    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JANET RAE TIBBITS, individually and as
guardian for JOSEPH TIBBITS, her minor                     No. 71147-4-1              r-J
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son, and as attorney in fact for her                                                   c-n   '—j^_,
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daughter, MYCHELLE LEIGH MILES-                            DIVISION ONE                rn     ...! -'
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TIBBITS,
                                                           UNPUBLISHED OPINION-^              =
                      Appellant,

               v.



STATE OF WASHINGTON
 DEPARTMENT OF CORRECTIONS,

                      Respondent.                          FILED: February 17, 2015


       Appelwick, J. — Tibbits appeals from summary judgment dismissal of her tort

action against the DOC related to its supervision of Miles. The DOC modified the terms

of Miles' community custody conditions, allowing him to travel out of Spokane County to

a treatment facility without requiring that his travel be supervised. Once in King County,

Miles failed to report to the treatment facility, violated the terms of a no-contact order, and

traumatized Tibbits and her son. Modifying conditions of community custody is a quasi-

judicial function protected by judicial immunity. We affirm.

                                           FACTS


       On June 12, 2009, Kevin Miles went to Janet Tibbits's house while Tibbits was

home with her son. Miles was drunk and forced his way into the home. Tibbits was able

to pack some clothing and she and her son left the house. Miles remained in Tibbits's

house for several days and left three suicide notes. After the incident, Tibbits and her

children went into counseling for stress and trauma.
No. 71147-4-1/2




       Miles and Tibbits had been involved in a volatile relationship for several years

before the incident. The relationship began in 1991 and a no-contact order (NCO) was

issued against Miles shortly thereafter. On multiple occasions after the NCO was issued,

Miles violated it, was arrested, and was incarcerated. In September 2005, Miles violated

the NCO by appearing at Tibbits's house. On that occasion, Miles tried to hang himself

from a tree in her front yard with an extension cord. Miles was granted a drug offender

sentencing alternative (DOSA) and was sentenced to 19 months in confinement and 19

months of community custody.       Miles was prohibited from using alcohol and from

contacting Tibbits.

       After his release, Miles was arrested and sanctioned on several occasions for

violating his conditions of supervision relating to alcohol use and participation in

treatment. Miles was also arrested for violating the NCO on November 17, 2007. Due to

his alcohol use, Miles's DOSA was eventually revoked, and he returned to prison. The

court imposed 18 months of community custody to be served after Miles's release. Miles

wanted to be released to his mother's home in Pierce County, but in order to reduce the

likelihood of contact between Miles and Tibbits, the DOC release staff required that he be

released in Spokane. Miles was released from confinement on September 25, 2008 and

he was transported to Spokane.

       In Spokane, Laura Burgor-Glass was assigned to be Miles's Community Custody

Officer (CCO).    From October 2008 through June 2009, Burgor-Glass had frequent

contact with Miles. Burgor-Glass consulted with her supervisor, Todd Wiggs, about

Miles's case during the period of supervision.
No. 71147-4-1/3




       Between October 2008 and March 2009, Miles continued to drink alcohol, violating

the terms of his community custody. Consequently, Miles served some time in formal

detention. On June 3, 2009, after additional reports of Miles's drinking, Burgor-Glass took

Miles into custody and drove him to check in at Community Detox Services (Detox), a

resource used by the DOC to place supervisees into treatment programs. Detox was

tasked with finding an available in-patient treatment facility that would accept Miles.

Typically, after finding a facility to accept a patient, Detox arranges and coordinates the

transportation of the patient to the treatment facility.     Detox needs the flexibility to

transport individuals quickly and immediately to these facilities, because it can be difficult

to find bed space. Detox was unable to find a local facility willing or able to accept Miles.

       On June 12, 2009, a Detox staff member called the Spokane DOC field office to

report that they had found a bed for Miles at Thunderbird Treatment Center in Western

Washington. Detox called to make sure that the conditions of Miles's supervision allowed

him to go to treatment out of the county. Burgor-Glass was out of the office so Detox

spoke with Wiggs.

       BeforeWiggs authorized Miles' enrollment at Thunderbird, he looked to see if there

was a "victim wraparound" for Tibbits or any other geographical restrictions placed on

Miles. A "victim wraparound" involves an in-person meeting between the offender's

victim, DOC staff (including the offender's CCO), and other applicable law enforcement

or community resource representatives. The purpose of the meeting is to discuss the

offender's impending release from custody and to develop a safety plan that is intended

to help minimize the risk that the offender will cause future harm to the victim. There was
No. 71147-4-1/4




no record of a victim wraparound for Tibbits. As a result, Wiggs concluded that Tibbits

chose not to participate in the program.

       Wiggs also considered Miles's behavior during his nine month DOC supervision.

Wiggs knew about an NCO and that it was in place to prevent contact with an individual

on the "west side." But, during the nine months, Wiggs did not see anything in Miles' case

indicating that he had intent or desire to contact Tibbits or that he posed a threat to anyone

on the west side of Washington. None of Miles's community custody violations during the

nine month period were related to contact with Tibbits. Wiggs further stated that he

considered that Miles was not constantly supervised in Spokane during the nine month

period and had the means to buy a bus or plane ticket to the west side of the state, but

he did not do so.


       On June 12, 2009 Wiggs verbally authorized Miles's travel out of the county for the

purpose of attending and receiving in-patient treatment at Thunderbird. Wiggs did not

provide Miles with any travel instructions or restrictions. Detox arranged for Miles to take

a bus to Western Washington. The treatment staff from Thunderbird typically meets

patients at the bus station. Wiggs was unsure if that was arranged in this case.

       On June 16, 2009, Detox called and informed the DOC field office that Miles did

not make it to Thunderbird. Burgor-Glass immediately secured a warrant for his arrest.

Miles was arrested on June 20, 2009.

       On June 14, 2012, Tibbits sued the DOC alleging it was grossly negligent in

allowing Miles to travel unaccompanied to King County. The trial court dismissed Tibbits's

suit on summary judgment. The trial court concluded that the DOC's decision to modify

Miles's conditions of community custody to permit out of county travel to an in-patient
No. 71147-4-1/5




treatment facility and Wiggs's choice not to impose restrictions or conditions on the travel

constituted modifying and setting conditions of community custody.          As a result, it

concluded that Wiggs was acting in a quasi-judicial capacity and is protected by judicial

immunity pursuant to RCW 9.94A.704(11). Tibbits appeals.

                                      DISCUSSION


       Judges are immune from civil damages suits for acts performed within their judicial

capacity. Taqqart v. State. 118 Wn.2d 195, 203, 822 P.2d 243 (1992). Judicial immunity

extends to actors of governmental agencies performing quasi-judicial functions. See jd.

at 204. RCW 9.94A.704(11) clearly states that the DOC performs a quasi-judicial function

in "setting, modifying, and enforcing conditions of community custody."

       Statutory interpretation is a question of law that we review de novo. State v. Gray,

174 Wn.2d 920, 926, 280 P.3d 1110 (2012). The court's primary duty is to ascertain and

carry out the legislature's intent. Arborwood Idaho. LLC v. City of Kennewick. 151 Wn.2d

359, 367, 89 P.3d 217 (2004). Statutory interpretation begins with the statute's plain

meaning. Ent v. Wash. State Criminal Justice Training Comm'n. 174 Wn. App. 615, 619,

301 P.3d 468 (2013).

       This court reviews a grant or denial of summary judgment de novo. Washburn v.

City of Federal Way, 169 Wn. App. 588, 609, 283 P.3d 567 (2012), affd, 178 Wn.2d 732,

310 P.3d 1275 (2013). Summary judgment is appropriate where there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter of law.

CR 56(c).    In conducting this inquiry, the court must view all facts and reasonable

inferences in the light most favorable to the nonmoving party.         Hisle v. Todd Pac.

Shipyards Corp.. 151 Wn.2d 853, 860-61, 93. P.3d 108 (2004).
No. 71147-4-1/6




      As a preliminary matter, there is no genuine issue of material fact as to whether

Wiggs set, modified, or enforced the conditions of Miles's community custody. Wiggs

modified Miles's community custody conditions by allowing him to travel out of the county.

The authorization contained      no restriction or additional condition that Miles be

accompanied. Wiggs's decision to allow Miles to enroll at Thunderbird out of county

encompassed the decision to allow Miles to travel unescorted. But, Tibbits argues that

the trial court erred in granting summary judgment, because Wiggs's failure to require

Miles to be accompanied during travel does not constitute a quasi-judicial function under

RCW9.94A.704(11).

       Tibbits separates Wiggs's authorization into two parts: Wiggs's reasoned and

deliberate decision to allow Miles to travel to King County for treatment and Wiggs's failure

to assess the risks and consequences of unescorted and unsupervised travel. In other

words, Tibbits argues that the trial court's characterization of Wiggs's decision not to

impose restrictions or conditions on the travel was inaccurate, because Wiggs never

made a "decision."1 Tibbits concedes that Wiggs was likely acting in a quasi-judicial

capacity when he decided that Miles needed additional treatment and could travel to King
County. But, Tibbits contends that Wiggs's separate failure to consider and specify
conditions of transportation for Miles does not fit into the definition of a quasi-judicial

function. By contrast, the DOC claims thatWiggs made only one decision: allowing Miles

      1The DOC argues that Tibbits cannot makethisargument on appeal, because she
did not previously parse the decision in this way. The DOC contends Tibbits referred to
Wiggs's actions as a unified "decision" in her summary judgment brief before the trial
court. While Tibbits phrased her argument differently below, it was effectively the same
argument she raises on appeal—that the unauthorized travel should be considered
separate and apart from the decision to allow Miles to begin treatment at Thunderbird.
As such, we will address this argument.
No. 71147-4-1/7




to travel to King County for treatment, which encompasses all issues related to that travel

such as restrictions or limitations.   The DOC asserts that this decision constitutes a

modification of Miles' community custody and is protected in its entirety as a quasi-judicial

function.


       Tibbits attempts to separate Wiggs's authorization into two parts: an act and an

omission. She argues the latter is not protected by judicial immunity. Tibbits contends

that Wiggs did not make all of the proper considerations when he allowed Miles to travel

unescorted to Thunderbird. But, by making this argument, she is asserting a defect in

Wiggs's modification decision. That defect was the absence of a requirement of

supervision. If a decision setting, modifying or enforcing the terms of community custody

were subject to challenge on the basis of an arguable omission, no decision would be

entitled to judicial immunity. The plain statutory intent that these decisions be protected

by immunity would be rendered a nullity. Therefore, we must reject Tibbits's argument.

Wiggs's authorization for travel outside Spokane County, with no mention of supervision,

is a single decision to modify the conditions of community custody.

       Tibbits cites several cases defining "quasi-judicial function," which she says are

helpful for her appeal. However, none ofthe cases she cites analyze the statute at issue
here.2 RCW 9.94A.704(11) clearly states that the DOC performs a quasi-judicial function


       2The cases that Tibbits cites discuss the rationale behind deeming a governmental
agency's action a quasi-judicial function protected by judicial immunity. See, e.g.,
Taggart, 118 Wn.2d 195; Lallas v. Skagit County, 167 Wn.2d 861, 864-67, 225 P.3d 910
(2009); Hertoq v. City of Seattle. 138 Wn.2d 265, 288-89, 979 P.2d 400 (199). Tibbits
asserts that these cases show that Wiggs's "failure to consider and specify conditions of
transportation for Kevin Miles" was not a quasi-judicial function, because it was merely
ministerial in nature. But, this misstates the issue. Wiggs made one decision. The
process behind it and the logistics arising after it are encompassed in that one decision.
No. 71147-4-1/8




"in setting, modifying, and enforcing conditions of community custody." The task here is

not to define quasi-judicial function, but rather to determine whether Wiggs's decision

constitutes "setting, modifying, and enforcing" the terms of Miles's community custody.

RCW9.94A.704(11).

      Therefore, we conclude that Wiggs's decision was a protected quasi-judicial

function under RCW 9.94A.704(11) and that the DOC was entitled to judicial immunity.

We hold that the trial court did not err when it granted the DOC's motion for summary

judgment.

      We affirm.




WE CONCUR:




And, there is no need to refer to the case law, because the relevant statute here outlines
what is a protected quasi-judicial function.


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