Reply Brief — Cal. Franchise Tax Bd. v. Hyatt, 135 S. Ct. 2940 (2015) (No. 14-1175)

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[Serene Coa TE

APR 24 2015

No. 14-1175 ICE OF THE CLERK

IN THE

Supreme Court of the United States

FRANCHISE TAX BOARD OF

THE STATE OF CALIFORNIA,

Petitioner,

Vv.

GILBERT P. HYATT,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Nevada

BRIEF OF THE INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

CHARLES W. THOMPSON, JR. QUIN M. SORENSON*

AMANDA KELLAR SIDLEY AUSTIN LLP

INTERNATIONAL MUNICIPAL 1501 K Street, N.W.

LAWYERS ASSOCIATION Washington, DC 20005

7910 Woodmont Avenue (202) 736-8000

Suite 1440 qsorenson@sidley.com

Bethesda, MD 20814

(202) 466-5424

Counsel for Amicus Curiae The International

Municipal Lawyers Association

April 24, 2015 * Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................cccesseeeeees ii

INTEREST OF AMICUS CURIAE....................... 1

INTRODUCTION AND SUMMARY ................... 2

I eiiceiieritiiiantinaniiemtnanideminnigrinmmetinatnaine 3

I. NARROWING THE SCOPE OF THE

DISCRETIONARY FUNCTION IMMUN-

ITY WILL IMPEDE THE FUNCTION-

ALITY OF LOCAL GOVERNMENTS AND

HARM THE PUBLIC INTEREST................ 3

Il. THE DECISION BELOW CONTRADICTS

THE VIEW OF A MAJORITY OF

CIRCUITS THAT SUBJECTIVE INTENT

IS IRRELEVANT TO THE DISCRETION-

ARY FUNCTION IMMUNITY INQUIRY... 9

IIIS scenniscesintncnecnttsesamisenmneniommainastcnsion 14

(i)

TABLE OF AUTHORITIES

CASES Page

Berkovitz v. United States, 486 U.S. 531

Ee ee 10, 13

Coulthurst v. United States, 214 F.3d 106

aie italian 11, 12

Fisher Bros. Sales v. United States, 46 F.3d

et 11

Franklin Sav. Corp. v. United States, 180

F.3d 1124 (10th Cir. 1999)....................008.. 11

Gasho v. United States, 39 F.3d 1420 (9th

a 11

Gray v. Bell, 712 F.2d 490 (D.C. Cir

REESE RES A BR ae ee ae ll

Harlow v. Fitzgerald, 457 U.S. 800

EE Sen eeeees eee me Feet 6, 7,8

Irving v. United States, 162 F.3d 154 (1st

EEE. Roe Mere 11

Keller v. United States, 771 F.3d 1021 (7th

SRE EI ene eee ene erento 11, 12

Medina v. United States, 259 F.3d 220 (4th

REE ee ee ee 11

Mitchell v. Forsyth, 472 U.S. 511 (19886)...... 7

Owen v. City of Independence, 445 U.S. 622

ai ane 10

Palay v. United States, 349 F.3d 418 (7th

EE. See are aer anes 11, 12

Reynolds v. United States, 549 F.3d 1108

ene 11, 12

Richardson v. McKnight, 521 U.S. 399

TIT itntedaiasieiestenarneenntineeetaninnadiitieamenimemaaiticiniitaes 7

Scheuer v. Rhodes, 416 U.S. 232 (1974),

overruled on other grounds by Davis v.

Scherer, 468 U.S. 183 (1984) ..................... 8

Triestman v. Fed. Bureau of Prisons, 470

F.3d 471 (2d Cir. 2006) ....................00000000 11, 12

TABLE OF AUTHORITIES—continued

Page

United States v. Gaubert, 499 U.S. 315

RE cia ee 10, 13

STATUTES

I i iaariaeieecatiaiaillae 7

tata ainiaataial 2, 10, 13

Alaska Stat. § 09.50.250 ...............ccccceeeeeeeeees 13

Ariz. Rev. Stat. Ann. §§ 12-820.01(B)........... 13

Cal. Gov't Code § 820.2 .00............ccccccceeeeeeeeees 13

Del. Code Ann. tit. 10, § 4001 ....................... 13

«sean 13

Ga. Code Ann. § 50-21-24(2) ..............0.......... 13

Haw. Rev. Stat. § 662-15(1) ........cccccccescseseees 13

Idaho Code Ann. § 6-904(1)......................200- 13

Ind. Code § 34-13-3-3(7) ..............cccccccceesseeeees 13

Iowa Code § 669.14(1) ................ccceeeeeeeeeeeeeess 13

Kan. Stat. Ann. § 75-6104(e).....................004. 13

Mass. Gen. Laws ch. 258, § 10(b).................. 13

Me. Rev. Stat. tit. 14, § 8104-B(3) ................ 13

Minn. Stat. Ann. § 3.736(3)(b) ...................... 13

Miss. Code Ann. § 11-46-9(1)(d).................... 13

N.D. Cent. Code § 32-12.2-02(3)(b)............... 13

N.H. Rev. Stat. Ann. § 541-B:19(1)(c)........... 13

N.J. Stat. Ann. § 59:2-3.000...........cccceccceeeee seen 13

Neb. Rev. Stat. § 81-8,219(1) ........................ 13

Nev. Rev. Stat. § 41.032(2)................cccceeeeeees 13

Okla. Stat. tit. 51, § 155(5).................... cece 13

Or. Rev. Stat. § 30.265(6)(c)......................00-- 13

42 Pa. Cons. Stat. Ann. § 8524(3)................. 13

S.C. Code Ann. § 15-78-60(5) ......................-. 13

Tex. Civ. Prac. & Rem. Code Ann.

| Ean eae eee ene 13

Utah Code Ann. § 63G-7-201(4)(a) ............... 13

Vt. Stat. Ann. tit. 12, § 5601(e)(1)................. 13

INTEREST OF AMICUS CURIAE'

The International Municipal Lawyers Association

(IMLA) is a non-profit, professional organization that

has been an advocate and resource for local

government attorneys since 1935. IMLA serves as an

international clearinghouse of legal information and

cooperation on municipal legal matters. IMLA

collects and disseminates information to its

membership across the United States and Canada

and helps governmental officials prepare for litigation

and develop new local laws. Every year, IMLA’s legal

staff provides accurate, up-to-date information and

valuable counsel to hundreds of requests from

members. IMLA also provides a variety of services,

publications, and programs to help members who are

facing legal challenges.

IMLA is committed to protecting its members

discretion under state and federal law to make policy

decisions without the threat and cost of prolonged

litigation, which would _significantly—if not

prohibitively—impede both functionality and

ingenuity. The decision below, however, adopts an

unduly narrow interpretation of the discretionary

function immunity that would leave the multitude of

policymaking decisions of inunicipal actors open to

suit as long as the complainant makes any claim that

includes an element of subjective intent. This

approach is not only flatly inconsistent with

1 No counsel for any party to these proceedings authored this

brief in whole or in part. No entity or person, aside from amicus

curiae, ite members, and ita counsel, made any monetary

contribution for the preparation or submission of this brief.

Petitioner and Respondent have consented to the filing of this

brief. Letters reflecting such consent have been filed with the

Clerk.

precedent from the majority of courts across the

Nation but also would expose municipalities to years

upon years of ceaseless litigation—as occurred in this

case—at costs of potentially billions of dollars. IMLA

has a strong interest in ensuring that local

governments and their officials are protected from

suit for decisions made in their official capacity based

on the legitimate budgetary, administrative, and

enforcement concerns that animate local bodies.

INTRODUCTION AND SUMMARY

In a seventeen-year-old suit alleging tortious

conduct by the California Franchise Tax Board, the

Nevada Supreme Court held that a governmental

body may be sued by any aggrieved individual and

subject to civil common law tort liability for any

decision the body makes in its official capacity so long

the individual merely alleges that the decision was

made with improper “intent” or in “bad faith.” This

decision directly contradicts a host of federal

appellate cases recognizing that, under the so-called

“discretionary function exception,” 28 U.S.C.

§ 2680(a), governmental bodies and their officials are

entitled to immunity from suit for actions taken in

their official capacities, regardless of subjective

intent.

The discretionary function immunity, grounded on

the principle of separation of powers, shields

discretionary judgments made by government actors

from civil tort liability. Removing an entire category

of torts—those framed as “intentional” or involving

“bad faith’—from its protection provides incentive for

litigants to characterize claims in these terms merely

to avoid a valid immunity defense. This result would

defeat the very purpose of the immunity, which is

recognized by both federal statute and laws in a

majority of states.

The decision below especially threatens the

functionality of municipa) governments, which

provide a broad range of services and interact with

individuals on a frequent and personal level. Both

the nature and scope of local government

responsibilities generate substantial bases for tort

claims. Moreover, the denial of immunity for all

intentional torts results in particularly harsh

consequences due to the protracted litigation and

extensive discovery required to probe subjective

intent. For these reasons, both the monetary and

nonmonetary costs (eg., chilling of discretionary

action, distraction from official duties, and deterrence

of entry into public service) are amplified—and

unacceptable for governments whose functionality is

required to serve the public interest.

ARGUMENT

I. NARROWING THE SCOPE OF THE

DISCRETIONARY FUNCTION IMMUNITY

WILL IMPEDE THE FUNCTIONALITY OF

LOCAL GOVERNMENTS AND HARM THE

PUBLIC INTEREST.

The decision below puts at risk thousands of

discretionary municipal decisions that span an

extremely broad scope of activities. Given the close

relationship between local government

responsibilities and the community, many of these

municipal activities can give rise to tort claims. A

narrow interpretation of the discretionary function

immunity of the type adopted by the court below

threatens the policymaking capacity and

functionality of these entities as well as the critical

services they provide.

1. Municipal decision-making touches upon

countless aspects of every citizen’s life. To name just

a few, municipalities and local governments regulate

and supervise sanitation, water systems, street

construction and maintenance, fire departments,

ambulances, health departments, public

transportation, utilities (e.g., gas, electricity, cable

television), public schools, law enforcement, and

housing inspections. These services encompass

everything from transporting books between public

libraries to maintaining local parks. Municipalities

tackle large-scale decisions like whether to fund a

low-income housing project as well as the detailed

minutiae of how many part-time school crossing

guards to employ.

Yet, municipal activities cover much more than this

abbreviated list of public services. Structuring and

administering a tax system to, among other things,

support these services is a significant responsibility.

Local governments also manage urban planning and

zoning, the issuance of licenses and permits, and even

emergency responses to floods and forest fires.

The nature and scope of municipal activities make

these entities particularly vulnerable to intentional

tort claims. As one example, these governments are

in charge of many local safety measures that involve

decisions that could easily give rise to a tort claim,

such as an injury resulting from an insufficient

earthquake response or the absence of a stop sign. A

sample of intentional tort claims—assault, battery,

conversion, false imprisonment, trespass to land,

intentional infliction of emotional distress, fraud, and

invasion of privacy—when viewed in light of the

multitude of municipal responsibilities, demonstrates

how easily an individual could plead such a claim.

Local government activities touch upon the lives of all

community members to some extent, often through

both frequent and personal interactions, and could

easily generate hundreds if not thousands of tort

suits.

In addition, municipal decisionmaking is not

always suited for thorough analysis and debate.

Judgment calls may sometimes need to be made

quickly, such as a response to an unanticipated crisis.

Unfortunately, the potential for injury and the

consequent risk of tort liability may be much

higher—understandably so—for these types of

decisions.

Any expansion of tort liability will significantly

impede the functionality, flexibility, and ingenuity of

local governments. Given the scope and nature of

municipal responsibilities, these consequences are of

great public concern. Local governments require

exactly these qualities to provide effective services,

whether it is maintaining roads or providing shelter

to the homeless in inclement weather.

2. The danger of the decision below to the

functionality of local governments has_ several

dimensions: (a) increase in lawsuits filed; (b)

protracted and costly litigation; (c) distraction of

officials from government responsibilities; (d) limits

on discretion to avoid liability; (e) deterrence of entry

into public service; and (f) judicially-created

administrative standstill through direct or indirect

means (i.e., injunctive or monetary _ relief,

respectively).

First, the exception for subjective intent in the

decision below invites gamesmanship in the

characterization of claims to bypass the traditional

protection for discretionary functions. Given the

large-scale and often personal relationships between

municipal governments and community members, it

would be relatively easy to frame an injury as a

result of, for example, the intentional infliction of

emotional distress or invasion of privacy. Litigants

have greater incentive to bring these claims,

regardless of the merits, because more pressure is

brought to bear on government when the immunity is

not available.

Second, while all discretionary function challenges

impose some monetary costs on government, claims

that rely on a subjective element are uniquely costly

given the nature and amount of discovery required.

As the Court noted in Harlow v. Fitzgerald,

“questions of subjective intent so rarely can be

decided by summary judgment” and “also frame a

background in which there often is no clear end to the

relevant evidence.” 457 U.S. 800, 816-17 (1982).?

The case at hand provides ample support for the

Court’s conclusions: litigation began more than

seventeen years ago in January 1998 and includes

several rounds of appeal to the Nevada Supreme

Court and one appeal to this Court.

The rationale for the discretionary function

immunity is apparent in exactly these situations that

call up questions of subjective intent. “There are

special costs to ‘subjective’ inquiries of this kind”

because “the judgments surrounding discretionary

2In the context of qualified immunity, the Court in Harlow

concluded that “bare allegations of malice should not suffice to

subject government officials either to the costs of trial or to the

burdens of broad-reaching discovery.” 457 U.S. at 817-18. The

Court dispensed with the subjective element of the good faith

defense and held instead that government officials’ discretionary

functions are shielded from civil liability under an objective test:

as long as the “conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Id. at 818.

&° on almost inevitably are influenced by the

decisionmaker’s experiences, values, and emotions.”

Harlow, 457 U.S. at 816. Attempting to disentangle

these “experiences, values, and emotions” from other

decisionmaking criteria, some of which may also be

subjective, would prove a very difficult, if not

impossible, task—and at least a lengthy one.

Meanwhile, for situations where the challenged

decision was made not by a single actor but by a

government entity comprised of numerous

individuals, these challenges will be multiplied by a

large factor.

Third, lawsuits that require a showing of subjective

intent impose weighty nonmonetary costs in the form

of distraction from official duties, the chilling of

discretionary action, and deterrence of entry into

public sc: vice. Harlow, 457 U.S. at 816-17; see also

Richardson v. McKnight, 521 U.S. 399, 407-08 (1997)

(purpose of discretionary function immunity is

“protecting government's ability to perform its

traditional functions by providing immunity where

necessary to preserve the ability of government

officials to serve the public good or to ensure that

talented candidates were not deterred by the threat

of damages suits from entering public service.”)

(internal quotation marks omitted). Protracted

litigation and extraordinary discovery costs will force

local governments to divert significant resources and

pull personnel from other duties to meet the

8An order denying a claim of discretionary function

immunity, unlike qualified immunity, has not been held to

constitute a “final decision” subject to interlocutory appeal

under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 611

(1986). Therefore, the government could not head off litigation

at an earlier stage unless a particular exception otherwise

applied. See 28 U.S.C. § 1292.

associated demands, deter individuals from entering

public service, or encourage them to leave due to fear

of or frustration with these processes.

In the alternative—or, worse, in addition—local

governments will dramatically constrain officials’

discretion in order to limit liability. Tying the hands

of local government in this way would adversely

affect entire communities that require quick or

creative action to address unanticipated or novel local

issues. In a society that wants the best and brightest

to join its ranks, and wishes its state and local

governments to function flexibly and innovatively as

laboratories of democracy, any limits on discretionary

action must be narrowly tailored, not categorical.

Furthermore, discovery in these suits is not just

different in degree but in kind; it results in

particularly harsh chilling effects due to the “broad-

ranging discovery and the deposing of numerous

persons .. . [that] can be peculiarly disruptive of

effective government.” Harlow, 457 U.S. at 817. To

establish subjective intent, the parties may question

colleagues, close friends, and family members to

probe the mental state of the government actor.

While the humiliation or embarrassment of the

individual official may not warrant consideration, the

chilling of his or her actions certainly does. See

Scheuer v. Rhodes, 416 U.S. 232, 242 (1974) (“The

concept of immunity assumes [that officials may err]

and goes on to assume that it is better to risk some

error and possible injury from such error than not to

decide or act at all.”), overruled on other grounds,

Davis v. Scherer, 468 U.S. 183 (1984). This type of

discovery deters entry to, and discretionary action in,

government service—in addition to its prohibitive

impact on functionality due to distraction from

official duties.

Finally, the concrete relief granted in such cases

would restrict officials’ discretion and thus local

governments’ functionality. Monetary _ relief,

particularly punitive damages if available for

intentional government torts,‘ diverts resources and

constrains action both directly (i.e., insufficient

funding) and indirectly (i.e., deterrence). Injunctive

relief would directly limit government action and

could have especially far-reaching effects depending

on its scope and duration.

The total discard of immunity for subjective intent

tort claims imposes costs that are much too high.

The extensive discovery, ease and threat of litigation,

and potentially wide-ranging judicial relief will deter

individuals from choosing to serve in government and

constrain those that do. Even if particular

individuals may derive some remedial benefit in the

event of a victory, the government—and, perhaps

more importantly, the public—can ill afford these

costs.

Il. THE DECISION BELOW CONTRADICTS

THE VIEW OF A MAJORITY OF CIRCUITS

THAT SUBJECTIVE INTENT IS

IRRELEVANT TO THE DISCRETIONARY

FUNCTION IMMUNITY INQUIRY.

The decision of the Nevada Supreme Court departs

from this Court’s precedent as well as decisions from

the majority of other circuits recognizing that

subjective intent is irrelevant to discretionary

function immunity. Although the Second Circuit has

previously held otherwise, its decisions—like the

decision below—rest on ) fundamental

‘In this case the jury awarded respondent $250 million in

punitive damages, although the Nevada Supreme Court

reversed this award on principles of comity.

misunderstanding of the basis of the discretionary

function exception.

1. This Court has repeatedly said that the

discretionary function exception is intended “to

prevent judicial second-guessing of legislative and

administrative decisions grounded in _ social,

economic, and political policy through the medium of

an action in tort.” Berkovitz v. United States, 486

U.S. 531, 536-37 (1988). The immunity applies

“whether or not the discretion involved be abused”

and is grounded “on a concern for separation of

powers.” 28 U.S.C. § 2680(a); Owen v. City of

Independence, 445 U.S. 622, 648 (1980). It covers

government conduct that (1) “involves an element of

judgment or choice” and (2) is “of the kind that the

discretionary function exception was designed to

shield,” meaning “governmental actions and decisions

based on considerations of public policy.” Berkovitz,

486 U.S. at 536-37; see also '/nited States v. Gaubert,

499 U.S. 315, 325 (1991). The immunity is broadly

construed: it is not limited to policymaking and

planning decisions but can shield conduct at the

implementation stage as long as discretionary

judgment is exercised. Gaubert, 499 U.S. at 325. The

Court has also noted that “the focus of the inquiry is

not on the agent’s subjective intent in exercising the

discretion .. . but on the nature of the actions taken

and on whether they are susceptible to policy

analysis.” Id.

The majority of circuit courts have recognized, in

light of this Court’s precedent, that subjective intent

is not relevant in the discretionary function analysis.

Four circuit courts that have directly addressed this

question have concluded, in line with Gaubert, that

subjective intent is immaterial in assessing whether

the discretionary function exception applies.

Reynolds v. United States, 549 F.3d 1108, 1112 (7th

Cir. 2008); Franklin Sav. Corp. v. United States, 180

F.3d 1124, 1137 (10th Cir. 1999); Irving v. United

States, 162 F.3d 154, 167 (1st Cir. 1998) (en banc);

Fisher Bros. Sales v. United States, 46 F.3d 279, 286

(3d Cir. 1995) (en banc). In addition to these,

decisions in the Fourth, Fifth, Sixth, Eighth, Ninth,

and Eleventh Circuits agree that the immunity

inquiry under Gaubert looks only at the objective

nature of the conduct. Pet. for Cert. 17 n.4. The

Fourth, Ninth, and D.C. Circuits have also rejected

the argument that intentional torts are categorically

exempt from the discretionary function immunity.

Medina v. United States, 259 F.3d 220, 226 (4th Cir.

2001); Gasho v. United States, 39 F.3d 1420, 1435

(9th Cir. 1994); Gray v. Bell, 712 F.2d 490, 507 (D.C.

Cir. 1983).

2. But, the Second Circuit has taken a contrary

position and held that the immunity does not apply if

the injury was a result of carelessness or laziness, as

these do not constitute policy-based judgments.

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

475 (2d Cir. 2006) (per curiam); Coulthurst v. United

States, 214 F.3d 106, 111 (2d Cir. 2000). Adopting

this reasoning, the Seventh Circuit has also

concluded that this “type of carelessness would not be

covered by the discretionary function exception.”

Palay v. United States, 349 F.3d 418, 432 (7th Cir.

2003) (reversing order of dismissal of particular

claims because further factual development was

necessary to determine if discretionary function

exception applied); see also Keller v. United States,

771 F.3d 1021, 1025-26 (7th Cir. 2014) (seeing no

evidence in the record to contradict claims of prison

guards’ laziness or inattentiveness and reversing

grant of summary judgment on basis of discretionary

function exception). Although neither court went so

far as to find that all bad-faith or intentional acts are

exempt from the discretionary function immunity,

their decisions do invite inquiry into a government

actor's mental state, which often requires further

factual development to determine if the immunity

applies. See, eg., Keller, 771 F.3d at 1025-26

(reversing grant of summary judgment); Triestman,

470 F.3d at 476 (reversing order of dismissal); Palay,

349 F.3d at 432 (reversing order of dismissal);

Coulthurst, 214 F.3d at 111 (reversing order of

dismissal).

These decisions have revealed the subjective intent

issue as an unsettled question and provided

precedent that has already generated and will

generate more contrary caselaw from other courts.

While the Second Circuit decisions could be read

more narrowly to only except claims of laziness or

carelessness from the discretionary function

immunity,® these opinions have opened the door to

questions regarding the mental state of government

actors and given rise to much broader limitations on

the immunity. The decision below, holding that all

intentional or bad-faith tort claims are categorically

5In fact, in 2008, after Palay but before Keller, the Seventh

Circuit expressly stated in Reynolds that allegations of

“malicious and bad faith conduct” do not defeat a discretionary

function immunity defense because “subjective intent is

irrelevant to [the] [immunity] analysis.” 549 F.3d at 1112.

® Both Second Circuit cases were brought by pro se litigants,

and the court acknowledged its “policy of liberally construing

pro se submissions” as part of its “obligation .- to make

reasonable allowances to protect pro se litigants from

inadvertent forfeiture of important rights because of their lack

of legal training.” Triestman, 470 F.3d at 475; see also id. (court

read a negligent guard theory into the pro se complaint in

Coulthurst).

excluded from the immunity, is merely one example

of a very expansive reading based on these decisions.

Another court could find that the immunity does not

apply to tort claims alleging reckless or consciously

indifferent conduct, as not “of the kind that the

discretionary function exception was designed to

shield.” Berkovitz, 486 U.S. at 536. But, these

readings miss the point: the immunity applies not to

a particular action taken but to all general conduct of

a “nature” that is “susceptible to policy analysis.”

Gaubert, 499 U.S. at 325; see also 28 U.S.C. § 2680(a)

(immunity applies “whether or not the discretion

involved be abused”). Mental state is irrelevant; the

purpose of the immunity derives from the need to

protect the functionality of governments, even if that

sometimes means relief is unavailable for an

individual who suffers an injury.

The danger of incorrect and _ overbroad

interpretations cannot be overlooked in light of the

scope of the federal statute as well as the number of

states—more than half—that recognize a

discretionary function exception,’ many with

language identical to that in 28 U.S.C. § 2680(a).

7 See, e.g., Alaska Stat. § 09.50.2650; Ariz. Rev. Stat. Ann. § 12-

820.01(B); Cal. Gov't Code § 820.2; Del. Code Ann. tit. 10,

§§ 4001, 4011; Ga. Code Ann. § 50-21-24(2); Haw. Rev. Stat.

§ 662-15(1); Idaho Code Ann. § 6-904(1); Ind. Code § 34-13-3-

3(7); lowa Code § 669.14(1); Kan. Stat. Ann. § 75-6104(e); Me.

Rev. Stat. tit. 14, § 8104-B(3); Mass. Gen. Laws ch. 258, § 10(b);

Minn. Stat. Ann. § 3.736(3)(b); Miss. Code Ann. § 11-46-9(1)(d);

Neb. Rev. Stat. § 81-8,219(1); Nev. Rev. Stat. § 41.032(2); N.H.

Rev. Stat. Ann. § 541-B:19(1)(c); N.J. Stat. Ann. § 59:2-3; N.D.

Cent. Code § 32-12.2-02(3)(b); Okla. Stat. tit. 61, § 155(5); Or.

Rev. Stat. § 30.265(6)(c); 42 Pa. Cons. Stat. Ann. § 8524(3); S.C.

Code Ann. § 15-78-60(5); Tex. Civ. Prac. & Rem. Code Ann.

§ 101.056; Utah Code Ann. § 63G-7-201(4)(a); Vt. Stat. Ann. tit.

12, § 5601(e)(1).

Without further clarification from the Court, the

discretionary function immunity is at risk of

sweeping limitations which will exacerbate the

current circuit split and severely restrict the

discretion exercised by federal, state, and municipal

governments.

CONCLUSION

For the foregoing reasons, and those set forth in the

petition for writ of certiorari, the petition should be

granted and the judgment of the Nevada Supreme

Court should be reversed.

Respectfully submitted,