# Petition — Mianecki v. Second Judicial District Court of State of Nevada > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0969%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 806 ## Text 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.