                  IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 41882
RYAN M. MITCHELL,                                     )
                                                      )
      Plaintiff-Appellant,                            )
                                                      )
v.                                                    )
                                                      )         Twin Falls, November 2015
STATE OF IDAHO, a governmental entity,                )
and SUSAN SIMPSON, as Conservator and                 )         2016 Opinion No. 24
Guardian of GERALD DURK SIMPSON,                      )
                                                      )         Filed: March 3, 2016
      Defendants-Respondents,                         )
                                                      )         Stephen W. Kenyon, Clerk
and                                                   )
                                                      )
DOES 1-25,                                            )
                                                      )
      Defendants.                                     )
         Appeal from the District Court of the Sixth Judicial District, State of Idaho,
         Bannock County. Hon. Robert C. Naftz, District Judge.

         District court order granting summary judgment on a victims’ rights claim and
         negligence claim, affirmed in part, reversed in part and remanded.

         Mauk & Burgoyne and Fisher Rainey Hudson, Boise, for appellant. Rebecca
         Rainey argued.

         Benoit, Alexander, Harwood & High, LLP, Twin Falls, for respondent. Bren E.
         Mollerup argued.

                             _________________________________

BURDICK, Justice
         Ryan M. Mitchell appeals the Bannock County district court’s order granting summary
judgment in favor of the State of Idaho. Specifically, Mitchell appeals the district court’s
decision that (1) the Idaho Tort Claims Act (ITCA) shielded the State from liability for its
decision to discontinue mental health services for Gerald Durk Simpson; and (2) the victims’
rights laws do not provide a private cause of action for declaratory and injunctive relief against a
state agency. We affirm in part, reverse in part, and remand.


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                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       This case arises out of a shooting that occurred on September 27, 2010. That day, Gerald
Durk Simpson shot Ryan Mitchell in the back outside of a coffee shop in Pocatello. Prior to the
shooting, Simpson had been receiving mental health services from the Idaho Department of
Health and Welfare’s Adult Mental Health program. In fact, Simpson had been receiving
services from the Idaho Department of Health and Welfare (IDHW) for most of his adult life.
       However, on June 23, 2010, IDHW sent a letter to Simpson informing him that he was
being released from its program. The letter informed Simpson that he no longer qualified for the
services that he had been receiving from IDHW.
       The shooting occurred a little over three months after Simpson was released from
IDHW’s care and custody. On September 30, 2010, the Bannock County Prosecuting Attorney’s
Office filed a charge of Aggravated Battery against Simpson with notice that the State would
seek an enhancement penalty for the use of a deadly weapon in the commission of a crime.
       On October 8, 2010, approximately ten days after the shooting, psychologist Daniel
Traughber, Ph.D., prepared a memorandum (Traughber Memorandum) on behalf of the IDHW.
The Traughber Memorandum explained the processes and procedures that were used to
implement the budget cuts so that patient mental health services would be terminated in a way
that “reduced the risk of harm to patients and/or the community.”
       On May 3, 2012, the State filed a petition with the district court to have a Conservator
and Guardian appointed for Simpson. On August 30, 2012, the district court dismissed the
criminal charges against Simpson due to Simpson’s lack of competency to stand trial. Shortly
thereafter, Mitchell filed suit in the Bannock County district court alleging, among other claims,
that the State violated Mitchell’s constitutional and statutory victims’ rights and that the State
was negligent when it discontinued Simpson’s services. Mitchell sought declaratory and
injunctive relief for his victims’ rights claim and sought damages for his negligence claim under
the ITCA.
       On December 23, 2013, the district court issued its memorandum decision and order,
which granted summary judgment to the State on both the victims’ rights claim and the
negligence claim. As to the victims’ rights claim, the district court reasoned that declaratory and
injunctive relief are not provided for under the constitutional and statutory victims’ rights
provisions, and, consequently, those remedies were not available to enforce the provisions. With

                                                2
respect to Mitchell’s negligence claim, the district court determined that the budget cuts were the
primary reason for the decision to terminate Simpson’s services, which meant the State was
carrying out a discretionary function and therefore entitled to immunity. Mitchell timely
appealed to this Court.
                                      II.    ISSUES ON APPEAL
   1. Whether the district court erred when it granted summary judgment to the State on
      Mitchell’s negligence claim.
   2. Whether the district court erred in granting summary judgment on Mitchell’s victims’
      rights claim.
                               III.         STANDARD OF REVIEW
       This Court reviews a summary judgment order under the same standard the district court
used in ruling on the motion. Kolln v. Saint Luke’s Reg’l Med. Ctr., 130 Idaho 323, 327, 940
P.2d 1142, 1146 (1997). That is, summary judgment is appropriate if “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
I.R.C.P. 56(c). We construe disputed facts in favor of the non-moving party, and all reasonable
inferences that can be drawn from the record are to be drawn in favor of the non-moving party.
Major v. Sec. Equip. Corp., 155 Idaho 199, 202, 307 P.3d 1225, 1228 (2013).
       In considering a motion for summary judgment for a governmental entity involving a
question of immunity under the ITCA, the reviewing court should determine whether tort
recovery is allowed under the laws of Idaho. Dorea Enter., Inc. v. City of Blackfoot, 144 Idaho
422, 424, 163 P.3d 211, 213 (2007) (quoting Harris v. State Dep’t of Health & Welfare, 123
Idaho 295, 298 n.1, 847 P.2d 1156, 1159 n.1 (1992)). If tort recovery is allowed in Idaho, the
Court then must determine whether an exception to liability under the tort claims act shields the
government from liability. Id. If no exception to liability applies, the Court must then determine
whether the merits of the claim entitle the moving party to summary judgment. Id.
       “On appeal from summary judgment, this Court exercises free review over interpreting a
statute’s meaning and applying the facts to the law.” Teurlings v. Larson, 156 Idaho 65, 69, 320
P.3d 1224, 1228 (2014) (internal quotation omitted).
                                            IV.   ANALYSIS
       This appeal involves two distinct issues. The first is whether the district court erred when
it granted summary judgment in favor of the State on Mitchell’s negligence claims. This issue

                                                   3
turns on whether IDHW’s decision to release Simpson from its Adult Mental Health program
was a discretionary function or an operational function. The second issue is whether the district
court erred when it granted summary judgment in favor of the State on Mitchell’s victims’ rights
claim. Each issue will be addressed in turn below.
A. The district court erred when it granted summary judgment in favor of the State on
   Mitchell’s negligence claim.
        Mitchell argues that the district court erred when it granted summary judgment in favor
of the State on his negligence claim because the State’s decision to discontinue Simpson’s
mental health services was not a discretionary function that entitles the State to immunity.
Alternatively, Mitchell argues that the affidavits the district court relied on to grant summary
judgment were inadmissible and therefore summary judgment was inappropriate. “The
admissibility of evidence contained in affidavits and depositions in support of or in opposition to
a motion for summary judgment is a threshold matter to be addressed before applying the liberal
construction and reasonable inferences rule to determine whether the evidence creates a genuine
issue of material fact for trial.” Fragnella v. Petrovich, 153 Idaho 266, 271, 281 P.3d 103, 108
(2012). Thus, we address the evidentiary issue first.
        Mitchell argues that the affidavits the district court relied on to grant summary judgment
were inadmissible. Mitchell contends that the district court erred in denying his request to strike
two of the State’s affidavits—the Jodi Osborn affidavit and the Sue Chadwick affidavit—
because neither affidavit met the admissibility standards.
        This Court reviews challenges to a trial court’s evidentiary rulings on a summary
judgment motion for an abuse of discretion. Bybee v. Gorman, 157 Idaho 169, 173, 335 P.3d 14,
18 (2014). “This Court engages in a three-part inquiry when reviewing a lower court’s decision
for an abuse of discretion: (1) whether the lower court rightly perceived the issue as one of
discretion; (2) whether the court acted within the boundaries of such discretion and consistently
with any legal standards applicable to specific choices; and (3) whether the court reached its
decision by an exercise of reason.” Id. (citation omitted). The district court’s determination on a
motion to strike is also reviewed under this standard. Teurlings, 156 Idaho at 75, 320 P.3d at
1234.
        1. The Osborn affidavit
        As mentioned above, Mitchell asserts that the Osborn affidavit does not satisfy the
requirements of I.R.C.P. 56(e) because Osborn does not state that the affidavit is based on her
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personal knowledge. I.R.C.P. 56(e) states that affidavits supporting and opposing a motion for
summary judgment “shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” I.R.C.P. 56(e). These requirements “are not satisfied by an affidavit that
is conclusory, based on hearsay, and not supported by personal knowledge.” State v. Shama Res.
Ltd. P’ship, 127 Idaho 267, 271, 899 P.2d 977, 981 (1995). See also Sprinkler Irrigation Co.,
Inc. v. John Deere Ins. Co., Inc., 139 Idaho 691, 696–97, 85 P.3d 667, 672–73 (2004); Oats v.
Nissan Motor Corp. in U.S.A., 126 Idaho 162, 166, 879 P.2d 1095, 1099 (1994).
       The district court, after citing I.R.C.P. 56(e)’s requirements, determined that the Osborn
affidavit was admissible. Specifically, the court reasoned:
               The Affidavit of Jodi Osborn states that she is the Financial Executive
       Officer for the Idaho Department of Health and Welfare. The affidavit goes on to
       state that the budget for the Department of Health and Welfare was cut by
       $36,550,600, not including decreases in matching federal funds. That information
       is relevant to the primary issue of whether the release of Defendant Simpson was
       related to budgetary constraints. Ms. Osborn clearly has personal knowledge of
       the budget cuts through her role as the Financial Executive Officer for the Idaho
       Department of Health and Welfare. As such, this Court hereby finds the Affidavit
       of Jodi Osborn to be admissible and relevant, and the request to strike that
       affidavit is hereby DENIED.
Based on the foregoing, we conclude that the district court acted within the boundaries of its
discretion and consistent with the applicable legal standards when it denied Mitchell’s motion to
strike the Osborn affidavit. Furthermore, the district court reached its decision through an
exercise of reason. The Osborn affidavit states that Osborn is a resident of Boise; that she is the
Financial Executive Officer for the IDHW; that she has held the position of Financial Executive
Officer for a little over two-and-a-half years; that her responsibilities are to manage the financial
staff and operations for IDHW; and that the legislature cut IDHW’s budget between 2009 and
2010 by $36,550,600, and that that figure did not reflect the resulting decrease in IDHW’s
federal matching funds.
       Although the affidavit does not explicitly aver that the facts contained therein are based
on personal knowledge, the fact that Osborn was the Financial Executive Officer for the IDHW
is sufficient to establish that the details regarding the budget cutbacks were based on personal
knowledge. There is no case law in Idaho to suggest that an affidavit must explicitly aver that it
is based on personal knowledge. Rather, I.R.E. 602 suggests the opposite. That rule provides that


                                                 5
“[e]vidence to prove personal knowledge may, but need not, consist of the testimony of the
witness.” I.R.E. 602. Thus, “an affidavit need not contain an explicit recital of personal
knowledge when it can be reasonably inferred from its contents that the material parts thereof are
within the affiant’s personal knowledge.” 2A C.J.S. Affidavits § 47. See also Jeff Rambin,
Attacking Errors in Affidavits Used As Summary Judgment Proof, 46 Baylor L. Rev. 789, 805
(1994) (listing cases where the personal knowledge requirement for affidavits was satisfied
where they stated that the affiant was employed where the relevant acts occurred and when they
occurred). Because the Osborn affidavit avers that Osborn was the Financial Executive Officer
for IDHW and that she was responsible for managing the financial staff and operations for
IDHW, the district court could reasonably infer that Osborn had personal knowledge of the
budget cuts. Thus, we hold that the district court did not abuse its discretion when it denied
Mitchell’s request to strike the Osborn affidavit.
         2. The Chadwick affidavit and accompanying exhibits
         Mitchell also asserts that the Chadwick affidavit and accompanying exhibits are
inadmissible. Mitchell contends that the exhibits cannot be properly authenticated by Chadwick
and that they do not fall under the business records exception to the rule against hearsay. We
agree.
         The Chadwick affidavit avers that Chadwick is an employee of the State of Idaho and
that the affidavit was made based on Chadwick’s own personal knowledge. It further states that
in her position as Office Services Supervisor, Chadwick became familiar with the documents
maintained by IDHW; identifies each of the three exhibits attached to her affidavit; states that
each of the exhibits was maintained in the normal course of business at IDHW; and states that
each of the exhibits were true and correct copies of the documents maintained in the ordinary
course and scope of business of IDHW. The first exhibit attached to the Chadwick affidavit was
the Traughber Memorandum. The Second exhibit was a copy of IDHW’s June 23, 2010 letter to
Simpson informing him that his services were being discontinued. The third attachment was a
copy of an interdepartmental email regarding department resources.
         The district court denied Mitchell’s request to strike the Chadwick affidavit and its
accompanying exhibits on the basis that the affidavit was made on Chadwick’s personal
knowledge and that the exhibits were admissible under the business records exception to the rule
against hearsay. Mitchell asserts that Chadwick, as office services supervisor for IDHW, could

                                                 6
not properly authenticate the exhibits because she did not author them. Mitchell further argues
that the exhibits do not fall under the business records exception because Chadwick’s affidavit
only states that the documents had been maintained by the State, not that they were produced in
the ordinary course of business, at or near the time of the occurrence, or that they were not
created in anticipation of trial.
        Idaho Rules of Evidence 803(6), the business records exception to the hearsay rule,
provides, in relevant part:
        Rule 803. Hearsay Exceptions; availability of the declarant immaterial.
               The following are not excluded by the hearsay rule, even though the
        declarant is available as a witness:
        ...
        (6) Records of Regularly Conducted Activity. A memorandum, report, record,
        or data compilation, in any form, of acts, events, conditions, opinions, or
        diagnoses, made at or near the time by, or from information transmitted by, a
        person with knowledge, if kept in the course of a regularly conducted business
        activity, and if it was the regular practice of that business activity to make the
        memorandum, report, record, or data compilation, all as shown by the testimony
        of the custodian or other qualified witness, or by certification that complies with
        Rule 902(11), unless the source of information or the method or circumstances of
        preparation indicate lack of trustworthiness.
The general requirements for the admission of business records are that the documents be
“produced in the ordinary course of business, at or near the time of occurrence and not in
anticipation of trial.” Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 711, 760 P.2d
1120, 1127 (1988). These foundational requirements “supply the degree of trustworthiness
necessary to justify an exception to the rule against hearsay.” Id. “It is necessary that the
circumstances behind the creation of the business records imply a high degree of veracity.” o
Hurtado v. Land O’Lakes, Inc., 147 Idaho 813, 815, 215 P.3d 533, 535 (2009) (quoting
Christensen v. Rice, 114 Idaho 929, 934, 763 P.2d 302, 307 (Ct. App. 1988)).
        “The records or reports sought to be admitted into evidence under the business records
exception to the hearsay rule need not be authenticated by the person who made the records, but
it is necessary that the records be authenticated by a person who has custody of the record as a
regular part of his or her work or who has supervision of its creation.” Shea v. Kevic Corp., 156
Idaho 540, 547, 328 P.3d 520, 527 (2014) (quoting Henderson v. Smith, 128 Idaho 444, 450, 915
P.2d 6, 12 (1996)). Moreover, Rule 902(11) explicitly states that business records are self-


                                                7
authenticating where the original or duplicate of the record of regularly conducted activity is
certified by the custodian or other qualified individual. I.R.E. 902(11). The custodian or qualified
individual must certify that the record
        (i) was made, at or near the time of the occurrence of the matters set forth, by (or
        from information transmitted by) a person with knowledge of those matters, (ii) is
        kept in the course of the regularly conducted activity and (iii) was made by the
        regularly conducted activity as a regular practice, unless the sources of
        information or the method or circumstances or preparation indicate a lack of
        trustworthiness . . . .
Id. The rules state that “certifies” means “a written declaration under oath subject to penalty of
perjury. . . .” Id.
        Here, although Chadwick averred that the documents were kept in the normal course of
business at IDHW and that she was familiar with them through her role as office services
supervisor, there is nothing in the affidavit stating that as office services supervisor, Chadwick
had custody of the records as a regular part of her work or that she had supervision of their
creation. Moreover, the Traughber Memorandum, which was prepared a little over a week after
the shooting, purports to describe “the selection process of clients for closure and the steps that
were taken in order to reduce the possibility of harm to clients and/or the community.” However,
there was no foundation to show that the Traughber Memorandum was prepared in the normal
course of business. In any event, because the Chadwick affidavit failed to establish the
foundational requirements of the business records exception, we hold that the district court
abused its discretion in denying Mitchell’s motion to strike the affidavit and its accompanying
exhibits.
        Without the Chadwick affidavit and accompanying exhibits, there was insufficient
admissible evidence for the district court to make a determination as to whether the decision to
cut Simpson from IDHW’s mental health services was operational or discretionary. Given the
limited nature of the facts before it, it was error for the district court to hold that the State’s
decision to close Simpson’s file was discretionary. Accordingly, we hold that the district court
erred in granting summary judgment to the State on Mitchell’s negligence claim.
        We note that even if the Chadwick affidavit and accompanying exhibits were admissible,
there were insufficient facts for the trial court to determine whether IDHW’s decision to cut
Simpson from its health services was operational or discretionary. It is clear that the complaint
alleges that when IDHW made the decision to close Simpson’s file, it negligently followed, or

                                                 8
failed to follow, procedures that were put into place to determine whether a client’s file should
be closed. The evidence does not indicate who made the decision to close Simpson’s file in
particular or how that decision was made.
        Thus, on remand, these are some issues of fact that came to mind as this Court worked on
this case: (1) whether there were policies or procedures in place for determining which client
files should be closed; (2) how the decision was made to close Simpson’s file; (3) who made the
decision to close Simpson’s file and whether that individual was authorized to make such a
decision; and (4), assuming policies and procedures were in place to determine client file
closures, whether IDHW followed those policies or procedures.
        In making these determinations, there appear to be some discrepancies that may need to
be resolved. First, the letter IDHW sent to Simpson informing him that he no longer qualified for
IDHW’s services was utterly inconsistent with the procedures identified in the Traughber
Memorandum that IDHW allegedly followed to determine which clients’ files to close. More
specifically, the June 23, 2010 letter IDHW sent to Simpson appears to suggest that Simpson’s
file was being closed because, after reviewing eligibility guidelines prescribed by the legislature,
Simpson no longer qualified for services. Indeed, the letter informed Simpson that IDHW was
closing his file because Simpson “[did] not meet the criteria for [IDHW’s] intensive level of
services.” The Traughber Memorandum on the other hand, which was written on October 8,
2010, approximately ten days after the shooting, suggests that the decision to close Simpson’s
file may have been based on budget cuts together with a reassessment of Simpson’s needs.
However, as mentioned above, there was no testimony linking the procedures outlined in the
Traughber Memorandum to the decision to close Simpson’s file, nor to identify who had the
authority to make such a decision.
        Once the issues of material fact are resolved, the district court should look to this Court’s
decisions1 involving the operational/discretionary distinction to determine whether the decision
to close Simpson’s file was operational or discretionary. If, for example, the evidence on remand
indicates that IDHW closed Simpson’s file based on policy reasons such as budgetary constraints
or other factors, the decision could be discretionary, as it would involve planning rather than


1
  In particular, this Court’s decisions in Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986) and
Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994), together with the discussion of the distinction
between operational and discretionary decisions in Sterling v. Bloom, 111 Idaho 211, 226–33, 723 P.2d 755, 770–77
(1986), may be of particular help in this case.

                                                       9
operational activity, and the State would be immune from liability even if the decision was
negligently made. If, on the other hand, the evidence indicates that IDHW had policies or
procedures in place to determine which clients’ files should be closed, then IDHW was obligated
to carry out or follow those policies and procedures with due care and may be liable for any
failure to do so.
B. The district court did not err when it granted summary judgment in favor of the State
   on Mitchell’s victims’ rights claim.
        Mitchell argues that the district court erred when it granted summary judgment to the
State on his victims’ rights claim on the basis that neither the Idaho Constitution nor the Victims’
Rights Statute create a mechanism for enforcement of those rights. Mitchell contends that
because the Constitution states that the provisions are self-executing, this Court may grant
declaratory and injunctive relief to enforce the rights. The State counters that the district court
correctly determined that the victims’ rights provisions do not explicitly allow for declaratory or
injunctive relief and that such relief is therefore not available to enforce the victims’ rights
provisions. We do not reach the merits of these contentions, however, because the issue is moot.
        “An issue becomes moot if it does not present a real and substantial controversy that is
capable of being concluded through judicial decree of specific relief.” Ameritel Inns, Inc. v.
Greater Boise Auditorium Dist., 141 Idaho 849, 851, 119 P.3d 624, 626 (2005). Mootness
applies not only to a dead issue, but also when an appellant lacks a legal interest in the outcome.
State v. Hoyle, 140 Idaho 679, 682, 99 P.3d 1069, 1072 (2004). Mootness also applies when a
favorable judicial decision would not result in any relief. State v. Rogers, 140 Idaho 223, 227, 91
P.3d 1127, 1131 (2004). Thus, this Court will not hear and resolve an issue that presents no
justiciable controversy and a judicial determination will have no practical effect on the outcome.
Hoyle, 140 Idaho at 682, 99 P.3d at 1072. Rather, “[t]his court may dismiss an appeal when it
appears that only a moot question is involved.” Downing v. Jacobs, 99 Idaho 127, 127–28, 578
P.2d 243, 243–44 (1978).
        Here, even if this Court rendered a favorable decision for Mitchell on his victims’ rights
claim, that decision would not result in any relief for Mitchell. The underlying criminal charges
against Simpson have been dropped. A judicial determination on this issue would therefore have
no practical effect on the outcome: there are no further proceedings for which Mitchell could
request or receive notice. The only practical effect a favorable judgment for Mitchell would have
is this Court restating the clear rights already established under Idaho Constitution article I,
                                                10
section 22 and Idaho Code section 19-5306 and stating that the prosecutor erred when it failed to
provide Mitchell notice of those rights. Thus, declaratory or injunctive relief would have no
effect on the outcome here. For these reasons, we hold that the issue is moot.2 Consequently, the
district court did not err when it granted summary judgment in favor of the State on Mitchell’s
victims’ rights claim.
                                               V.      CONCLUSION
         We reverse the district court’s grant of summary judgment to the State on Mitchell’s
negligence claim. We affirm the district court’s grant of summary judgment on Mitchell’s
victims’ rights claim because that issue is moot. We remand for further proceedings consistent
with this opinion. No costs are awarded on this appeal.
         Chief Justice J. JONES and Justices EISMANN, W. JONES and HORTON, CONCUR.




2
  Although we hold that the issue is moot, we note that it is clear in this case that the prosecutor failed to fulfill his
duty to inform Mitchell of his rights pursuant to Idaho Constitution article 1, section 22 and Idaho Code section 19-
5306. The victims’ rights provisions are mandatory and require the prosecutor at the initiation of criminal
proceedings to notify victims of their rights. That was not done in this case. If notice had been given to Mitchell, he
might have understood what his rights were from the start and could have requested notice of future proceedings,
including notice of the possibility of Simpson being released.

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