 U.S. at 425, fn.

24. As stated by this Court, such suits would threaten

our “constitutional system of cooperative federalism.” Jd.

Under that guideline, Nevada must recognize the sovereign

immunity of the State of Wisconsin here.

The administration of the criminal justice system is the

most primary of sovereign responsibilities. In this in-

stance in meeting that sovereign responsibility, a number

of states, including Nevada and Wisconsin, and with the

express approval of Congress', have entered into an agree-

ment for the interstate transfer of supervision and control

of probationers and parolees.

The purpose of the Compact is to improve the protection

of the public by facilitating the rehabilitation of the

offender. Under the Compact, parolees or probationers

with family connections or employment opportunities in a

state other than that in which they were convicted can be

* By requiring Congressional approval, the Constitution places

such interstate agreements within the federal domain and makes

their efficacy a matter of federal as well as local concern. See, e.g.,

DeGenna v. Grasso, 413 F.Supp. 427, 431 (D.Conn.1976).

8

transferred for their own benefit as well as that of the

public. The Interstate Compact For The Supervision Of

Parolees And Probationers thus represents the essence of

cooperative federalism. The possibility of a parolee or pro-

bationer committing an additional crime or causing some

injury or damage in the receiving state is unavoidable.

But, as set forth in the affidavits of the compact adminis-

trators of various states, if, as a result of the actions of

transferred parolees or probationers, sending states were

suddenly to become amenable to unlimited liability in suits

brought in the state courts of receiving states, the pur-

pose of the Compact would be seriously undermined. See,

Appendices E through H. The exercise of jurisdiction by

the receiving over the sending state under such cireum-

stances would demonstrably interfere with the capacity of

the sending state “to fulfill its sovereign responsibilities.”

At best, states would become reluctant to make use of trans-

ter opportunities. At worst, they would simply withdraw

from the Compact altogether.

It is respectfully submitted that the Nevada v. Hall

decision does not and was not expressly intended to author-

ize the exercise of such jurisdiction under circumstances

such as those involved here. In Nevada v. Hall, supra, this

Court well described a “constitutional system of cooperative

federalism.” In such a system there is, and must be, as the

Nevada v. Hall Court also realized, sovereign immunity for

the actions of states taken, not as ordinary non-residents

in the driving of automobiles, but in the exercise of true

sovereign functions. That kind of sovereign immunity of

states is involved in the present case. This Court should

therefore grant the writ and reverse the Decision of the

Nevada Court.

9

2. The State of Nevada Is Required To Give Full

Faith and Credit To The Reservation Of Sovereign

Immunity By The State Of Wisconsin.

The Full Faith And Credit Clause, Article IV, Section 1,

of the United States Constitution has received substantial

attention in the last several years. It has been recog-

nized as “central to our system of jurisprudence.” Under-

writers National Assurance Company v. North Carolina

Life, 455 U.S. 691, 703 (1982). It has also been described as

“one of several provisions in the Federal Constitution

designed to transform the several states from independent

sovereignties into a single, unified nation.” Allstate Ins. Co.

v. Hague, 449 U.S. 302, 322 (1981), see also, Thomas v.

Washington Gas Light Co., 558 U.S. 261 (1980) ; Sherrer v.

Sherrer, 334 U.S. 343 (1948).

Because of the role of full faith and credit in a federal

system, this Court has also acknowledged that it is improper

to delegate to the states “its responsibility for the final

arbitration of full faith and credit questions.” Thomas v.

Washington Gas Light Co., supra, 448 U.S. at 271. As this

Court explained,

“To vest the power of determining the extraterritorial

effect of a State’s own laws and judgments in the State

itself risks the very kind of parochial entrenchment on

the interests of other states that it was the purpose of

the Full Faith and Credit Clause and other provisions

of Art IV of the Constitution to prevent.” (Cites

omitted.) Thomas v. Washington Gas Light Co., supra,

at p. 271.

It is precisely this kind of parochial interpretation of the

Full Faith and Credit Clause that the Nevada Supreme

Court has made here in overriding the State of Wisconsin's

reservation of sovereign immunity.

10

Although it is established that the Full Faith and Credit

Clause does not require a state to apply another state’s law

in violation of its own legitimate public policy (see, e.g.,

Nevada v. Hall, supra, 440 U.S. at 422), no such policy can

be found here. Nevada itself has entered into the Interstate

Compact, a clear endorsement of its purpose and underlying

policies. Nevada as well has enacted only a limited waiver

of its own sovereign immunity and has retained that im-

munity for discretionary actions such as a decision under

the Compact to permit a probationer to transfer his resi-

dence to another state. See, NRS 41.032(2).

The only policy articulated by the Nevada Supreme

Court, however, is the parochial one of providing Nevada

residents with a remedy in Nevada courts. That policy

interest, although legitimate, is not sufficient to justify in-

fringing upon the likewise legitimate interest of Wisconsin

in fulfilling its sovereign obligations with respect to the ad-

ministration of its criminal justice system. It is impermis-

sible, under Nevada v. Hall, supra, or the other full faith and

credit decisions of this Court, to permit that kind of local

parochial interest of Nevada to prevail over the interests

of the State of Wisconsin in performing its sovereign

capacity or over the federal interest in national unity “pro-

moted by interstate compacts”. See, e.g., Allstate Ins. Co.,

supra, 449 at 322-324 and fn. 10 (Stevens, concurring).

The Nevada Supreme Court erred in putting local inter-

ests over those of national proportion. This Court should

grant the writ to rectify that error.

11

CONCLUSION

For the reasons set forth above, Petitioners Bernard

Mianecki and the State of Wisconsin respectfully request

the Court to grant the Writ and reverse the Decision of the

Nevada Supreme Court.

Respectfully submitted,

GORDON H. DEPAOLI*

WILLIAM E. PETERSON

SUELLEN E. FULSTONE

Woodburn, Wedge, Blakey and Jeppson

One East First Street

Suite 1600

Reno, Nevada 89501

(702) 329-6131

Attorneys for Petitioners

*Counsel of Record

(APPENDICES FOLLOW)

Appendix A

Case No. 81-9446

Dept. No. 3

IN THE SECOND JUDICIAL DISTRICT COURT

OF THE

STATE OF NEVADA

IN AND FOR

THE COUNTY OF WASHOE

Linda A. Averett and Stanley R. Averett, individually ;

and Linda C. Averett, as mother and natural guardian of

Trent Averett, a minor child,

Plaintiffs,

Vs.

B. Mianecki, E. A. Brunk and The State of Wisconsin;

John Does I through X, inclusive,

Defendants.

[Filed June 23, 1982]

ORDER

Defendants’ Motion to Quash Service, came on for oral

argument on June 17, 1982. Steven Petersen, Esq., was

present representing the Plaintiffs. William E. Peterson,

Esq., was present representing the Defendants. Legal

Points and Authorities were presented, the matter was

argued, submitted, and taken under advisement.

The Court deeming itself fully advised in the premises

finds and concludes as follows:

Barney Blake was convicted of a sex offense in the State

of Wisconsin. While serving his probation, Blake requested

A-2

that he be allowed to live in Nevada. Pursuant to the Inter-

state Compact for Supervision of Persons Placed on Proba-

tion for the Commission of Criminal Acts, arrangements

were made for Nevada supervision. Mr. Blake took up

Nevada residence with Plaintiffs, Linda and Stanley

Averett. Soon thereafter, he was involved in a sexual act

with Trent Averett, Plaintiff's minor son. Mr. Blake’s pro-

bation has been revoked. He is now serving the under-

lying sentence in Wisconsin.

Plaintiffs have filed suit asserting negligence of the State

of Wisconsin in the transfer of Mr. Blake to Nevada. B.

Mianecki and E. A. Brunk are also named Defendants as

employees of the Wisconsin Department of Health and

Social Services. Defendants have moved to quash service

of process on the ground that this Court lacks personal

jurisdiction.

Defendants argue that sovereign immunity precludes the

courts of Nevada from exercising jurisdiction over the

State of Wisconsin. The immunity of one state from the

courts of another was circumscribed by the United States

Supreme Court in State of Nevada v. Hall, 440 U.S. 410, 59

L.Ed. 2d 416, 99 S.Ct. 1182 (1979). The Hall court specifi-

cally denied the applicability of sovereign immunity to one

state’s exercise of jurisdiction over another. They held that

“the enforcement of interstate comity must find its basis

elsewhere in the constitution.” Jd. at 422.

Hall was an action against the State of Nevada in the

California court system. A University of Nevada employee

had been involved in a California traffic accident. Even

though California had completely waived governmental im-

munity for such torts, the pertinent Nevada statute placed

a $25,000 limit on any such recovery. Given the inapplica-

bility of sovereign immunity, the court considered whether

A-3

the Full Faith and Credit Clause would require the Califor-

nia courts to recognize Nevada’s limited waiver of tort

immunity. They concluded that:

“...to require California either to surrender jurisdic-

tion or to limit respondents’ recovery to the $25,000

maximum of the Nevada statute would be obnoxious to

its statutory-based policies of jurisdiction over non-

resident nfotorists and full recovery.” Id at 425.

In the case at bar, the forum state, Nevada, has likewise

waived its immunity to such an action. Immunity has been

retained only for those actions which are deemed to be

discretionary rather than operational. NRS 41.032(2).

Wisconsin’s decision to transfer Mr. Blake was clearly

discretionary. However, having made that decision, they

performed the operational task of effecting such a transfer.

It is this operational act on which possible liability is based.

Plaintiffs are not claiming that the act of transfer was itself

actionable. Their suit is based on Wisconsin’s failure to

exercise due care in performance of the transfer. See State

v. Silva, 86 Nev. 911, 478 P.2d 591 (1970).

Apparently, Wisconsin has failed to waive its immunity.

Defendants maintain pursuant to the Hall case, that Ne-

vada should grant full faith and credit to Wisconsin's

reservation of such immunity.

The Hall court declined to consider whether the Full

Faith and Credit Clause must necessarily be inapplicable to

a sister state’s reservation of immunity. However, they also

failed to indicate what circumstance, if any, might justify

the granting of such full faith and credit. “...we have no

occasion in this case, to consider whether different state

policies ... might require a different analysis or a different

result.” State of Nevada v. Hall, supra, at Footnote 24.

Absent some indication that the Hall considerations are

A-4

inappropriate in this case, the Court is left to apply the

same analysis.

The Hall court did not employ a simple balancing test as

Defendants suggest. They were clear in their holding that

“...the Full Faith and Credit Clause does not require a

state to apply another state’s law in violation of its own

legitimate public policy.” Id. at 423. The Court’s aforemen-

tioned disclaimer in footnote 24 is merely a recognition that

there may be a situation where a sister state’s reservation

of immunity could be so overwhelming as to overshadow

another state’s interest in providing a forum for litigation.

The Court does not consider this to be one of those

situations. Nevada has a paramount interest in the protec-

tion of its citizenry from individuals who have been con-

victed of criminal offenses. Defendants advocate Wiscon-

sin’s interest in providing effective parole and probation

services. However,

“The prime purpose of both probation and parole is

the protection of the community through the rehabilita-

tion of those convicted of crime. The success of both

procedures depends on adequate control of those who

are released and intelligent supervision while under

eare.” Council of State Government, Handbook of

Interstate Crime Control, the Interstate Compact for

the Supervision of Parolees and Probationers 1 (1978

ed.).

It is inconsistent to suggest that the purposes of the inter-

state compact would be furthered through frustration of

Nevada’s interest in protecting its citizens. Therefore,

Defendants’ Motion to Quash Service of process must be

denied as to the State of Wisconsin.

Defendant B. Mianecki was instrumental in the transfer

of Barney Blake to Nevada. From the facts at hand, the

A-5

Court finds sufficent basis for assertion of jurisdiction over

Mianecki pursuant to the commission of a tortious act with-

in this State. See NRS 14.065(2)(b). Defendant E. A.

Brunk, on the other hand, had no involvement whatsoever

with Mr. Blake’s transfer. There is no basis for long-arm

jurisdiction over Brunk. Defendants’ Motion to Quash must

also be denied as to B. Mianecki and granted as to E. A.

Brunk.

ACCORDINGLY, IT IS HEREBY ORDERED that

Defendants’ Motion to Quash Service, filed February D,

1982, should be, and it hereby is, denied as to Defendants

B. Mianecki and The State of Wisconsin, and

IT IS FURTHER ORDERED that the Motion to Quash

Service, filed February 5, 1982, should be, and it hereby is,

granted as to E. A. Brunk.

DATED: This 23rd day of June, 1982.

/s/ JOHN GABRIELLI

District Judge

Appendix B

IN THE SUPREME COURT

OF THE

STATE OF NEVADA

No. 14180

B. Mianecki, and The State of Wisconsin,

Petitioners,

vs.

Second Judicial District Court of the State of Nevada,

in and for the County of Washoe,

and The Honorable John E. Gabrielli,

Respondents,

Linda A. Averett and Stanley E. Averett, individually ;

and Linda C. Averett, as mother and guardian of

Trent Averett, a minor child,

Real Parties In Interest.

Original petition for a writ of prohibition.

Writ denied.

Woodburn, Wedge, Blakey and Jeppson, and .

William E. Peterson, Reno,

for Petitioners,

Petersen & Petersen, Reno,

for Respondents.

[Filed February 16, 1983]

OPINION

By the Court, Steffen, J.:

Petitioners, by this original proceeding in prohibition,

ask us to overturn the district court’s order denying peti-

B-2

tioners’ motion to quash service of summons and complaint

filed by the Averetts, the real parties in interest. We have

considered each of petitioners’ contentions and have con-

cluded that the district court did not err in denying peti-

tioners’ motion.

The factual scenario giving rise to the Averetts’ com-

plaint has interstate implications of substantial magnitude.

According to the allegations of the complaint, a convicted

sex offender, Barney Blake, was placed on probation for

the first degree sexual assault of a young boy in Wisconsin.

Blake was to be under the supervision of the Wisconsin

Division of Corrections during his four year period of

probation. At some point during that period, Blake sought

and received approval from the Division of Corrections to

permanently relocate in Nevada. Shortly after his arrival

in this state, Blake moved in with the Averetts, who were

uninformed of his history of sexual aberrations and crimi-

nal conduct. Eventually, Blake victimized the minor son of

the Averetts.

The complaint alleged that petitioners violated certain

provisions of the Interstate Compact for the Supervision of

Parolees and Probationers! and, in addition, set forth two

causes of action in negligence: (1) failure to warn the

Averetts of Blake’s sexual propensities; and (2) failure to

supervise properly and control Blake’s activities.

Petitioners, the State of Wisconsin and B. Mianecki,? seek

avoidance of Nevada jurisdiction under the doctrines of

sovereign immunity, full faith and credit, and comity.

There are compelling reasons why we cannot accept the

* NRS 213.180 et seq.

* B. Mianecki is employed by the State of Wisconsin as a “compact

specialist.” He is also the individual who actually approved Blake’s

travel permit.

B-3

propositions asserted by Mianecxi and our sister state,

Wisconsin.

All parties agree that the landmark decision of Nevada

v. Hall, 400 U.S. 410 (1978), is dispositive of the sovereign

immunity issue. Each, however, interprets Hall in a

different light consistent with its respective position. The

Hall case arose in California, where an employee of the

University of Nevada, traveling by automobile on official

business, negligently injured several California residents.

Action was instituted in California against the State of

Nevada and its employee. Nevada moved unsuccessfully to

quash service and dismiss the action on grounds of

sovereign immunity. The California Supreme Court held

that the State of Nevada enjoyed no immunity in the courts

of California. Hall v. Nevada, 503 P.2d 1363 (Cal. 1973),

aff'd, Nevada v. Hall, supra. The United States Supreme

Court affirmed the California court, holding that the

sovereign immunity doctrine, which, absent consent, pre-

cludes actions against a state in its own courts, provides no

such immunity in the courts of another state.

Other jurisdictions which have applied Nevada v. Hall

have reached the same result. See, e.g., Peterson v. State of

Tex., 635 P.2d 241 (Colo. App. 1981) ; Daughtry v. Arlington

County, Va., 490 F.Supp. 307 (D.C. Dist. 1980); and Wendt

v. County of Osceola, Iowa, 289 N.W.2d 67, (Minn. 1979).

The Peterson case is analogous to the instant action. There,

the plaintiff, a Colorado resident, brought an action in

Colorado against the State of Texas and its agent. The

complaint alleged that the plaintiff’s automobile was stolen

and damaged by two juveniles who were in Colorado on a

juvenile rehabilitation program sponsored by the Texas

Youth Council. It was further alleged that the person in

charge of the program in Colorado, as an agent of the State

of Texas, and the Texas Youth Council were negligent in

B-4

the supervision of the two juveniles. The State of Texas

challenged jurisdiction of the Colorado court arguing that

Nevada v. Hall should be limited to factual situations in-

volving automobile collisions. The Colorado court in

Peterson disagreed and held as follows:

We approve the reasoning of the California court and

hold that where the injured party is a citizen of this

state, injured in this state and sues in the courts of

this state, there is no immunity, by law or as a matter

of comity, covering a sister state activities in this

state. Hall v. Nevada, supra; Nevada v. Hall, supra.

635 P.2d at 243.

Based on the above authority, we conclude that peti-

tioners are not immune from suit in this jurisdiction.

Since Wisconsin has not seen fit to waive its immunity,

the question remains as to whether this state should grant

full faith and credit to Wisconsin’s reservation of such

immunity. According to Nevada v. Hall, questions of inter-

state suability must be determined under the law of the

forum. Furthermore, “(t]he Full Faith and Credit Clause

does not require a State to apply another State’s law in

violation of its own legitimate public purpose.” 440 U.S. at

442. Therefore, we must ascertain Nevada’s policies and

determine whether this state would permit itself to be sued

if it had engaged in the conduct assigned to Wisconsin in

the present action.

The State of Nevada has waived its sovereign immunity

by the enactment of NRS 41.031. However, immunity has

been retained with respect to claims arising out of conduct

*NRS 41.031 provides: “The State of Nevada hereby waives its

immunity from liability and action and hereby consents to have its

liability determined in accordance with the same rules of law as

are applied to civil actions against natural persons. . . .”

B-A

which is deemed to be discretionary rather than operational.

NRS 41.032(2).* See also Andolino v. State, 97 Nev. 53, 624

P.2d 7 (1981). In the instant case, the adoption of the

Interstate Compact for Supervision of Parolees and Proba-

tioners by Nevada and Wisconsin constituted, in each in-

stance, a discretionary act for which each state would main-

tain immunity because the act of adopting rules and regula-

tions is a discretionary function. Upchurch v. State, 454

P.2d 112 (Hawaii 1969). However, the Averetts do not

attribute their injuries to the discretionary act of adopting

the compact or the decision to transfer Blake to Nevada.

The gravamen of their claim against petitioners is based

upon the negligent performance of operational acts by the

Wisconsin Division of Correction in effectuating the trans-

fer and placement of Blake in Nevada. The allegations of

failure to investigate where Blake would be living and to

warn the Averetts of the nature of Blake’s prior offense re-

fer to operational deficiencies for which immunity has been

waived. See Silva v. State, 86 Nev. 911, 478, P.2d 591

(1970) ; see also Johnson v. State, 447 P.2d 352 (Cal. 1968).

We thus conclude that if the acts complained of had been

committed by the Nevada Department of Parole and Proba-

tion, sovereign immunity would not bar suit against Nevada.

NRS 41.032(2). Therefore, under Nevada vy. Hall, supra,

Nevada as the forum state is not required to honor

Wisconsin’s claim of sovereign immunity, especially in light

of the fact that Nevada has a paramount interest in protect-

ing its citizens from individuals who have been convicted

of criminal offenses. Furthermore, we reject petitioners’

argument that the purpose and policies of the compact

would be frustrated if Nevada is permitted to assert

jurisdiction. On the contrary, assertion of jurisdiction

*NRS 41.032(2) provides: “No action may be brought... which

is based upon the exercise or performance or the failure to exercise

or perform a discretionary function or duty... .”

B-6

should encourage compliance with the compact and promote

its policies inasmuch as “[t]he prime purpose ot both pro-

bation and parole is the protection of the community

through the rehabilitation of those convicted of crime [and]

the success of both procedures depends on adequate control

of those who are released and intelligent supervision while

under care.” Council of State Government, Handbook of

Interstate Crime Control, the interstate Compact for

Supervision of Parolees and Probations, page 1 (1978 ed.).

Accordingly, we hold that petitioners are not immune from

suit in Nevada.

The final issue for our consideration is whether Nevada

should decline to exercise jurisdiction as a matter of comity.

In general, comity is a principle whereby the courts of one

jurisdiction may give effect to the laws and judicial

decisions of another jurisdiction out of deference and

respect. Brown v. Babbitt Ford, Inc., 571 P.2d 689, 695

(Ariz. 1977). The principle is appropriately invoked

according to the sound discretion of the court acting with-

out obligation. Id.; see also City of Philadelphia v. Austin,

429 A.2d 568 (N.J. 1981). “[I]n considering comity, there

should be due regard by the court to the duties, obligations,

rights and convenience of its own citizens and of persons

who are within the protection of its jurisdiction.” State ex

rel. Speer v. Haynes, 392 So.2d 1183, 1185 (Ala. Civ. App.

1979), rev’d on other grounds, 392 So.2d 1187. With this in

mind, we believe greater weizht is to be accorded Nevada’s

interest in protecting its citizens from injurious operational

acts committed within its borders by employees of sister

states, than Wisconsin’s policy favoring governmental

immunity. Therefore, we hold that the law of Wisconsin

should not be granted comity where to do so would be con-

trary to the policies of this state.

B-7

Accordingly, the writ of prohibition is denied.

/s/ J. STEFFEN

Steffen

We concur:

/s/ C. J. MANOUKIAN

Manoukian

/s/ J. SPRINGER

Springer

/s/ J. MOWBRAY

Mowbray

/s/ Sr. Ji ZENOFF

Zenoftt

5 The Chief Justice assigned Senior Justice David Zenoff to

participate in the decision of this matter, in the place and stead of

E. M. Gunderson, Justice, pursuant to the Nevada Constitution,

Art. 6, § 19(1)(a) and 19(1)(c), and SCR 10.

Appendix C

NEVADA REVISED STATUTES

OUT-OF-STATE PAROLEE SUPERVISION

213.180 Short title. NRS 213.180 to 213.210, inclusive,

may be cited as the Uniform Act for Out-of-State Parolee

Supervision.

[1 :111:1949 ; 1943 NCL § 11591.01]

213.185 “State” defined; Nevada a party to compact with

additional jurisdictions joining therein.

1. It is hereby declared that the term “state” as used in

NRS 213.180 to 213.210, inclusive, means any one of the

several states and the Commonwealth of Puerto Rico, the

Virgin Islands and the District of Columbia.

2. It is hereby recognized and further declared that

Pursuant to the consent and authorization contained in 4

U.S.C. $112 this state shall be a party to the Interstate

Compact for the Supervision of Parolees and Probationers

with any additional jurisdiction legally joining therein

when such jurisdiction shall have enacted the compact in

accordance with the terms thereof.

(Added to NRS by 1957, 241; A 1967, 213; 1969, 7)

213.190 Governor authorized to enter into compacts with

States regarding parole and probation supervision. Pursuant

to the authority vested in this state by that certain act of

Congress, approved June 6, 1934, and entitled “An act

granting the consent of Congress to any two or more states

to enter into agreements or compacts for cooperative effort

and mutual assistance in the prevention of crime, and for

other purposes,” the governor is hereby authorized and

directed to enter into a compact or compacts on behalf of

this state with any of the United States legally joining

therein.

[2:111:1949 ; 1943 NCL ¢ 11591.02]

C-2

213.200 Form of compact. The compact or compacts

shall be in substantially the following form:

A compact entered into by and among the contracting

states, signatories hereto, with the consent of the Congress

of the United States of America, granted by an act entitled

“An act granting the consent of Congress to any two or

more states to enter into agreements or compacts for co-

operative effort and mutual assistance in the prevention of

crime and for other purposes.”

The contracting states solemnly agree:

1. That it shall be competent for the duly constituted

judicial and administrative authorities of a state, party to

this compact (herein called “sending state”), to permit any

person convicted of an offense within such state and placed

on probation or released on parole to reside in any other

State, party to this compact (herein called “receiving

state”), while on probation or parole, if:

(a) Such person is in fact a resident of or has his family

residing within the receiving state and can obtain employ-

ment there.

(b) Though not a resident of the receiving state and not

having his family residing there, the receiving state con-

sents to such person being sent there.

Before granting such permission, opportunity shall be

granted to the receiving state to investigate the home and

prospective employment of such person.

A resident of the receiving state, within the meaning of

this section, is one who has been an actual inhabitant of

such state continuously for more than 1 year prior to his

coming to the sending state and has not resided within the

sending state more than 6 continuous months immediately

preceding the commission of the offerse for which he has

been convicted.

C-3

2. That each receiving state will assume the duties of

visitation of and supervision over probationers or parolees

of any sending state, and in the exercise of those duties will

be governed by the same standards that prevail for its own

probationers and parolees.

3. That duly accredited officers of a sending state may

at all times enter a receiving state and there apprehend and

retake any person on probation or parole. For that purpose

no formalities will be required other than establishing the

authority of the officer and the identity of the person to be

retaken. <All legal requirements to obtain extradition of

fugitives from justice are hereby expressly waived on the

part of states party hereto, as to such persons. The decision

of the sending state to retake a person on probation or

parole shall be conclusive upon and not reviewable within

the receiving state. If at the time when a state seeks to

retake a probationer or parolee there should be pending

against him within the receiving state any criminal charge,

or he should be suspected of having committed within such

state a criminal offense, he shall not be retaken without the

consent of the receiving state until discharged from prose-

cution or from imprisonment for such offense.

4. That the duly accredited officers of the sending state

will be permitted to transport prisoners being retaken

through any and all states parties to this compact, without

interference.

d. That the governor of each state may designate an

officer who, acting jointly with like officers of other con-

tracting states, if and when appointed, shall promulgate

such rules and regulations as may be deemed necessary to

more effectively carry out the terms of this compact.

6. That this compact shall become operative immediately

upon its ratification by any state as between it and any

other state or states so ratifying. When ratified it shall

C-4

have the full force and effect of law within such state, the

form of ratification to be in accordance with the laws of the

ratifying state.

7. That this compact shall continue in force and remain

binding upon each ratifying state until renounced by it.

The duties and obligations hereunder of a renouncing state

shall continue as to parolees or probationers residing there-

in at the time of withdrawal until retaken or finally dis-

charged by the sending state. Renunciation of this com-

pact shall be by the same authority which ratified it, by

sending 6 months’ notice in writing of its intention to

withdraw from the compact to the other states party hereto.

(3 :111:1949 ; 1943 NCL § 11591.03]

213.210 NRS 213.180 to 213.210, inclusive, construed as

distinct from law relating to extradition of fugitives from

justice. NRS 213.180 to 213.210, inclusive, and compacts

made pursuant thereto shall be construed as separate and

distinct from any act or acts of this state relating to the

extradition of fugitives from justice.

(5 :111:1949 ; 1943 NCL § 11591.05]

Appendix D

WEST’S WISCONSIN STATUTES ANNOTATED

Out-of-state parolee supervision; state compacts

The governor of this state is authorized and directed to

enter into a compact on behalf of this state with any state

of the United States legally joining therein in the form sub-

stantially as follows:

A COMPACT

Entered into by and among the contracting states, signa-

tories hereto, with the consent of the congress of the United

States of America, granted by an act entitled “An act

granting the consent of congress to any two or more states

to enter into agreements or compacts for co-operative effort

and mutual assistance in the prevention of crime and for

other purposes”,

The contracting states solemnly agree:

(1) That it shall be competent for the duly constituted

judicial and administrative authorities of a state party to

this contract (herein called “sending state”) to permit any

person convicted of an offense within such state and placed

on probation or released on parole to reside in any other

state party to this compact (herein called “receiving state”)

while on probation or parole, if

(a) Such person is in fact a resident of or has his family

residing within the receiving state and can obtain employ-

ment there; or

(b) Though not a resident of the receiving state and not

having his family residing there, the receiving state con-

sents to such person being sent there.

(c) Before granting such permission, opportunity shall

be granted to the receiving state to investigate the home

and prospective employment of such person.

D-2

(d) A resident of the receiving state, within the meaning

of this section, is one who has been an actual inhabitant

of such state continuously for more than one year prior to

his coming to the sending state and has not resided within

the sending state more than 6 continuous months immedi-

ately preceding the commission of the offense for which he

has been convicted.

(2) That each receiving state will assume the duties of

visitation of and supervision over probationers or parolees

of any sending state and in the exercise of those duties will

be governed by the same standards that prevail for its own

probationers and parolees.

(3) That the duly accredited officers of a sending state

may at all times enter a receiving state and there appre-

hend and retake any person on probation or parole. For

that purpose no formalities will be required other than

establishing the authority of the officer and the identity of

the person to be retaken. All legal requirements to obtain

extradition of fugitives from justice are expressly waived

on the part of states party hereto, as to such persons. The

decision of the sending state to retake a person on proba-

tion or parole shall be conclusive upon and not reviewable

within the receiving state; provided, however, that if at

the time when a state seeks to retake a probationer or

parolee there should be pending against him within the

receiving state any criminal charge, or he should be sus-

pected of having committed within such state a criminal

offense, he shall not be retaken without the consent of the

receiving state until discharged from prosecution or from

imprisonment for such offense.

(4+) That the duly aceredited officers of the sending state

will be permitted to transport prisoners being retaken

through any and all such states parties to this compact,

without interference.

ON a ee

D-3

(5) That the governor of each state may designate an

officer who, acting jointly with like officers of other con-

tracting states, if and when appointed, shall promulgate

such rules and regulations as may be deemed necessary to

more effectively carry out the terms of this compact.

(6) That this compact shall become operative immedi-

ately upon its ratification by any state as between it and

any other state or states so ratifying. When ratified it

shall have the full force and effect of law within such state,

the form of ratification to be in accordance with the laws

of the ratifying state.

(7) That this compact shall continue in force and remain

binding upon such ratifying state until renounced by it.

The duties and cbligations hereunder of a renouncing state

shall continue as to parolees or probationers residing

therein at the time of withdrawal or until finally discharged

by the sending state. Renunciation of this compact shall

be by the same authority which ratified it, by sending 6

months’ notice in writing of its intention to withdraw the

compact to the other states party thereto.

(9) This section may be cited as the “Uniform Act for

Out-of-State Parolee Supervision”.

Appendix E

IN THE SUPREME COURT

OF THE

STATE OF NEVADA

No. 14180

B. Mianecki, and The State of Wisconsin,

Petitioners,

vs.

Second Judicial District Court of the State of Nevada,

in and For The County of Washoe,

and The Honorable John E. Gabrielli,

Respondents.

Linda A. Averett and Stanley E. Averett,

individually; and Linda A. Averett,

as mother and guardian of

Trent Averett, a minor child,

Real Parties In Interest.

AFFIDAVIT

STATE OF WISCONSIN si

COUNTY OF DANE oo

I, Pamela J. Brandon, after being duly sworn, do depose

and say as follows:

1. I am the Administrator for the Interstate Compact

for the supervision of persons placed on probation for the

commission of criminal acts.

2. I have read the complaint captioned Averett vs.

Mianecki, et al., case number 81-9446 set in the District

Court for the State of Nevada and I have read the Motion

To Quash said complaint filed by the State of Wisconsin.

H-2

3. I make this affidavit in support of the Petition For

Prohibition filed by the State of Wisconsin to prevent the

courts of the State of Nevada from exercising jurisdiction

over the State of Wisconsin for damages for alleged acts

and/or omissions arising out of transactions pertaining to

the Interstate Compact.

4. The principal purposes of the Compact are to pre-

serve and improve our criminal justice system and to

further implement its underlying purposes of protection of

the public and rehabilitation of the client. This is accom-

plished by encouraging and promoting cooperation among

the various states pursuant to the Compact.

do. The possibility of a parolee or probationer who is

issued a travel permit under the provisions of the Inter-

state Compact perpetrating a criminal act and causing

injury or damage to persons cannot always be predicted.

There is always the possibility that a parolee or probationer

who is issued a travel permit under the provisions of the

Compact may commit a criminal act.

6. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the purposes of the

Compact as hereinbefore mentioned, would be seriously

impaired and undermined.

7. In my opinion, which is based on my familiarity with

the Compact and which is also based upon familiarity

with Compact administrators and Compact administration

in other states, if the various states were held to answer in

the courts of other states for activities undertaken pursuant

to the Compact, some states would give serious considera-

tion to withdrawing from the Compact, and some states

would, in fact, withdraw from the Compact.

B-3

8. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the various states would

give more concern to their own potential liability than to

the underlying purposes and goals of the Compact itself.

9. In my opinion, if the various states were held to

answer in courts of other states for activities undertaken

pursuant to the Compact, it would seriously impair and

impede the mutual cooperation which the Compact was

designed to secure.

10. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, and if they were not given

the protection of the laws of their own jurisdiction, includ-

ing the limitations of liability and sovereign immunity, then

I believe the states would give serious consideration to

withdrawing from the Compact and I believe that some

states would withdraw from the Compact.

11. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant

to the Compact, and if the various states were not given

the protection of the laws of their own jurisdiction, includ-

ing the limitations of liability and sovereign immunity,

then I believe that the Compact itself would eventually

be destroyed.

12. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant

to the Compact, then I believe that the State of Wisconsin

would give serious consideration to withdrawing from the

Compact in order to protect itself from potential liability

and as Compact Administrator I would recommend that

Wisconsin withdraw from the Compact.

h-4

DATED this 25th day of October, 1982.

/s/ PAMELI J. BRANDON

Pamela J. Brandon

SUBSCRIBED and SWORN to before me

this 25th day of October, 1982.

/s/ KATHIE GHERKE

Notary Public

Kathie Gherke

My Commission expires: November 24, 1985

Appendix F

IN THE SUPREME COURT

OF THE

STATE OF NEVADA

No. 14180

B. Mianecki, and The State of Wisconsin,

Petitioners,

Vs

Second Judicial District Court of the State of Nevada,

in and for the County of Washoe,

and The Honorable John E. Gabrielli,

Respondents.

Linda A. Averett and Stanley E. Averett, individually ;

and Linda A. Averett, as mother and guardian of

Trent Averett, a minor child,

Real Parties In Interest.

AFFIDAVIT

STATE OF MISSOURI i,

COUNTY OF COLE me

I, Patricia Parker, after being duly sworn, do depose

and say as follows:

1. Iam the President of the Interstate Compact for the

supervision of persons placed on probation for the com-

mission of criminal acts.

2. I am also Deputy Compact Administrator for the

we

State of Missouri.

3. I have read the complaint captioned Averett vs.

Mianecki, et al., case number 81-9446 and the Motion to

Quash filed by the State of Wisconsin and am familiar with

the contents therein.

F-2

4. I make this affidavit in support of the Petition For

Prohibition filed by the State of Wisconsin to prevent the

courts of the State of Nevada from exercising jurisdiction

over the State of Wisconsin for damages for alleged acts

and/or omissions arising out of transactions pertaining to

the Interstate Compact.

d. As President of the Compact I am intimately familiar

with the purposes, policies and provisions of the Interstate

Compact.

6. The principal purposes of the Compact are to pre-

serve and improve our criminal justice system and to

further implement its underlying purposes of protection of

the public and rehabilitation of the client. This is accom-

plished by encouraging and promoting cooperation among

the various states pursuant to the Compact.

7. The possibility of a parolee or probationer who is

issued a travel permit under the provisions of the Interstate

Compact perpetrating a criminal act and causing injury

or damage to persons cannot always be predicted. There is

always the possibility that a parolee or probationer who

is issued a travel permit under the provisions of the Com-

pact may commit a criminal act.

8. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the purposes of the Com-

pact as hereinbefore mentioned, would be seriously im-

paired and undermined.

9. In my opinion, which is based on my familiarity with

the Compact and which is also based upon my familiarity

with Compact administrators and Compact administration

in other states, if the various states were held to answer in

the courts of other states for activities undertaken pursuant

to the Compact, some states would give serious considera-

F-3

tion to withdrawing from the Compact, as has the State of

Indiana, and some states would, in fact, withdraw from the

Compact.

10. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the various states would

give more concern to their own potential liability than to

the underlying purposes and goals of the Compact itself.

11. In my opinion, if the various states were held to

answer in courts of other states for activities undertaken

pursuant to the Compact, it would seriously impair and

impede the mutual cooperation which the Compact was

designed to secure.

12. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, and if they were not given

the protection of the laws of their own jurisdiction, in-

cluding the limitations of liability and sovereign immunity,

then I believe the states would give serious consideration

to withdrawing from the Compact and I believe that some

states would withdraw from the Compact.

13. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant

to the Compact, and if the various states were not given

the protection of the laws of their own jurisdiction, in-

cluding the limitations of liability and sovereign immunity,

then I believe that the Compact itself would eventually

be destroyed.

F-4

Dated this 12th day of N ovember, 1982.

/s/ PATRICIA A. PARKER

Patricia Parker

SUBSCRIBED and SWORN to before me

this 12th day of N ovember, 1982.

/8/ VIRGINIA COFFMAN

Notary Public

My Commission expires: March 8, 1986

Appendix G

IN THE SUPREME COURT

OF THE

STATE OF NEVADA

No. 14180

B. Mianecki, and The State of Wisconsin,

Petitioners,

VS.

Second Judicial District Court of The State of Nevada,

in and for The County of Washoe,

and The Honorable John E. Gabrielli,

Respondents.

Linda A. Averett and Stanley E. Averett, individually;

and Linda A. Averett, as mother and guardian of

Trent Averett, a minor child,

Real Parties In Interest.

AFFIDAVIT

STATE OF LOUISIANA a

PARISH OF EAST BATON ROUGE

I, Victor Townsley, after being duly sworn, do depose

and say as follows:

1. I am the head of the Executive Council for the Inter-

state Compact for the supervision of persons placed on

probation for the commission of criminal acts.

2. I am also the Deputy Compact Administrator for the

cond

State of Louisiana.

3. I have read the complaint captioned Averett vs.

Mianecki, et al., case number 81-9446 set in the District

G-2

Court for the State of Nevada and I have read the Motion

To Quash said complaint filed by the State of Wisconsin.

4. I make this affidavit in support of the Petition For

Prohibition filed by the State of Wisconsin to prevent the

courts of the State of Nevada from exercising jurisdiction

over the State of Wisconsin for damages for alleged acts

and/or omissions arising out of the transactions pertaining

to the Interstate Compact.

0. The principal purposes of the Compact are to preserve

and improve our criminal justice system and to further

implement its underlying purposes of protection of the

public and rehabilitation of the client. This is accomplished

by encouraging and promoting cooperation among the

various states pursuant to the Compact.

6. The possibility of a parolee or probationer who is

issued a travel permit under the provisions of the Inter-

state Compact perpetrating a criminal act and causing

injury or damage to persons cannot always be predicted.

There is always the possibility that a parolee or probationer

who is issued a travel permit under the provisions of the

Compact may commit a criminal act.

7. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the purposes of the Com-

pact as hereinbefore mentioned, would be seriously im-

paired and undermined.

8. In my opinion, which is based on my familiarity with

the Compact and which is also based upon my familiarity

with Compact administrators and Compact administration

in other states, if the various states were held to answer in

the courts of other states for activities undertaken pursu-

ant to the Compact, some states would give serious con-

G-3

sideration to withdrawing from the Compact, and some

states would, in fact, withdraw from the Compact.

9. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the various states would

give more concern to their own potential liability than to

the underlying purposes and goals of the Compact itself.

10. In my opinion, if the various states were held to

answer in courts of other states for activities undertaken

pursuant to the Compact, it would seriously impair and

impede the mutual cooperation which the Compact was

designed to secure.

11. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, and if they were not given

the protection of the laws of their own jurisdiction, includ-

ing the limitations of liability and sovereign immunity, then

I believe the states would give serious consideration to

withdrawing from the Compact and I believe that some

states would withdraw from the Compact.

12. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant to

the Compact, and if the various states were not given the

protection of the laws of their own jurisdiction, including

the limitations of liability and sovereign immunity, then I

believe that the Compact itself would eventually be

destroved.

13. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant

to the Compact, then I believe that the State of Louisiana

would give serious consideration to withdrawing from the

Compact in order to protect itself from potential liability

and as head of Executive Council and Deputy Compact

G-4

Administrator I would recommend that Louisiana with-

draw from the Compact.

DATED this 25th day of October, 1982.

/s/ VICTOR E. TOWNSLEY

Victor Townsley

SUBSCRIBED and SWORN to before me

this 25th day of October, 1982.

/3/

Notary Public

Appendix H

IN THE SUPREME COURT

OF THE

STATE OF NEVADA

No. 14180

B. Mianecki, and The State of Wisconsin,

Petitioners,

vs.

Second Judicial District Court of the State of Nevada,

in and for The County of Washoe,

and The Honorable John E. Gabrielli,

Respondents.

Linda A. Averett and Stanley E. Averett, individually ;

and Linda A. Averett, as mother and guardian of

Trent Averett, a minor child,

Real Parties In Interest.

AFFIDAVIT

STATE OF OHIO -

COUNTY OF FRANKLIN

I, John W. Shoemaker, after being duly sworn, do depose

and say as follows:

1. Iamthe Administrator for the Interstate Compact as

to parolees and probationers for the State of Ohio.

2. As Compact Administrator, I am intimately familiar

with the purposes, policies and provisions of the Interstate

Compact.

3. I have been advised of the complaint captioned

Averett vs. Mianecki, et al., case number 81-9446 set in the

District Court for the State of Nevada but I have not had

H-2

an opportunity to read the Motion To Quash said complaint

filed by the State of Wisconsin.

4. I make this affidavit in support of the Petition For

Prohibition filed by the State of Wisconsin to prevent the

courts of the State of Nevada from exercising jurisdiction

over the State of Wisconsin for damages for alleged acts

and/or omissions arising out of transactions pertaining to

the Interstate Compact.

0. The principal purposes of the Compact are to pre-

serve and improve our criminal justice system and to fur-

ther implement its underlying purposes of protection of the

public and rehabilitation of the client. This is accomplished

by encouraging and promoting cooperation among the

various states pursuant to the Compact.

6. The possibility of a parolee or probationer who is

issued a travel permit under the provisions of the Inter-

state Compact perpetrating a criminal act and causing

injury or damage to persons cannot be predicted. There is

always the possibility that a parolee or probationer who is

issued a travel permit under the provisions of the Compact

may commit a criminal act.

7. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the purposes of the Com-

pact as hereinbefore mentioned, would be seriously impair-

ed and undermined.

8. In my opinion, which is based on my familiarity with

the Compact and which is also based upon my familiarity

with Compact administrators and Compact administration

in other states, if the various states were held to answer

in the courts of other states for activities undertaken pur-

suant to the Compact, some states would give serious

H-3

consideration to withdrawing from the Compact, and might,

in fact, withdraw from the Compact.

9. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, the various states would

give more concern to their own potential liability than to

the underlying purposes and goals of the Compact itself.

10. In my opinion, if the various states were held to

answer in courts of other states for activities undertaken

pursuant to the Compact, it would seriously impair and

impede the mutual cooperation which the Compact was

designed to secure.

11. In my opinion, if the various states were held to

answer in the courts of other states for activities under-

taken pursuant to the Compact, and if they were not given

the protection of the laws of their own jurisdiction, in-

cluding the limitations of liability and sovereign immunity,

then I believe the states would give serious consideration

to withdrawing from the Compact and I believe that some

states might withdraw from the Compact.

12. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant

to the Compact, and if the various states were not given the

protection of the laws of their own jurisdiction, including

the limitations of liability and sovereign immunity, then I

believe that the Compact itself would eventually be

destroyed.

13. In my opinion, if the various states were held to

answer in other states for activities undertaken pursuant to

the Compact, then I believe that the State of Ohio would

H-4

give serious consideration to withdrawing from the Com-

pact in order to protect itself from potential liability.

DATED this 26th day of October, 1982.

/s/ JOHN W. SHOEMAKER

John W. Shoemaker

SUBSCRIBED and SWORN to before me

this 26th day of October, 1982.

/8/

Notary Public

[SEAL]