63 Wn. App. 226, 817 P.2d 425, STATE v. HOLT
Oct. 1991
[Nos. 10723-0-III; 10724-8-III. Division Three. October 15, 1991.]
10725-6-III; 10726-4-III.
STATE v. HOLT
THE STATE OF WASHINGTON, Respondent, v. BOBBY JOE HOLT, Appellant.

[1] Criminal Law – Punishment – Sentence – Outside Standard Range – Review – In General. Under RCW 9.94A.210(4), an appellate court reviews a sentence outside the standard range to determine: (1) under the clearly erroneous standard, are the trial court's reasons supported by the evidence in the record; (2) under the question of law standard, do the reasons justify a departure from the standard range; and (3) under the abuse of discretion standard, is the term imposed clearly excessive or clearly too lenient?

[2] Criminal Law – Punishment – Sentence – Findings of Fact – Failure To Assign Error – Effect. Unchallenged sentencing findings are accepted as verities by an appellate court.

[3] Criminal Law – Punishment – Sentence – Outside Standard Range – Aggravating Circumstances – High Offender Score – Current Offenses. An offender score based on multiple current offenses which substantially exceeds the maximum score under RCW 9.94A.310 can constitute an aggravating circumstance justifying a sentence beyond the standard range when, if such a sentence were not imposed, some of the current offenses would go unpunished.

Superior Court: The Superior Court for Spokane County, Nos. 89-1-01343-7, 89-1-01381-0, 89-1-01469-7, and 89-1-01547-2, Marcus M. Kelly, J., on March 14, 1990, entered judgments and an exceptional sentence upon the defendant's plea of guilty to the charges.

Court of Appeals: Holding that the exceptional sentence was properly imposed, the court affirms the sentence.

Donald C. Brockett, Prosecuting Attorney, and Steven J. Kinn, Deputy, for respondent.

THOMPSON, J. – Bobby Joe Holt pleaded guilty to four counts of second degree burglary. In these consolidated appeals, he seeks reversal of an exceptional sentence above the standard range. We affirm.

The defendant was paroled from the custody of the Department of Corrections on August 17, 1989. On August 29, September 17, September 25, and September 26, 1989, he burglarized four different Spokane residences. At the sentencing hearing, the trial court considered the following: a presentence investigation report; Department of Corrections offender files; testimony of Laurie Staudt, an employee of the Department of Corrections; testimony of one burglary victim; and testimony of the defendant.

The defendant had been convicted of two counts of second degree burglary in 1982 and one count in 1985. In addition, he had been convicted of second degree possession of stolen property in 1984 and possession of a controlled substance in 1989. As a juvenile, the defendant had three criminal adjudications for second degree burglary, one for third degree theft, one for attempted second degree burglary, and one for urinating in public and possession of alcohol. The juvenile criminal adjudications occurred in 1980 and 1981. Without consideration of his juvenile adjudications, the defendant's offender score was 12. The standard sentencing range for the four burglaries, given an offender score of 9 or more, is 43 to 57 months.

Ms. Staudt testified that the defendant had been paroled on three occasions and each parole had been revoked. The most recent parole on August 17, 1989, required him to reside at the Alberta Apartments (Alberta House) in Spokane. Alberta House was described as a drug and alcohol free environment. Its employees assisted clients in finding employment; drug, alcohol and mental health treatment; and financial help. The defendant was instructed to attend a minimum of two Alcoholics or Narcotics Anonymous meetings each week.

The defendant reported to his parole officer on the morning of August 17 and was to return to obtain a travel permit later that day. He did not show up. He reported once to Alberta House, but did not comply with any other conditions of parole.

The Department of Corrections recommended a 90-month sentence for the defendant. The State recommended a 70-month sentence. The trial court imposed an exceptional sentence of 76 months. It found the following aggravating circumstances:

A. Defendant's past failure to comply with the conditions of his parole demonstrates an inability to adjust after his release from custody. Such a failure to adjust to supervision constitutes evidence that the standard range of only fifty-seven (57) months would not adequately protect the public from defendant's criminal activity.

B. At the time of his sentencing, defendant blamed others almost exclusively for his current criminal conduct.

C. Defendant's offender's score of twelve (12) is 33% above the high end of nine (9) for the crime of Second Degree Burglary. The high end standard range of fifty-seven (57) months is clearly [too] lenient to hold defendant accountable for the four (4) Second Degree Burglaries currently before this court.

The defendant contends the record does not support findings 6(A) and (B). He also contends an exceptional sentence cannot be based on an offender score of 12, blaming others for criminal conduct, and multiple victims.

The State contends the record supports the findings and the findings justify the exceptional sentence. The State also contends an offender score of 12, coupled with four current offenses, justifies a departure from the standard range.

Review of an exceptional sentence is governed by RCW 9.94A.210(4). An appellate court is to analyze the appropriateness of an exceptional sentence by answering the following three questions under the indicated standards of review:

1. Are the reasons given supported by evidence in the record? As to this, the standard of review is "clearly erroneous".

2. Do the reasons justify a departure from the standard range? The standard of review on this is as a "matter of law".

«1» In Allert, the question was whether the sentence was too lenient. However, in State v. Pascal, 108 Wn.2d 125, 736 P.2d 1065 (1987), the court formulated the same question and adopted the same standard for sentences alleged to be too lenient as those alleged to be too excessive. See State v. Oxborrow, 106 Wn.2d 525, 723 P.2d 1123 (1986).

[2] The first inquiry is whether the findings are supported by evidence in the record. A trial court's sentencing findings should be upheld unless they are clearly erroneous. State v. Pascal, 108 Wn.2d 125, 135, 736 P.2d 1065 (1987). Sentencing findings not challenged on appeal are verities. Allert, at 168.

In finding 6(A), the court found the defendant exhibited an inability to adjust to supervision and the standard sentence would not protect the public from his criminal activity. In finding 6(B), the court found the defendant blamed others almost exclusively for his current criminal conduct. Both findings are supported by the record. However, although both parties contend "future dangerousness" was the "aggravating circumstance" being addressed by the court in these findings, it is not clear this is in fact so. We need not rely on this issue, however, because the exceptional sentence was justified on other grounds.

The defendant contends the trial court erred as a matter of law in considering his offender score as an aggravating factor. He relies on State v. Pascal, supra, State v. McAlpin, 108 Wn.2d 458, 465, 740 P.2d 824 (1987) and State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986).

[3] Clearly a "high" offender score under the Sentencing Reform Act of 1981 (SRA), standing alone, is insufficient to justify an exceptional sentence. E.g., State v. Pascal, supra; State v. Nordby, supra. However, an exceptional sentence may be justified "when a defendant's multiple current convictions, combined with his high offender score, would otherwise result in there being no additional penalty for some of his crimes." State v. Stephens, 116 Wn.2d 238, 240, 803 P.2d 319 (1991).

the defendant's high offender score is combined with multiple current offenses so that a standard sentence would result in "free" crimes – crimes for which there is no additional penalty. This is the issue raised by the trial court's final finding that imposition of the standard sentence "for these offenses with the crimes for which he is being sentenced is clearly too lenient in light of the purposes set forth in RCW 9.94A.010." This is clearly a reference to RCW 9.94A.390(2)(g), «3»

which states that upward departure from the sentencing guidelines may be justified where "[t]he operation of the multiple offense policy of RCW 9.94A-.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010."

In Stephens, the defendant had an offender score of 19 based, in part, upon eight current offenses before the sentencing court. The exceptional sentence of 96 months imposed by the trial court was upheld.

Any other rule would mean that all additional counts, whether 6 (as in this case) or 60, would be free from additional punishment. Such a rule would be against public policy and inconsistent with the stated purposes of the SRA.

In Stephens and State v. Garnier, 52 Wn. App. 657, 763 P.2d 209 (1988), review denied, 112 Wn.2d 1004 (1989), the defendants had higher offender scores than the defendant here. Additionally, the defendants in both Stephens and Garnier committed more current multiple offenses. Nevertheless, the defendant's offender score here would have been 6 before inclusion of the four current burglaries. If the standard sentencing range were applied, it would result in 1-1/2 "free" burglaries under the Stephens analysis. Stated differently, the defendant would presumptively receive the same sentence for three burglaries as he would for four burglaries. As the State contends, the issue is whether the standard sentence was "clearly too lenient" as the sentencing court determined in finding 6(C).

Stephens addressed the issue of when the "clearly too lenient" factor justifies an exceptional sentence by quoting State v. Fisher, 108 Wn.2d 419, 428, 739 P.2d 683 (1987):

"[I]t is proper to rely on this aggravating factor when there is some extraordinarily serious harm or culpability resulting from multiple offenses which would not otherwise be accounted for in determining the presumptive sentencing range."

Stephens, at 244. We find the test articulated in Fisher and approved in Stephens has been satisfied here. We conclude that the facts in this case justify an exceptional sentence under the very limited "clearly too lenient" criteria found acceptable in Stephens. Since this circumstance alone justifies imposing the exceptional sentence, we need not address the other issues raised by defendant.

All three criteria set forth in Allert for a review of an exceptional sentence have been considered by this court. Evidence in the record supports the finding the standard range is clearly too lenient. Because the sentence is clearly too lenient, a departure from the standard range is justified. The sentence is not clearly too excessive.

[4] Juveniles – Child Abuse – Investigating – Immunity – Qualified Immunity – Caseworkers. Caseworkers have a common law qualified immunity when investigating possible child abuse. The immunity applies if the caseworker (1) acts reasonably (2) in carrying out a statutory duty (3) according to procedures dictated by statute and superiors.

[5] Juveniles – Child Abuse – Reporting – Immunity – Statutory Provisions. The qualified immunity granted by former RCW 26.44.060(1) is limited to the reporting of child abuse; it does not apply to the investigating of reported child abuse.

[6] Juveniles – Child Abuse – Reporting – Immunity – Good Faith – Objective Standard. Under former RCW 26.44.060(1), which grants immunity to any person who in good faith makes a report of child abuse or neglect, "good faith" is determined under a standard of reasonableness in light of all the surrounding circumstances.

[7] Juveniles – Child Abuse – Reporting – Immunity – Good Faith – Burden of Proof. Parties seeking the immunity of former RCW 26.44.060(1) for making a report of child abuse or neglect have the burden of proving that they acted in good faith.

[8] Judgment – Summary Judgment – Review – Interpretation of Facts. When reviewing a summary judgment, a court construes the facts most favorably toward the nonmoving party.

[9] Juveniles – Child Abuse – Reporting – Immunity – State Agencies. Former RCW 26.44.060(1), which grants qualified immunity to a person making a report of child abuse or neglect, does not apply to state agencies.

[10] Juveniles – Child Abuse – Investigating – Immunity – Qualified Immunity – State Agencies. State agencies do not have a common law qualified immunity for the acts of their caseworkers in investigating possible child abuse.

[11] Judgment – Collateral Estoppel – Elements – In General. The doctrine of collateral estoppel applies to prevent an issue from being decided if that issue was previously litigated and determined and the party against whom the doctrine is asserted was a party to the prior action.

[12] Judgment – Collateral Estoppel – Elements – Prior Determination – Consent Judgment. The doctrine of collateral estoppel cannot be based on an issue previously decided by a consent judgment.

[13] Government – Torts – Public Duty Doctrine – Special Relationship – State and Victim. A governmental body's immunity from liability under the public duty doctrine does not apply if the existence of a special relationship between the plaintiff and a public employee gives rise to a duty on the part of the employee to perform a mandated act for the benefit of the particular plaintiff.

[14] Judgment – Summary Judgment – Denial – Right of Appeal. The denial of a motion for a summary judgment is an interlocutory ruling from which the moving party has no right of appeal.

Nature of Action: Three former employees of a group home for emotionally disturbed boys sought damages from social workers and the State. The State had placed the plaintiffs' names on its central registry of reported child abusers.

Superior Court: The Superior Court for Spokane County, No. 87-2-02238-7, Kathleen M. O'Connor, J., on July 24, 1990, granted a summary judgment in favor of the defendants.

Court of Appeals: Holding that there were unresolved issues of material fact regarding the social workers' immunity for investigating and reporting the alleged child abuse, that the State was not entitled to qualified immunity, that the doctrine of collateral estoppel did not bar the plaintiffs' claims, and that the public duty doctrine did not apply, the court reverses the judgment.

Kenneth O. Eikenberry, Attorney General, and Maureen E. McGuire, Assistant, for respondents.

THOMPSON, J. – In this action, Ken Dunning, John Hader, and Richard Becker allege the Department of Social and Health Services (DSHS) and three of its employees, negligently and in violation of their civil rights, caused their names to be placed on the State's "central registry" as reported child abusers. Former RCW 26.44.030, .070. «4»

When any practitioner, professional school personnel, registered or licensed nurse, social worker, psychologist, pharmacist, or employee of the department has reasonable cause to believe that a child or adult dependent person has suffered abuse or neglect, he shall report such incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040. The report shall be made at the first opportunity, but in no case longer than seven days after there is reasonable cause to believe that the child or adult has suffered abuse or neglect.

Laws of 1984, ch. 97, § 3. Under former RCW 26.44.070, DSHS maintained a "central registry" of reported cases of child abuse which was accessible by persons "directly responsible for the care and treatment of children . . . pursuant to chapter 74.15 RCW; . . .". Repealed by Laws of 1987, ch. 486, § 16.

DSHS and the named social workers listed the plaintiffs' names on the registry after concluding the plaintiffs had failed to report child abuse at the J Bar D Boys Ranch, where they were employed. The Superior Court entered summary judgment for the defendants, holding the social workers and DSHS had absolute immunity from liability for this act. We reverse.

On July 19, 1984, DSHS received a complaint from the mother of a boy who resided at the J Bar D Boys Ranch, which is a group home for emotionally disturbed boys near Ione, Washington. She stated that living conditions at the ranch were "filthy" and that her son had told her the older boys were abusing the younger ones. Janice Banning, a Child Protective Services caseworker from the Department's Colville office, was assigned to investigate. She interviewed several of the residents who told her about specific instances of sexual abuse and also stated they had reported at least some of the instances to the staff.

On July 31, 1984, Ms. Banning and Barbara Paccerelli, the children's services supervisor, interviewed the plaintiffs. Ms. Banning attests:

[P]laintiff Becker revealed in his interview that he was aware of a practice at the ranch termed "open season." According to Mr. Becker, "open season" is the singling out of one resident to be physically attacked by all the others. According to information gathered from the residents, "open season" occurred on several occasions, "open season" was usually declared by staff, but may be declared by a child, and was used by staff as a deterrent to children who are inclined to run away from placement.

Plaintiffs told us they received verbal reports from residents of sexual activity between residents and did not believe the reports were true. None of the plaintiffs made a report to CPS or law enforcement as required by RCW 26.44.030. Based on the individual interviews I had with each plaintiff, I concluded that they were aware of incidents of sexual and/or physical abuse among children and failed to report as required by law.

Ms. Banning took handwritten notes of her interviews with the plaintiffs. The three plaintiffs told her that residents had come to them with a report of homosexual activity between two boys. However, the plaintiffs all maintained they had reason to believe the report was untrue. During the interview, Mr. Hader told Ms. Banning that he had written an internal report on the incident, but he did not identify to whom he submitted this report, nor did he produce a copy of the report at that time.

In their affidavits, the three plaintiffs state they investigated the allegation of homosexual activity by questioning the residents who had reported it to them; they determined these residents had not witnessed the activity. They also confronted the alleged participants and concluded the activity probably had not occurred, but was "a fabrication in an attempt by one of the boys to avoid a home leave he was scheduled for soon. [That boy] had tried this sort of thing before to 'get in trouble' so his home leave would be canceled." Attached to these affidavits are copies of reports which the three plaintiffs wrote and filed with the ranch's assistant director the day of the incident. In his affidavit, Mr. Becker also acknowledges he spoke of "open season" in his interview with Ms. Banning, but he specifically denies saying the practice was initiated or condoned by the ranch staff.

DSHS removed several of the residents immediately; the State later revoked the ranch's license as a group care facility. By letters dated August 6, 1984, Ms. Paccerelli notified the plaintiffs the Department had found that they were aware of at least one incident of homosexual activity between residents at the ranch and did not report it as required by former RCW 26.44.030(1). Ms. Paccerelli stated this information would be placed in the Department's central registry in Olympia. She concluded:

You have a right to supply information about your situation and a right to appeal this finding. The enclosed pamphlet will explain how to request a Fair Hearing.

The three plaintiffs' names were mailed to the central registry on August 16, 1984, along with the names of the ranch administrator and the owner.

The plaintiffs each sought administrative review of the decision, but a hearing was never held. On August 16, 1985, plaintiffs Hader's and Becker's administrative appeals were dismissed "with prejudice", pursuant to a stipulated motion and order. According to the stipulations, Mr. Hader and Mr. Becker complied with the spirit of the child abuse reporting requirements when they made an internal report of the incident. DSHS therefore agreed to remove their names from the registry. Mr. Dunning, who was proceeding pro se, appeared at the time scheduled for the hearing and was advised by the hearing examiner that DSHS had also withdrawn his name from the central registry, rendering the matter moot. According to the affidavit of Lawrence D. Briney, the assistant attorney general representing DSHS, the Department entered into the stipulations because it had already settled with the ranch owner and with the administrator, whom the Department regarded as the two main participants.

In July 1987, the plaintiffs filed in superior court the action from which this appeal is taken. They named as defendants DSHS and Ms. Banning, Ms. Paccerelli, and Janet Thomas, who was the Colville Community Services Office Administrator for DSHS in 1984. They alleged the defendants had no "substantial credible evidence" that plaintiffs "neglected or failed to prevent or protect residents from abuse". The plaintiffs further alleged the investigation was unprofessionally done, violated Department guidelines, and DSHS had not adequately supervised the social workers who conducted the investigation.

As causes of action, the plaintiffs asserted the defendants (1) acted negligently; (2) violated the plaintiffs' right to due process and their right to employment under both the federal and state constitutions; (3) denied their rights under 42 U.S.C. § 1983; «5»

«5» This cause of action was limited to the individual defendants. A state is not a "person" under the meaning of 42 U.S.C. § 1983. While a state may waive its sovereign immunity and consent to suit under section 1983 in a state court, our State has not done so. Spurrell v. Bloch, 40 Wn. App. 854, 864, 701 P.2d 529 (citing Edgar v. State, 92 Wn.2d 217, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077 (1980); Rains v. State, 100 Wn.2d 660, 674 P.2d 165 (1983)), review denied, 104 Wn.2d 1014 (1985).

(4) denied their constitutional right to privacy; and (5) committed the following torts: publication of an injurious falsehood, outrage, and wrongful interference with advantageous economic relations. «6»

«6» The plaintiffs also asserted the defendants committed defamation, wrongful use of civil proceedings, abuse of process, fraudulent misrepresentation, misrepresentation incorporated in a document, fraudulent misrepresentation of information required to be filed by statute, negligent misrepresentation, and putting plaintiffs in a false light in the public eye. They abandoned these causes of action during the summary judgment proceedings.

As damages, they averred emotional distress, injury to reputation, and loss of income due to closure of the ranch and their inability to find jobs in their chosen field while their names remained on the registry.

In their answer, the defendants claimed immunity from suit arising out of the conduct of their official duties. They also alleged res judicata as an affirmative defense, citing the earlier dismissals of the administrative appeals. The defendants subsequently moved for summary judgment.

In an oral opinion rendered on July 19, 1990, the Superior Court indicated it would grant the defendants' motion. It held that Mr. Becker and Mr. Hader, who had entered into the stipulated dismissals of their administrative fair hearing, were now barred from litigating the circumstances surrounding the investigation. Because the third plaintiff, Mr. Dunning, had not stipulated to dismissal, the court addressed the defendants' theory that DSHS and the individual defendants were immune from suit. The court considered Babcock v. State, 112 Wn.2d 83, 768 P.2d 481 (1989) (Babcock I), which held that DSHS and its caseworkers have absolute immunity from liability for negligent foster care investigation and placement. The court held that Babcock also applied to the facts presented by the plaintiffs. On July 24, 1990, the court entered an order granting DSHS's motion for summary judgment.

First, did the court err when it held the caseworkers and DSHS had absolute immunity from liability arising from their actions leading up to and including the placing of the plaintiffs' names on the central registry?

[1] The trial court's holding was based upon Babcock I, which was reversed upon reconsideration. Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991) (Babcock II). The trial court did not have the benefit of Babcock II, which held that the caseworkers' actions in investigating and making foster care placements were neither quasi judicial nor quasi prosecutorial in character; thus, no absolute immunity attached. Babcock II, at 609, 610. Instead, the caseworkers were entitled only to a common law qualified immunity for foster care placement decisions. Babcock II, at 618. The court held that the caseworkers, in order to qualify for the immunity, had to "(1) carry out a statutory duty, (2) according to procedures dictated by statute and superiors, and (3) act reasonably". Babcock II, at 618 (citing Guffey v. State, 103 Wn.2d 144, 152, 690 P.2d 1163 (1984)).

The defendants attempt to distinguish Babcock II on its facts. They contend the reporting and investigating of possible child abuse, in contrast to foster care placement decisions, is quasi prosecutorial in nature. However, the federal courts have specifically declined to extend absolute immunity to caseworkers' investigations of child abuse. See Babcock II, at 612 (citing Hodorowski v. Ray, 844 F.2d 1210, 1212-16 (5th Cir. 1988); Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989); Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989)). The cases relied upon by the defendants are not on point. For example, in Coverdell v. Department of Social & Health Servs., 834 F.2d 758 (9th Cir. 1987), the court held only that caseworkers have absolute immunity in connection with seeking and executing court orders. As in Babcock II, the gravamen of the plaintiffs' complaint here is negligent investigation.

The defendants next assert they are immune from liability pursuant to former RCW 26.44.060. The Legislature specifically provided:

(1) Any person participating in good faith in the making of a report pursuant to this chapter . . . shall in so doing be immune from any liability arising out of such reporting . . . under any law of this state or its political subdivisions.

(Italics ours.) Laws of 1982, ch. 129, § 9. See Spurrell v. Bloch, 40 Wn. App. 854, 865-66, 701 P.2d 529, review denied, 104 Wn.2d 1014 (1985). Social workers and DSHS employees are among those persons listed in former RCW 26.44.030(1) as having a duty to report suspected child abuse.

[2] Here, defendant Janice Banning's suspicions that plaintiffs were child abusers arose during the course of investigating a separate report made by the mother of a boy living at the ranch. Because Ms. Banning, with Ms. Paccerelli and Ms. Thomas, was also responsible for investigating the suspected abuse by the plaintiffs, the functions of reporting and investigating do not divide along an obvious line. To the extent the conduct of defendant caseworkers consisted of reporting child abuse, they may seek to claim the statutory qualified immunity provided in RCW 26.44.060. To the extent their conduct consisted of investigating reported child abuse, they may seek the protection of the common law qualified immunity recognized in Babcock II. Questions of material fact exist in either situation.

[3, 4] The determination of good faith under RCW 26.44.060 necessarily presents issues of fact. "Good faith" is not defined in RCW 26.44.060. However, the reporting statute is framed in terms of reasonableness. The duty to report arises when there is "reasonable cause to believe" that abuse has occurred. RCW 26.44.030(1). In actions brought under 42 U.S.C. § 1983, which also measures official conduct by a standard of reasonableness, the courts have refused to employ a totally subjective standard when applying the good faith test for immunity. Hocker v. Woody, 95 Wn.2d 822, 825, 631 P.2d 372 (1981). Likewise, RCW 26.44.060(1) contemplates the caseworker must act with a reasonable good faith intent, judged in light of all the circumstances then present, before immunity will attach. The burden is on the caseworkers to prove they acted in good faith and thus are entitled to the statutory immunity afforded them in RCW 26.44.060(1).

The caseworkers attest they believed plaintiffs were aware of incidents of sexual abuse between children at the ranch. They formed this belief after talking with ranch residents and after interviewing the plaintiffs in the presence of an attorney. The caseworkers further assert their investigation followed all applicable regulations for investigating reports of child abuse. Former WAC 388-15-134 reads:

(1) The department shall notify the . . . person alleged to be the abuser that the department has received a report alleging condition(s) specified in WAC 388-15-132 [child abuse or neglect] . . .

(2) . . . the . . . alleged abuser . . . shall be provided the opportunity to supply information about the allegation and his situation. This person's response about the allegation and his situation including a written statement, if any, shall be a part of the department's case record.

(3) The person . . . shall be notified that the information will be on file in the CSO.

(4) The person . . . shall be informed of the placement of his name as an abuser in the central registry.

(5) The person . . . shall be advised of his right to a fair hearing in accordance with chapter 388-08 WAC.

On the other hand, the plaintiffs state they told the caseworkers that the children who reported the sexual abuse had not witnessed it, and the alleged participants denied it. The plaintiffs also contend the caseworkers' investigation was cursory. They did not interview the physician who provided the residents with medical care; the nurse who inspected the ranch facilities for DSHS; nor the counselor at the high school the residents attended; all of whom, by affidavit, indicate they were not aware of any abuse or neglect of the residents. Finally, the plaintiffs attest that at the time of the interview they did not know they were the subjects of the investigation. They assert the attorney who was present during the interviews was the attorney for the owner of the ranch and did not represent them.

[5] In reviewing a motion for summary judgment, the court construes facts in the light most favorable to the nonmoving party. Wendle v. Farrow, 102 Wn.2d 380, 383, 686 P.2d 480 (1984). The foregoing affidavits raise issues concerning Ms. Banning's good faith and whether the caseworkers (1) conducted an adequate investigation before they reached their conclusion that plaintiffs were aware of incidents of sexual abuse, and (2) followed the procedures outlined in former WAC 388-15-134. In this latter regard, a question exists whether the caseworkers' interviews of the plaintiffs satisfied the requirement of the WAC that the Department notify the alleged abuser of the report of abuse and provide him or her with the opportunity to supply information about the allegation.

Accordingly, we reverse the order of summary judgment which was entered in favor of the caseworkers and remand for trial.

[6, 7] We also reverse the summary judgment in favor of DSHS. In Babcock II, the court cited RCW 26.44.060(3) as authority for its holding that DSHS could not claim the common law qualified immunity of its caseworkers for negligent foster care placement. Babcock II, at 619. That subsection provides: "Nothing in this chapter shall be construed as to supersede or abridge remedies provided in chapter 4.92 RCW [which abolished sovereign immunity]". (Italics ours.) Thus, the court concluded it could not deprive those wronged by DSHS's actions of a remedy which the Legislature contemplated they would have when it enacted RCW 4.92. For the same reason, DSHS is not entitled to either the statutory qualified immunity provided for in RCW 26.44.060(1), or the common law qualified immunity for liability for its caseworkers' reporting and investigating child abuse.

[8] Second, did the court err when it held Mr. Becker's and Mr. Hader's actions were barred by the earlier dismissal, with prejudice, of their administrative claims?

Collateral estoppel (issue preclusion) precludes relitigation of issues once litigated and determined, even though the cause of action in the subsequent suit is a different one, if the preclusion operates against a person who was a party to the first action.

(Footnotes omitted. Italics ours.) 15 L. Orland & K. Tegland, Wash. Prac., Trial Practice – Civil § 368, at 32-33 (4th ed. 1986).

[9] The administrative hearing process never determined the propriety of placing the plaintiffs' names on the central registry. The issue was not litigated because DSHS removed Mr. Becker's and Mr. Hader's names from the registry and the parties stipulated to dismissal of the hearing procedure. Consent judgments "are not . . . ordinarily given issue preclusion effect." 15 L. Orland & K. Tegland § 367, at 30. The reason is that "the parties could settle for myriad reasons not related to the resolution of the issues they are litigating." Marquardt v. Federal Old Line Ins. Co., 33 Wn. App. 685, 689, 658 P.2d 20 (1983) (citing Annot., Modern Views of State Courts as to Whether Consent Judgment Is Entitled to Res Judicata or Collateral Estoppel Effect, 91 A.L.R.3d 1170, § 6(a), at 1183 (1979)). See also Krikava v. Webber, 43 Wn. App. 217, 222, 716 P.2d 916, review denied, 106 Wn.2d 1010 (1986). Thus, collateral estoppel does not operate to bar litigation of the issue central to Mr. Becker's and Mr. Hader's action. «7»

«7» Res judicata does not apply because there is no identity of causes of action in the fair hearing and the instant proceeding. See Schoeman v. New York Life Ins. Co., 106 Wn.2d 855, 858, 726 P.2d 1 (1986).

The cases the defendants rely upon are distinguishable. In Rasmussen v. Allstate Ins. Co., 45 Wn. App. 635, 637, 726 P.2d 1251 (1986), review denied, 107 Wn.2d 1031 (1987), the court held that a written release discharging the defendant from all claims resulting from an automobile accident constituted a merger and bar of all existing claims. In contrast, the stipulated dismissals do not state Mr. Hader and Mr. Becker have released the defendants of all claims, including the tort and U.S.C. § 1983 actions which the administrative process had no authority to resolve. State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d 961 (1980) notes only that decisions of administrative agencies may be accorded preclusive effect in subsequent litigation if the requirements of collateral estoppel or res judicata are met. We have held they were not met in this case.

[10] Alternatively, defendants contend this court should affirm the summary dismissal on the ground that plaintiffs' causes of action for negligence, violation of 42 U.S.C. § 1983, and various torts fail as a matter of law. We have reviewed the defendants' arguments and find them to be either without merit or based upon a view of the facts which the plaintiffs dispute. Specifically, we hold the public duty doctrine does not shield the defendants from liability for negligence in the circumstances present here. A special relationship existed between the social workers and the plaintiffs which "creat[ed] a duty to perform a mandated act for the benefit of particular persons . . .". Chambers-Castanes v. King Cy., 100 Wn.2d 275, 285, 669 P.2d 451, 39 A.L.R.4th 671 (1983) (quoting Campbell v. Bellevue, 85 Wn.2d 1, 10, 530 P.2d 234 (1975)). Under former WAC 388-15-134, plaintiffs were entitled to certain procedural protections. Their action alleges the defendants violated the WAC and thereby denied them those protections. The same allegation supports the plaintiffs' action for violation of their civil rights under 42 U.S.C. § 1983, «8»

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, . . .".

[11] Finally, the plaintiffs argue the trial court should have granted their motion for partial summary judgment. However, the denial of a motion for summary judgment is interlocutory and not an appealable ruling. Herrmann v. Cissna, 82 Wn.2d 1, 3, 507 P.2d 144 (1973); Huston v. First Church of God, 46 Wn. App. 740, 745, 732 P.2d 173, review denied, 108 Wn.2d 1018 (1987); Rodin v. O'Beirn, 3 Wn. App. 327, 332, 474 P.2d 903, review denied, 78 Wn.2d 996 (1970); RAP 2.2(a)(1). We therefore decline to address plaintiffs' motion in this appeal.

63 Wn. App. 226, 817 P.2d 425, STATE v. HOLTOct. 1991[Nos. 10723-0-III; 10724-8-III. Division Three. October 15, 1991.]10725-6-III; 10726-4-III.STATE v. HOLTTHE STATE OF WASHINGTON, Respondent, v. BOBBY JOE HOLT, Appellant.

63 Wn. App. 226, 817 P.2d 425, STATE v. HOLT
Oct. 1991
[Nos. 10723-0-III; 10724-8-III. Division Three. October 15, 1991.]
10725-6-III; 10726-4-III.
STATE v. HOLT
THE STATE OF WASHINGTON, Respondent, v. BOBBY JOE HOLT, Appellant.