Case 1:14-cv-00369-EJL Document 40 Filed 07/20/15 Page 1 of 23
CYNTHIA COE, D.C. BAR NO. 438792 Trial Attorney U.S. Department of Justice 950 Pennsylvania Ave. NW, PHB Washington, DC 20530 Telephone: (202) 353-1121 Facsimile: (202) 514-6903 Email: Cynthia.Coe@usdoj.gov
WENDY J. OLSON, IDAHO STATE BAR NO. 7634 United States Attorney CHRISTINE G. ENGLAND, CALIFORNIA STATE BAR NO. 261501 Assistant United States Attorney District of Idaho Washington Group Plaza IV 800 East Park Boulevard, Suite 600 Boise, ID 83712-7788 Telephone: (208) 334-1211 Facsimile: (208) 334-1414 Email: Christine.England@usdoj.gov
For the United States of America
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

IN THE MATTER OF DISABILITY

:

RIGHTS IDAHO, INC.’S REQUEST FOR :

ADA COUNTY CORONER RECORDS :

RELATED TO THE DEATH OF D.T.

:

____________________________________ :

ERWIN SONNENBERG, in his official

:

capacity as ADA COUNTY CORONER, :

and ADA COUNTY,

:

:

Plaintiffs,

: CASE NO. 1:14-CV-369-CWD

:

vs.

:

: DEPARTMENT OF JUSTICE

DISABILITY RIGHTS IDAHO, INC., an : STATEMENT OF INTEREST

Idaho nonprofit corporation,

:

:

Defendant.

:

____________________________________ :

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DISABILITY RIGHTS IDAHO, INC., an :


Idaho nonprofit corporation,

:


:


Counter-Claimant,

:


:


vs.

:


:


ERWIN SONNENBERG, in his official

:


capacity as ADA COUNTY CORONER, :


:


Counter-Defendant.

:


____________________________________ :


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INTRODUCTION Federal law is clear that protection and advocacy organizations (“P&As”) such as counterclaimant Disability Rights Idaho, Inc. (“Disability Rights”) have broad access to records to investigate suspected abuse or neglect occurring at mental health treatment facilities. See Protection and Advocacy for Individuals with Mental Illness (“PAIMI”), 42 U.S.C. §§ 10801­ 10851 (1991). Congress granted those expansive investigatory powers to P&As because people with mental illness are “vulnerable to abuse and serious injury” and are “subject to neglect.” 42 U.S.C. § 10801(a) (1)-(3). In fulfillment of this important mission, PAIMI grants to P&As access to “records,” which includes “reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such [a] facility [rendering care and treatment].” 42 U.S.C. § 10806 (b)(3)(A). In March 2014, D.T. died at an inpatient psychiatric hospital in Boise. In the performance of its statutory duties under Idaho law, counterdefendant Ada County Coroner (“Coroner”) investigated the death, conducted an autopsy, ruled D.T.’s death a suicide, and prepared reports. When Disability Rights requested the Coroner’s records to investigate the death pursuant to PAIMI, however, the Coroner refused. The Coroner does not dispute that it is “charged with investigating,” but argues that its investigation of the suicide did not fall within PAIMI’s definition of “records” because the Coroner is not an “agency.” The plain meaning of the word “agency” includes governmental agencies and Congress clearly intended that P&As have access to records of governmental entities such as coroners. The Coroner incorrectly argues that because the Coroner herself is elected, the Coroner’s office is not an agency. There is no logic to support why Congress would exempt offices headed by elected officials from within the purview of PAIMI. To the contrary, coroners’ investigations may include direct evidence such as autopsy results that may be otherwise unavailable to a P&A.
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Denying a P&A access to coroners’ records would undermine the P&A’s ability to conduct complete and accurate investigations pursuant to PAIMI. It would also lead to the absurd result that entities such as police, hospitals, mental health facilities, and medical review boards are compelled to comply with PAIMI while the government entity that gathers some of the most crucial information – a coroner’s office – could shield its investigatory records from the P&A solely because the leader of the office once appeared on a ballet. PAIMI should not be interpreted in a manner to undermine Congressional intent, and the Court should rule instead that entities that conduct investigations under authority of state law must comply with PAIMI.
The Coroner’s remaining arguments to avoid PAIMI compliance also lack merit. The Coroner cannot resist access to its records based on Idaho privacy laws because PAIMI expressly preempts conflicting state law. Nor can the Coroner second-guess the P&A’s determination that there is probable cause to investigate – federal law reserves that determination to the P&A. P&As have a crucial role in investigating neglect and abuse in mental health facilities, and coroners charged with investigating such tragic incidents cannot block P&A access to investigatory records.
INTEREST OF THE UNITED STATES The United States submits this Statement of Interest pursuant to 28 U.S.C. § 517 (1966),1 because this litigation involves the proper interpretation and application of federal law. As the
1 Section 517 provides that the “Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517. A submission by the United States pursuant to this provision does not constitute intervention under Rule 24 of the Federal Rules of Civil Procedure.
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United States has made clear in litigation across the country,2 it has a strong interest in the interpretation of the PAIMI Act, 42 U.S.C. §§ 10801–10851. The Department of Justice has authority to enforce Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12133, 12134 (1990), and enforces federal law and the Constitution as it applies to institutional and community settings. See, e.g., 42 U.S.C. §1997a (1996). The national network of P&As plays a significant role in ensuring compliance with these laws. See U.S. Dep’t of Justice, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., ADA.gov (June 22, 2011), http://www.ada.gov/olmstead/q&a_olmstead.htm (last visited July 10, 2015) (providing guidance for ADA and Olmstead enforcement).
The Congressional authority afforded to P&As is imperative for the monitoring and investigation of abuse and neglect of individuals with mental illnesses within these settings. For nearly three decades, federal law has made clear that with the appropriation of federal funds to P&As, they shall have reasonable unaccompanied access to facilities that provide care and treatment to individuals with mental illness. 42 U.S.C. §§ 10801–10851; 42 C.F.R. § 51.42 (1997). Supplementing the authority to access facilities is the right of P&As to access records of an individual with mental illness from either the facility itself or an “agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such [a] facility.” 42 U.S.C. § 10806 (b)(3)(A); 42 C.F.R. §51.41 (1997).
2 See, e.g., Statement of Interest of the United States, Ala. Disabilities Advocacy Program v. SafetyNet Youthcare, 13-0519-CG-B, (S.D. Ala. Oct. 14, 2014); Statement of Interest of the United States, Disability Rights Miss. v. Miss. Children’s Home Servs., 3:13-CV-547-HTW-LRA, (S.D. Miss. Feb. 5, 2014); Statement of Interest of the United States, Ga. Advocacy Office, Inc., v. Shelp, 1:09-CV-2880-CAP (N.D. Ga. June 10, 2010); Statement of Interest of the United States, Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., No. 1:06-cv-1816 (S.D. Ind. June 16, 2008); Brief for Intervenor United States, Iowa Prot. & Advocacy Servs., Inc. v. Tanager, Inc., 427 F.3d 541 (2005), No. 04-4074 (8th Cir. May 11, 2005).
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FACTS For purposes of this Statement of Interest, the United States will summarize the facts based on the allegations of the parties in their pleadings, statements of material facts, and summary judgment briefs. Aside from the legal issues raised in this Statement of Interest, the United States does not take a position on the relative merits of the parties’ claims.
I. DISABILITY RIGHTS’ PAIMI INVESTIGATION OF D.T.’S DEATH. On or about March 2014, Disability Rights received a report that an individual with
mental illness had died at a psychiatric hospital. Disability Rights’ Answer and Counterclaim (“Counterclaim”) ¶¶ 32, 34 (Dkt. # 5). Disability Rights contacted the hospital, which provided to Disability Rights the confidential patient records related to D.T.’s psychiatric care and treatment and the circumstances of D.T.’s death. Id. ¶ 35. Disability Rights alleges that it determined there was probable cause to believe that D.T.’s death may have resulted from abuse or neglect, and it commenced a PAIMI investigation. Id. ¶ 36.
As part of its investigation, Disability Rights sought investigatory records from several sources. Disability Rights requested records and information from the Boise Police Department, which complied with the request. Id. ¶ 45. Disability Rights also sought records and information from the hospital, which complied with the request. Id. ¶¶ 35, 45.
When Disability Rights requested investigatory records from the Ada County Coroner, however, the Coroner refused. On May 29, 2014, Disability Rights sent a letter to the Coroner requesting copies of any “autopsy reports, coroners’ reports, inquest transcripts, investigative reports, medical and toxicology reports, and other records or documents that were reviewed or relied upon in reaching the conclusions and findings concerning [D.T’s] death.” Disability Rights Statement of Undisputed Material Facts (“Disability Rights’ Statement”), ¶ 15 (Dkt. # 31­
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2). On July 21, 2014, the Coroner sent to Disability Rights a copy of the Coroner’s Public Information Report but refused to provide its investigatory records. Id. ¶¶ 18, 20, 21. The Coroner made three arguments: (1) The Coroner’s investigatory records were not subject to disclosure under PAIMI, (2) disclosing the records would violate privacy concerns of D.T., D.T.’s family, and individuals who interacted with D.T., and (3) disclosure would require a court order or permission from persons whose privacy rights are at risk. Disability Rights’ Statement ¶ 23.
II. THE OPERATION AND RESPONSIBILITIES OF THE ADA COUNTY CORONER’S OFFICE. Idaho coroners are charged by statute with “investigat[ing] . . . death [that] occurred as a
result of violence, whether by homicide, suicide, or by accident;” Idaho Code Ann. §19-4301 (1) (a) (2005); Coroner’s Statement of Material Facts (“Coroner’s Statement”) at 2 (Dkt. # 32-2).
The Ada County Coroner is elected to that office (Coroner’s Statement at 2) and runs the Coroner’s office. To perform the work of the Coroner’s office, the Coroner “has appointed deputies and oversees those deputies.” Answer to Counterclaim of Disability Rights Idaho, Inc. Against Erwin Sonnenberg (“Coroner’s Answer”) at 3 (Dkt. # 8); see Idaho Code Ann. § 31­ 2809 (1970) (“A coroner may appoint a deputy or deputies as he deems necessary”). In addition, the Coroner employs a pathologist who performs autopsies. Coroner’s Answer at 3. The Coroner’s 18-person staff includes forensic technicians, an anthropologist, medicolegal investigators, administrators and consultants. Ada County, Idaho, website, https://adacounty.id.gov/coroner (last visited July 13, 2015).
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The Coroner’s office is a part of the Ada County government. The Coroner’s budget ($1,634,454 in 2013) is paid from Ada County’s general fund.3 Deputy coroners are “paid at a rate fixed by the county commissioners.” Idaho Code Ann. § 31-2809. Under some circumstances, the Ada County commissioners have the power to remove the Coroner or confirm a coroner appointed by the executive. Idaho Code Ann. § 31-5213 (coroner may be “appointed by the executive with the advice and consent of the board of county commissioners,” or the commissioners may eliminate the coroner’s office in favor of an elected or appointed replacement). The 2013 Ada County budget lists the Coroner as a “department” under the category “Governmental,” and the Coroner has a webpage on the County’s website.4 And as the pleadings in this case demonstrate, both Ada County and the Coroner filed this declaratory relief action and are represented by the Ada County prosecuting attorney, even though Disability Rights directed its records access request to the Coroner. Disability Rights Statement ¶ 15; Coroner’s Statement at 2-3.
ARGUMENT Congress created a system of independent protection and advocacy organizations in response to a history of widespread abuse and neglect of individuals with disabilities by the facilities charged with their care. Following the creation of the nationwide P&A system through passage of the Developmentally Disabled Assistance and Bill of Rights Act in 1975, Pub. L. No. 94-103, 89 Stat. 486 (1975) (originally codified at 42 U.S.C. §§ 6041-6043 and currently at 42
3 See Ada County State of Idaho, 2014-2015 Ada County Final Budget, (“Ada County Budget”), https://adacounty.id.gov/Portals/0/CAR/Financial/Ada%20County%20FY15%20Adopted%20Budget.pdf (last visited July 13, 2015). This Court may take judicial notice of the Ada County budget under Fed. R. Evid. 201. See Coleman v. Schwarzenegger, No. C01-1351 TEH, 2009 WL 2407404, at *2 (E.D. Cal. Aug. 4, 2009) (taking judicial notice of California state budget). 4 See Ada County Budget at ii, 10; About the Coroner, Ada County Idaho, https://adacounty.id.gov/coroner (last visited July 13, 2015).
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U.S.C. §§ 15041-15045), Congress has continued to expand the authority of P&As to protect individuals with disabilities. The PAIMI Act, 42 U.S.C. §§ 10801-10851, extended the P&As’ role to include protection of persons with mental illness. Amendments to the PAIMI Act in 2000 further ensured that P&As protect individuals with mental illness who reside in the community, including their own homes. Children’s Health Act of 2000, Pub. L. No. 106-310, Div. B, Title XXXII, § 3206(b)(1)(B), 114 Stat. 1101, 1194 (codified at 42 U.S.C. § 10802(4)(B)(ii)). Thus, the P&A system was designed to ensure that individuals with disabilities, who are some of the most vulnerable members of society, have access to independent advocates and are protected from abuse and neglect wherever they receive care or treatment.
To ensure that P&As can carry out their federal mandate to protect and advocate for individuals with disabilities, the PAIMI Act and implementing regulations define certain key aspects of the P&As’ authority. P&As have the right to access facilities, records, and individuals to investigate possible abuse and neglect, to conduct monitoring activities, and to educate individuals about their rights. 42 U.S.C. §§ 10801(b)(2), 10805; 42 C.F.R §51.42. Central to the P&As’ ability to fulfill their function, the PAIMI statute authorizes P&As to exercise their authority independently. 42 U.S.C. § 10805(a)(2). Congress also vested P&As with comprehensive authority to investigate abuse and neglect whenever the P&A receives a complaint or determines probable cause. 42 U.S.C. § 10801(b)(2)(B). To ensure a swift and adequate investigation, P&As have the sole discretion to determine probable cause. 42 C.F.R. § 51.41(b)(2)-(3).
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I.

THE CORONER’S OFFICE IS AN “AGENCY CHARGED WITH

INVESTIGATING” UNDER PAIMI AND MUST PRODUCE ITS RECORDS.

The PAIMI Act and implementing regulations allow P&As to access “records” in

conducting their investigations. 42 U.S.C.A. § 10806 (b)(3)(A). The term “records” is defined

as including:

[R]eports . . . prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.

42 U.S.C. § 10806 (b)(3)(A) (emphasis added). See also 42 C.F.R. § 51.41 (c)(2)(defining

“[i]nformation and individual records” as including “[r]eports prepared by an agency charged

with investigating abuse, neglect, or injury occurring at a facility rendering care or treatment”).

Neither the PAIMI Act nor the implementing regulations further define the phrase “agency

charged with investigating.”

The starting point for interpreting statutory language is the language itself. Satterfield v.

Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (in construing a statute, the court “first

looks[s] to the language of the statute to determine whether it has a plain meaning”). If the

statutory text is ambiguous, courts may “look to other interpretive tools” to determine the

statute’s best meaning. In re HP Inkjet Printer Litig., 716 F.3d 1173, 1181 (9th Cir. 2013)

(although a statute was “poorly drafted,” its meaning was clear when “interpreted collectively

and in context, and read together with the statute's purpose and legislative history”). See also

United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (when “the literal application

of a statute will produce a result demonstrably at odds with the intentions of its drafters . . . the

intention of the drafters, rather than the strict language, controls.”); Jonah R. v. Carmona, 446

F.3d 1000, 1005 (9th Cir. 2006) (courts may use “canons of construction” to discern

Congressional intent). 9 


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A. The Phrase “Agency Charged with Investigating” Includes the Coroner’s Office Because It Is a Division of Government.
The Coroner’s office is an “agency charged with investigating” because it is a division of the Ada County government that is responsible for investigating deaths. As the Coroner cites, the Merriam Webster dictionary defines “agency” as “an administrative division (as of a government).” Coroner’s Memorandum in Support of Motion for Summary Judgment (“Coroner’s Mem.”) at 9. Even though the plain meaning of the word “agency” includes a governmental entity, the Coroner denies that it is an agency because the Coroner “is an independent, elected office pursuant to the laws and constitution of the state of Idaho, and determines the cause and manner of death.” Coroner’s Mem. at 9.5 The Coroner’s office is an “agency” within the meaning of PAIMI because it is a governmental entity. That the Corner is elected and the office performs its work independently is irrelevant.
There can be no question that the Ada County Coroner’s office is part of the County and functions as an administrative division of government. The Ada County government decides the pay of the Coroner’s office deputies and pathologist and pays them from county funds. The Ada County commissioners have the power to remove the Coroner or confirm a coroner appointed by the executive. The Ada County prosecutor is representing the Coroner presumably at Ada County taxpayer expense in this litigation – a representation that is improper if the Coroner is not an arm of county government.6 The Coroner’s office cannot remove itself from County government solely for the purposes of litigation.
5 Instead of explaining why it believes it is not an administrative division of government, the Coroner lists its many official duties pursuant to the Idaho constitution and statutes. See Coroner’s Mem. at 9-11. That the Coroner acts under authority of state law further supports the interpretation that the Coroner is an administrative division of government. 6 See Idaho Code Ann. § 31-2604 (“It is the duty of the prosecuting attorney. . . [t]o prosecute or defend all actions, applications or motions, civil or criminal, in the district court of his county in which the people, or the state, or the county, are interested, or are a party”).
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That the Coroner is elected rather than appointed or hired is not dispositive. See
Coroner’s Mem. at 9. Whether an entity is a division of government does not turn on whether
the head of the office was elected. What matters is the role the entity fulfills – in this case, an official role to administer certain business of the county.7 The Coroner’s argument would lead to
the illogical result that PAIMI compliance could turn on whether an agency head was elected – a
result Congress never intended. The Coroner’s office is properly viewed under PAIMI as an
“agency charged with investigating” because that is what it exists to do -- regardless of how the
Coroner acquired the position.
One federal court has confirmed that a coroner’s office should be viewed as an “agency
charged with investigating” under PAIMI. In Wisconsin Coal. For Advocacy, Inc. v. Busby,
Case No. 02-C-871 *12 (E.D. Wis. September 24, 2003), the Winnebago County coroner refused
for three months to comply with the P&A’s request for records, claiming the documents were not
“records” under PAIMI. Id. The district court disagreed, holding that “A coroner’s office is an
agency charged with investigating deaths (certainly a form of injury), . . . .” so its investigatory records “fall within the P&A system access authority.” Id. at 12-13.8
The Seventh Circuit Court of Appeals rejected an agency’s similar attempt to split hairs
with the meaning of “agency charged with investigating” in order to avoid producing records
7 The Coroner’s office performs numerous governmental tasks as parens patriae where no one steps forward to take charge of the decedent. The Coroner buries or cremates unclaimed bodies, disposes of property found on a corpse, and issues statements to the county commissioners regarding the property of a deceased in the Coroner’s possession. Coroner’s Mem. at 9. 8 An Idaho Supreme Court decision also supports a finding that the Ada County Coroner is an administrative division of government. Dep’t. of Emp’t v. Ada County Fair Bd., 96 Idaho 591, 593-95 (1974), turned on the issue of whether the Ada County Fair Board was an “administrative division of county government.” Id. The Fair Board was statutorily authorized, it was funded in Ada County’s budget, the county commissioners had the power to select the Fair Board’s members, and the Fair Board’s funds ultimately belonged to the general fund of Ada County. The Idaho Supreme Court noted that Ada County held ultimate control over the Fair Board’s existence and thus, the Fair Board was an administrative division of Ada County and “services performed by the Fair Board ipso facto are performed by the county’s employ.” Id. at 594.
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under PAIMI. Disability Rights Wisconsin, Inc. v. Wisconsin, 463 F.3d 719, 726-27 (7th Cir. 2006). In Disability Rights Wisconsin, the court found that it was “beside the point” that the agency at issue was not “charged” with investigating reports of abuse or neglect because the agency “did in fact investigate complaints of potential abuse or neglect.” Id. The court found that preventing the P&A from obtaining information it needed to investigate “on the basis that DPI did something it was not required to do” would frustrate the goals of the P&A system. Id.
B. Congress Intended that the PAIMI Act Apply to Administrative Divisions of Government Such as the Coroner.
Congress clearly intended that PAIMI apply to state and local governmental entities. The PAIMI legislative history indicates that the term “agency” refers to “any State, county, or municipal agency charged with the responsibility of investigating incidents of abuse and neglect in public residential facilities for the treatment of mentally ill individuals.” S. 2393, 100th Cong., 134 Cong. Rec. S14450-03, 1988 WL 180662; S.2393, 100th Cong., 134 Cong. Rec. H9648-01 (1988), 1988 WL 177000 (emphasis added). Moreover, the P&A system was designed to ensure that individuals with disabilities have access to independent advocates and are protected from abuse and neglect wherever they receive care or treatment. See S. Rep. No. 99-109, at 10 (1985), reprinted in 1986 U.S.C.C.A.N. 1361, 1370 (“The Committee recognizes the need for full access to facilities and clients and to their records in order to ensure the protection of mentally ill persons. It is the intent of the Committee that the [P&A system] have the fullest possible access to client records . . . .”).
Interpreting “agency charged with investigating” to include a coroner’s office is consistent with the purpose of PAIMI. One tool at the P&A’s disposal is the ability to obtain records to aid in its investigation. Coroner’s offices are in a unique position to provide indispensible evidence in an investigation and may be the only entities that perform a detailed
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examination of the decedent’s body. If coroners can withhold their records, an important investigatory tool will be lost to P&As, and their ability to investigate will be compromised. That is not what Congress intended.
Indeed, including coroners within “agency charged with investigating” is a sensible interpretation that gives meaning to every word. The inclusion of the word “agency” can distinguish official state actors like coroners from those who might conduct an investigation for other reasons. For instance, a journalist might be said to “investigate” a death, but the journalist is not performing governmental duties and so is not an “agency charged with investigating.” That understanding of “agency” makes sense in the PAIMI regulatory scheme, and a state, county or municipality’s legally authorized investigators such as coroners fall within it.9
II. THE CORONER’S CONFIDENTIALITY ARGUMENT DOES NOT JUSTIFY DENIAL OF ACCESS TO ITS INVESTIGATORY RECORDS UNDER PAIMI. The Coroner argues that allowing Disability Rights to access its investigatory records
under PAIMI “would be an unwarranted invasion of personal privacy for D.T. and D.T.’s family members, as well as an invasion of the personal privacy rights of hospital employees and family members mentioned in those records” Coroner’s Mem. at 14. The Coroner also raises the possibility of facing a lawsuit under state or federal law for breach of privacy if it were to allow Disability Rights to access the records. Id. at 14.
PAIMI expressly preempts conflicting state laws. PAIMI’s “statutory language provides that state laws that prohibit access to records otherwise allowed under the PAIMI Act ‘shall not apply’. . . . ” See Disability Rights North Carolina v. Frye Regional Medical Center, Inc., No.
9 Construing “agency” to mean an “administrative division of government” in this case does not preclude other interpretations in different circumstances. For instance, a county might contract privately for the services of a coroner. In that case, the private coroner may not be an “administrative division of government” but may instead have an “agency” relationship with its principal, the county. This Court need not address the question of alternative definitions for purposes of this case, however.
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5:13-CV-102, 2014 WL 5810458, at *3 (W.D. N.C 2014). See also Iowa Prot. & Advocacy
Servs., Inc. v. Rasmussen, 206 F.R.D. 630, 639 (S.D. Iowa 2001) (P&As are “independent
checks on state care” that would be meaningless if states could legislate away a P&A system’s
power to investigate). To the extent Idaho law prevents the release of the Coroner’s records,
PAIMI preempts those laws and mandates that the Coroner release them to Disability Rights.
Prot. & Advocacy For Persons With Disabilities v. Armstrong, 266 F. Supp. 2d 303, 319-21 (D.
Conn. 2003) (finding that PAIMI preempts state confidentiality law under the Supremacy Clause of the United States Constitution).10
Moreover, PAIMI directly addresses the Coroner’s concerns about confidentiality
concerning records, family members and witnesses. PAIMI obligates a P&A to maintain records
in a confidential manner:
An eligible [P&A] system which, pursuant to section 10805 (a)(4) of this title, has access to records which, under Federal or State law, are required to be maintained in a confidential manner by a provider of mental health services, shall, except as provided in subsection (b) of this section, maintain the confidentiality of such records to the same extent as is required of the provider of such services. 42 U.S.C.A. § 10806(a) (emphasis added). Courts have found that PAIMI’s confidentiality
requirements provide sufficient protection, and a P&A need not obtain consent of next of kin to
obtain records. Armstrong, 266 F. Supp. 2d at 320 (holding that PAIMI already addresses the
10 Numerous other cases are in accord. Mo. Prot. & Advocacy Servs. v. Mo. Dep’t of Health, 447 F.3d 1021, 1024 (8th Cir. 2006) (PAIMI preempts conflicting state law); Center For Legal Advocacy v. Hammons, 323 F.3d 1262, 1272 (10th Cir. 2003) (holding that medical peer review and quality assurance records are accessible to the P&A); Pennsylvania Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 428 (3d Cir. 2000) (holding the PAIMI Act preempts any state law giving a healthcare facility the right to withhold records); Wisconsin Coalition for Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d 1039, 1049 n. 3 (E.D. Wis. 2001) (holding that PAIMI preempts state statute where it interferes with P&A access to records); Oklahoma Disability Law Center, Inc. v. Dillon Family and Youth Services, Inc., 879 F. Supp. 1110, 1112 (N.D. Okla. 1995) (finding that the PAIMI Act preempts state law requiring court order before release of records).
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confidentiality of patient records). As a result, the Coroner’s records in a PAIMI investigation will be as protected from unlawful disclosure as when they are in the custody of the Coroner.
Finally, the Coroner’s reliance on Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012), for the argument that a federal common-law right of privacy trumps PAIMI is misplaced. In Marsh, a prosecutor copied autopsy photographs of the plaintiff’s deceased child to keep as a “memento,” then released them to a newspaper and a television station. Id. at 1152. The Ninth Circuit found the prosecutor’s conduct “shocks the conscience” and violated the plaintiff’s substantive due process right to be free of “unwarranted public exploitation by the government.” Id. at 1154-55.
This case is nothing like Marsh. The P&A seeks the Coroner’s investigatory records for a legitimate purpose pursuant to a federal statute that expressly grants that access. PAIMI does not allow the P&A to disseminate the records publicly and instead specifically requires that they be maintained in confidence. These protections are meant to ensure that the P&A can use the Coroner’s records to conduct its investigation while respecting the privacy and confidentiality of family members and witnesses.
III. DENYING ACCESS TO THE CORONER’S RECORDS IS CONTRARY TO PUBLIC POLICY. Blocking PAIMI access to the Coroner’s records would seriously undermine Disability
Rights’ efforts to learn what happened to D.T and why. Autopsies involve “inspecting and sometimes dissecting the corpse to determine the cause and manner of death and to detect what diseases may be present.” Coroner’s Mem. at 11. Autopsy reports contain “detailed descriptions of the dead body” and “frequently explain how the death occurred.” Id. The Coroner’s investigation can contain “family members and witnesses’ statements about the death, along with those individuals’ names and contact information.” Id. Medical examiners and coroners possess
15 


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this sort of direct and crucial evidence, and a P&A often cannot readily obtain the evidence from another source. If the Ada County Coroner denies access to its investigatory files, Disability Rights would be deprived of facts needed to perform a complete investigation.
A decision denying P&A access to coroners’ records could have implications far beyond the borders of Ada County. In 2004, medical examiners and coroner offices, charged with investigating suspicious or unexpected deaths, investigated roughly one-fifth of all U.S. death cases.11 All 50 states and the District of Columbia have either a statewide coroner system, a county-based medical examiner system, or a mixture of the two, with a total of almost 2,000 investigative offices nationwide.12 In 2004, county coroner offices made up 80 percent of these systems (1,590), and the coroners were, in general, elected.13 Medical examiners’ and coroners’ roles in investigating possible suicides are particularly important because there are “a number of reasons, civil as well as cultural, to conceal information about suicide.” Cyril H. Wecht M.D., J. D., Introduction, 1 Quinnipiac Health L.J. 7, 13 (1996). An “experienced, suspicious and thorough investigator” will gather the types of information from the death that enables a county coroner to detect evidence of abuse, neglect, or injury that the PAIMI Act is meant to correct. Id. Cf. §10805(a)(4); S. Rep. No. 102-114, at 3 (1991) (recommending the provision for access to records be clarified to afford a “significantly increased” level of authority for P&As after finding that PAIMI mandates have not fully been met). The impact of placing coroners’ investigative
11 Matthew J. Hickman, Ph.D. & Kristen A Hughes, MPA, Department of Justice, Medical Examiners 
 and Coroners’ Offices 1 (2004).
 12 Id.
 13 Id. 

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records off limits to P&As would be felt nationwide and would frustrate public policy favoring the broad access to records that PAIMI grants to P&As.14
Nevertheless, the Coroner argues that allowing P&As access to investigatory records “could significantly impact the effective administration of Idaho’s state criminal justice system” and financially burden Idaho county coroners. Coroner’s Mem. at 14. The Coroner’s speculation that disclosing its records will somehow compromise criminal investigations statewide misunderstands the effect of PAIMI access. The P&A does not confiscate the coroner’s records, make them unavailable to the criminal justice system, or in any way interfere with the coroner’s ability to do her job. Access means only that, and nothing precludes an Idaho coroner’s office from continuing to fulfill its statutory duties while also complying with PAIMI.
Finally, the Coroner argues that allowing Disability Rights to access its investigatory files would impact the work of coroners across Idaho. Because the Ada County Coroner performs forensic work for 28 other Idaho coroners who cannot afford their own pathologists, the Coroner claims that this Court’s decision “will impact whether the Ada County Coroner must disclose the autopsy reports created for other Idaho counties and, therefore, this case could have repercussions . . . throughout southern and eastern Idaho.” Coroner’s Mem. at 15.
That is all the more reason that this Court should be clear and firm in its decision granting records access to Disability Rights. PAIMI grants to P&As “broad investigatory authority.” Disability Rights Wisconsin, 463 F.3d at 725. Pursuant to PAIMI, Disability Rights is empowered to investigate throughout Idaho and should not have to relitigate its authority in
14 In FY 2012, P&A’s nationwide handled 1,978 abuse/neglect investigations. See Protection and Advocacy for Individuals with Mental Illness Program (PAIMI) Fact Sheet, National Disability Rights Network (2013), www.ncmhr.org/downloads/PAIMI-fact-sheet-2013.pdf (last visited July 16, 2015).
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county after county. This Court’s decision will make clear to each Idaho coroner’s office that PAIMI applies to them, and they should comply with P&As’ lawful requests for records.
IV. THE P&A HAS AUTHORITY TO DETERMINE WHEN PROBABLE CAUSE EXISTS. P&As operate as part of a federally-authorized state-wide system to protect and advocate
for individuals with mental illness. 42 U.S.C. § 10801(b)(2). The PAIMI Act authorizes P&As to “investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.” Id. § 10801(b)(2)(B) (emphasis added); see also § 10805(a)(1)(A). The PAIMI implementing regulations require that a P&A seeking records have received a complaint or report and “that there is probable cause to believe that the individual has been or may be subject to abuse or neglect.” 42 C.F.R. § 51.41.
The Coroner objects to providing investigatory records on the grounds that Disability Rights has not proved probable cause to the Coroner or the Court. Coroner’s Mem. at 7 n.9. The Coroner is unwilling to accept Disability Rights’ “independent conclusion that there is probable cause to believe that D.T. was subject to abuse or neglect.” Id.
PAIMI does not allow the Coroner to second-guess Disability Rights’ determination of probable cause. In Arizona Ctr. for Disability Law v. Allen, 197 F.R.D. 689, 692 (D. Ariz. 2000), a state behavioral health agency refused to allow a P&A access to records under PAIMI. The health agency withheld some files because it disagreed that there was probable cause to believe abuse or neglect occurred. Id. at 691. The court held that the P&A “is the final arbiter of probable cause for the purpose of triggering its authority to access all records for an individual that may have been subject to abuse or neglect.” Id. at 693. The court reasoned, “To conclude otherwise would frustrate the purpose of the P & A laws to establish an effective system to
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protect and advocate for the rights of individuals with disabilities.” Id. If Disability Rights believes it has probable cause to investigate, PAIMI requires the Coroner to cooperate.15
Nor may the Coroner put Disability Rights to the task of proving probable cause in court. A P&A’s probable cause determination does not require judicial review. Armstrong, 266 F. Supp. 2d at 321 (“[C]ourts have rejected attempts to require judicial review of the P & A's probable cause determination”). See, e.g., Prot. & Advocacy Sys., Inc. v. Freudenthal, 412 F. Supp. 2d 1211, 1219 (D. Wyo. 2006) (P&A is the final arbiter of probable cause); Ctr. For Legal Advocacy v. Earnest, 188 F. Supp. 2d 1251, 1257 (D. Colo. 2002) (state may not reevaluate P&A’s determination of probable cause), rev’d on other grounds, 320 F.3d 1107 (10th Cir. 2003); Iowa Prot. & Advocacy Servs., 206 F.R.D. at 638 (the P&A, not a state agency, shall make the relevant probable cause determination).
There is good reason that P&As need not obtain a court order to obtain access to records under PAIMI. Requiring P&As to go to court every time they seek records under PAIMI would frustrate the goals of PAIMI and unnecessarily burden the P&A. See Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358, 364 (M.D. La.1999) (“[I]t cannot be disputed that the delay in getting a court order frustrates the goal of the [PAIMI] Act.”); Okla. Disability Law Ctr., Inc. v. Dillon Family and Youth Servs., Inc., 879 F. Supp. 1110, 1112 (N.D. Okla. 1995) (“The timely access guaranteed by the Act should not be stripped of all meaning by requiring advocacy hearings to survive an application for a court order.”). As a recent evaluation of the PAIMI Act found,
15 See generally Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 894 F. Supp. 424, 429 (M.D. Ala. 1995) (a showing of probable cause “does not involve establishing what actually happened but presenting evidence in the record that supports allegations of abuse and neglect.”), aff’d, 97 F.3d 492 (11th Cir. 1996). Either the receipt of a complaint or a determination of probable cause will suffice. Cf. J.S. Tarwater Developmental Ctr., 97 F.3d at 498 (discussing the separate basis for seeking access to records under the DD Act); Equip for Equal., Inc. v. Ingalls Mem’l Hosp., 292 F. Supp. 2d 1086, 1095 (N.D. Ill. 2003) (recognizing that a P&A has “broad access to patients and facilities” as the result of “an investigation, a reported incident, a complaint, the existence of probable cause of abuse, or the existence of imminent danger of serious abuse or neglect”).
19 


Case 1:14-cv-00369-EJL Document 40 Filed 07/20/15 Page 21 of 23 “When forced to litigate access issues, significant portions of [a P&A’s] limited resources are consumed – resources that would better be used moving the nation’s mental health system forward.” Substance Abuse and Mental Health Servs. Admin., HHS Pub. No. PEP12­ EVALPAIMI, Evaluation of the Protection and Advocacy for Individuals With Mental Illness (PAIMI) Program, Phase III: Evaluation Report 87 (2011). Entities that possess records covered by PAIMI should not be permitted to delay the P&A’s investigation and divert P&A resources to litigation by conditioning access on a court order.
CONCLUSION The PAIMI Act is a critical component in the system of legal protections for people with disabilities and its words must be given full force and effect. This Court should affirm that the PAIMI Act and regulations require county coroners to comply with federal law and provide investigatory records consistent with PAIMI.
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Respectfully submitted,
VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
JUDY C. PRESTON Acting Chief Special Litigation Section
REGAN RUSH Special Litigation Counsel Special Litigation Section
/s/ Cynthia Coe CYNTHIA COE D.C. Bar No. 438792 
 Trial Attorney 
 Special Litigation Section 
 Civil Rights Division 
 U.S. Department of Justice 
 950 Pennsylvania Ave. NW, PHB 
 Washington, DC 20530 
 Telephone: (202) 353-1121 
 Facsimile: (202) 514-6903 
 Email: Cynthia.Coe@usdoj.gov

For the United States of America

/s/ William B. Schultz
 WILLIAM B. SCHULTZ 
 DC BAR NO. 218990 
 General Counsel 
 Department of Health & Human Services, 
 Office of the General Counsel 
 200 Independence Avenue, SW, Room 713F 
 Washington, DC 20201 
 Telephone: 202-690-7741 
 Facsimile: 202-690-7998 

WENDY J. OLSON 
 IDAHO STATE BAR NO. 7634
 United States Attorney
 District of Idaho 

CHRISTINE G. ENGLAND 
 CALIFORNIA STATE BAR NO. 261501 
 Assistant United States Attorney
 District of Idaho 
 Washington Group Plaza IV 
 800 East Park Boulevard, Suite 600 
 Boise, ID 83712-7788 
 Telephone: (208) 334-1211 
 Facsimile: (208) 334-1414 
 Email: Christine.England@usdoj.gov


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Case 1:14-cv-00369-EJL Document 40 Filed 07/20/15 Page 23 of 23 CERTIFICATE OF SERVICE
I hereby certify that on July 20, 2015, I electronically filed the United States’ Statement of Interest with the Clerk of the Court using the CM/ECF system, which will automatically send email notification of such filing to the attorneys of record.
/s/Jessica Black Jessica Black Civil Legal Assistant District of Idaho Washington Group Plaza IV 800 East Park Boulevard, Suite 600 Boise, ID 83712-7788
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 Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 1 of 32

UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF IDAHO 


IN THE MATTER OF DISABILITY RIGHTS IDAHO REQUEST FOR ADA COUNTY CORONER RECORDS RELATING TO THE DEATH OF D.T., ________________________________
ERWIN SONNENBERG, in his official capacity as ADA COUNTY CORONER, and ADA COUNTY,

Case No. 1:14-CV-00369-EJL
MEMORANDUM DECISION AND ORDER

Plaintiffs/Counter-Defendants,
v.
DISABILITY RIGHTS IDAHO, INC., an Idaho nonprofit corporation,

Defendant/Counter-Claimant.

This matter is before the Court on a Motion to Dismiss, Motion for Judgment on the Pleadings and Motion for Summary Judgment by Defendant/Counter-Claimant DisAbility Rights Idaho, Inc. (Dkt. 31) and a Motion for Summary Judgment by Plaintiffs/Counter-Defendants Erwin Sonnenberg, in his official capacity as Ada County Coroner, and Ada County (Dkt. 32). The issues have been fully briefed and are ripe for the Court’s consideration.
Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process
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would not be significantly aided by oral argument, the motions shall be decided on the record before this Court without a hearing.
FACTUAL BACKGROUND This case arises from DisAbility Rights Idaho, Inc.’s (“DRI”) request for various reports prepared by Ada County Coroner Erwin Sonnenberg (hereinafter “Coroner”) during his investigation of the death of a patient at a local hospital.1 DRI is a non-profit corporation which has been designated by the State of Idaho to protect and advocate on behalf of people with mental illness, as defined in the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. § 10801 et. seq. (“PAIMI”). In March 2014, D.T. was involuntarily committed at an inpatient psychiatric hospital located in Boise, Idaho. (Dkt. 31-2, ¶ 9.) Shortly thereafter, D.T. died. In the performance of his statutory duties under Idaho law, the Coroner investigated D.T.’s death, conducted an autopsy, prepared reports, and ruled D.T.’s death a suicide. (Dkt. 32-2, p. 2.) At DRI’s request, the psychiatric hospital provided DRI with the confidential patient records related to D.T.’s psychiatric care and treatment and the circumstances of D.T.’s death. (Dkt. 31-2, ¶ 13.) DRI alleges a review of such records led it to determine there was probable cause to believe that D.T.’s death may have resulted from abuse or neglect, and that it thereafter commenced its PAIMI investigation. (Id., ¶ 14.) In furtherance of this investigation, DRI sent the Coroner a letter on May 29, 2014
1 Dotti Owens became the duly elected coroner for Ada County as of January 1, 2015. Because Erwin Sonnenberg was named as a party to this case in his official capacity, Dotti Owens, as his successor, is automatically substituted as a party pursuant to Federal Rule of Civil Procedure 25(d).
MEMORANDUM DECISION AND ORDER- 2

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identifying itself as Idaho’s Protection and Advocacy System (“P&A”), and requesting copies of any “autopsy reports, coroners’ reports, inquest transcripts, investigative reports, medical and toxicology reports, and other records or documents that were reviewed or relied upon in reaching the conclusions and finding concerning [D.T.’s] death.” (Id., ¶ 15.) After several rounds of discussion between the parties, the Coroner refused to provide D.T.’s records, and, together with Ada County, ultimately filed an action against DRI in Idaho State Court (“state court action”). The state court action sought a declaratory judgment holding the Coroner was not required by state or federal law to provide DRI with the records it requested related to D.T.’s suicide, and that providing such records to DRI would violate the privacy rights of D.T., D.T.’s family, and/or individuals who interacted with D.T. (Dkt. 1-3.)
DRI removed the state court action to this Court and filed a counterclaim against the Coroner. (Dkt. 1; Dkt. 5.) DRI’s counterclaim seeks injunctive and declaratory relief under PAIMI and 42 U.S.C. § 1983, as well as attorney fees and costs under § 1983. After the Coroner and Ada County unsuccessfully moved to remand this action to state court,2 the parties filed the pending motions. The Department of Justice subsequently submitted a Statement of Interest pursuant to 28 U.S.C. § 517 because this case involves the proper interpretation and application of federal law. (Dkt. 40.)
STATUTORY BACKROUND Congress enacted PAIMI in 1986 after finding individuals with mental illness “are subject to neglect, including lack of treatment, adequate nutrition, clothing, health care, and adequate discharge planning.” 42 U.S.C. § 10801(a)(3). PAIMI helps protect and advance the
2 See Dkt. 24.
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interests of those with mental illness by requiring, as a condition of federal funding, that states establish P&A systems with authority to investigate and remedy suspected abuse or neglect. 42 U.S.C. § 10803. Under PAIMI, states may designate either an independent state agency or a private entity as their P&A. 42 U.S.C. § 10802(2). DRI, a private entity, is Idaho’s designated P&A system. (Dkt. 31-2, ¶ 8.)
Under PAIMI, DRI has the power to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the state.” 42 U.S.C. § 10805(a)(1)(B). To further these objectives, DRI has extensive authority to access individuals, patient records, and public and private facilities.3 42 U.S.C. 10805(a)(3); see also Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492, 497 (11th Cir. 1996) (hereinafter “Tarwater”)(“It is clear that [PAIMI] provides express authority for P&As to gain broad access to records, facilities, and residents to ensure that [PAIMI’s] mandates can be effectively pursued.”).
When incidents of abuse and neglect of individuals with mental illness are either reported to a P&A, or where the P&A has probable cause4 to believe such incidents have occurred, a
3 The P&A mandate under PAIMI extends to “individuals with mental illness” who are an inpatient or resident in a facility rendering care and treatment. 42 U.S.C. § 10802(4)(B)(i). Such “facilities” include, but are not limited to, “hospitals” and “community facilities for individuals with mental illness.” 42 U.S.C. § 10802(3).
4 For purposes of PAIMI, “probable cause” is defined as: [R]easonable grounds for belief that an individual with mental illness has been, or may be at significant risk of being subject to abuse or neglect. The individual making such determination may base the decision on reasonable inferences drawn from his or her experience or training regarding similar incidents, conditions or problems that are usually associated with abuse or neglect.
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P&A such as DRI shall, “in accordance with section 10806 … have access to all records of … any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access.” 42 U.S.C. § 10805(A)(4). PAIMI further provides the P&A shall have access to all records of:
any individual (including an individual who has died or whose whereabouts are unknown) (i) who by reason of the mental or physical condition of such individual is
unable to authorize the system to have such access; (ii) who does not have a legal guardian, conservator, or other legal
representative, or for whom the legal guardian is the State; and (iii) with respect to whom a complaint has been received by the system or with
respect to whom as a result of monitoring or other activities (either of which result from a complaint or other evidence) there is probable cause to believe that such individual has been subject to abuse or neglect. 42 U.S.C. § 10805(B).
Although § 10805 does not define the term “records,” several courts have concluded the definition of “records” in § 10806 is applicable to the term as used in § 10805. See Pennsylvania Prot. & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 426 (3d Cir. 2000); Connecticut Office of Prot. and Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 355 F.Supp.2d 649, 660 (D. Conn. 2005); Iowa Prot. and Advocacy Services, Inc. v. Gerard Treatment Programs, L.L.C., 152 F.Supp.2d 1150, 1160 (N.D. Iowa 2001); Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1272 n. 7 (10th Cir. 2003) (“We agree with the Third Circuit that §§ 10805 and 10806 should not be read in isolation. Section 10806 amplifies and describes what kind of records are included in those records to which a P&A System has access under § 10805[.]”). Therefore, for purposes of the relevant provisions of PAIMI, the term
42 C.F.R. § 51.2.
MEMORANDUM DECISION AND ORDER- 5

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“records” includes:
Reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records. 42 U.S.C. § 10806(b)(3)(A). In this case, it is undisputed that D.T. was a patient involuntarily committed at an inpatient psychiatric hospital located in Boise in or about March, 2014. (Dkt. 5, ¶ 32; Dkt. 8, p. 3.) As such, D.T. meets the definition of an “individual with mental illness” who was an inpatient or resident in a “facility” rendering care and treatment pursuant to PAIMI. See 42 U.S.C. § 10802(4)(B)(i)(I), § 10802(3). It is also undisputed that D.T. committed suicide while receiving psychiatric care and treatment at the hospital. (Dkt. 5, ¶ 33; Dkt. 8, pp. 3-4.) The primary issue in this case is thus whether the Coroner can be considered “an agency charged with investigating reports of incidents of abuse, neglect, and injury” occurring at a facility for patients with mental illness. DRI contends the records the Coroner compiled in the course of the investigation of D.T.’s death fall within the “records” definition enumerated within PAIMI. Ada County and the Coroner counter the Coroner is not an “agency” as used in the definition of “records” under PAIMI, and that DRI is accordingly not entitled to the Coroner’s records.
STANDARD OF REVIEW
The Court should grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56(c). If the moving party shows that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett,
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477 U.S. 317, 322-23 (1986). A mere scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The court should resolve reasonable doubts about the existence of a material fact issue against the moving party, and should view inferences drawn from the facts in the light most favorable to the nonmoving party. Id. at 631. Where, as here, the parties have filed cross-motions for summary judgment, many of the facts are not contested. When no genuine issue of material fact exists, the sole question is whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56(c).
As an alternative to summary judgment, DRI seeks dismissal pursuant to Federal Rule of Civil Procedure 12(h)(3) of the Coroner and Ada County’s Complaint for lack of standing and subject matter jurisdiction, and judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and17(a) because the Coroner and County have failed to allege the existence of a “substantial controversy” between the parties which would entitle them to declaratory relief. (Dkt. 31-1, pp. 8-16.) The Court finds both requests misplaced. The Court has federal question jurisdiction under 28 U.S.C. § 1331 as it pertains to 42 U.S.C. § 1983 and PAIMI, 42 U.S.C. § 10801, et. seq. See also Dkt. 24. This suit involves the Coroner’s purported legal obligation to provide records to DRI under PAIMI, and thus provides the Coroner with standing to assert its claims. Further, the judgment in this case will serve a useful purpose in clarifying the Coroner’s
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duty to provide DRI with requested records and will terminate and afford relief from the
uncertainty, insecurity and controversy giving rise to this proceeding. A declaratory judgment
is accordingly justiciable and the Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides
additional basis for federal jurisdiction. See Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir.
1984). The Court will not further address DRI’s requests for dismissal and judgment on the
pleadings, and instead proceeds solely to the issue of whether or not DRI is entitled to the
records it seeks as a matter of law.5
ANALYSIS
The crux of this dispute is DRI’s right to access the records from the Coroner’s
investigation of D.T.’s death. DRI contends it has authority under PAIMI to access the
Coroner’s investigatory records pertaining to the death of D.T. The Coroner responds that
DRI’s reading of PAIMI is overbroad and that DRI’s right of access to records under PAIMI
does not extend to records of a death investigation undertaken by a county coroner. The
Coroner further suggests that release of D.T.’s records to DRI would violate the privacy rights of
5 The Court will, however, grant DRI’s request that Ada County be dismissed from this case pursuant to Federal Rule of Civil Procedure 12(c) and 17(a) because it is not a real party in interest. As DRI notes, the County has not had any involvement, interest, or stake in the events alleged in this matter or in the controversy alleged in the Complaint. Instead, only the Coroner has any involvement in the matters alleged, and only the Coroner will be required to release records if the Court so orders. Ada County failed to respond to this argument in its response to DRI’s Motion for Summary Judgment. The Court accordingly finds the issue waived and dismisses Ada County from this action. Image Technical Serv., Inc. v. Eastman Kodak Co., 903 F.2d 612, 615 n. 1 (9th Cir. 1990); Reliance Ins. Co. v. Doctors Co., 299 F.Supp.2d 1131, 1154 (D. Haw. 2003) (“Failure to raise issues in opposition to summary judgment functions as a waiver” of the argument); Samica Enters. LLC v. MailBoxes Etc., Inc., 460 Fed. App’x 665, 666 (9th Cir. 2011) (arguments not raised in opposition to summary judgment are waived.).
MEMORANDUM DECISION AND ORDER- 8


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the decedent and various third parties, and that releasing such records would subject the Coroner to liability. The Coroner also challenges certain aspects of DRI’s request for records in this case, including DRI’s probable cause determination with respect to D.T. and the absence of consent from D.T.’s legal guardian(s). Finally, the Coroner challenges DRI’s right to relief under 42 U.S.C. § 1983. The Court will address each of these issues in turn.
1. Access to the Coroner’s Records under PAIMI DRI contends any records created by the Coroner as a result of his investigation into the
death of D.T. qualify as “records” to which DRI is entitled access pursuant to PAIMI. Specifically, DRI argues the Coroner’s records constitute “reports prepared by an agency charged with investigating reports of incidents of abuse, neglect or injury occurring at [a mental health] facility.” 42 U.S.C. § 10806(b)(3)(A). The Coroner maintains a “plain reading” of PAIMI clearly shows that it does not apply to the Coroner’s records. (Dkt. 32-1, p. 8.) First, the Coroner argues its records do not meet the definition of “records” found in § 10806 because the Coroner is not a “facility” as used in the definition of “records.” In support of this argument, the Coroner notes it is “not a hospital, nursing home, community facility for individuals with mental illness, a board and care home, homeless shelter, or a jail or a prison, nor does it render care and treatment.” (Dkt. 32-1, pp. 8-9). The fact that the Coroner is not a “facility” is immaterial; the potential abuse or neglect took place at a local hospital, and the hospital clearly meets the definition of a facility. 42 U.S.C. § 10802(3) (defining “facility” to include “hospitals, nursing homes, community facilities for individuals with mental illness, board and care homes, homeless shelters, and jails and prisons.”). Moreover, DRI does not claim it is entitled to the Coroner’s records under the first portion of § 10806(b)(3)(A), “reports
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prepared by any staff of a facility rendering care and treatment,” and nowhere suggests the Coroner is a “facility” under PAIMI. Instead, DRI contends it is entitled to the Coroner’s records under the second, disjunctive portion of § 10806(b)(3)(A), because the Coroner is an “agency charged with investigating reports of incidents of abuse, neglect and injury occurring at such facility.”
Second, the Coroner argues it is not an “agency” as used in the definition of “records,” found in § 10806(b)(3) because:
The term ‘agency’ in its common usage is defined as the office or function of an agent; an establishment engaged in doing business for another; an administrative division (as of a government)…. The Ada County Coroner is none of these. The Coroner is not an administrative division of the government, it does not engage in doing business for another, nor does it have the function of an agent. The Coroner is an independent, elected office pursuant to the laws and constitution of the state of Idaho, and determines the cause and manner of death. (Dkt. 32-1, p. 9).6 When interpreting the language of a statute, the starting point is always the language of the statute itself. Yocupicio v. PAE Group, LLC, 795 F.3d 1057, 1060 (9th Cir. 2015) (citation omitted). If the language is clear and unambiguous, the plain meaning of the statute controls. Id. In ascertaining the plain meaning of the statute, the court must look not only to the specific provision at issue, but also to “the structure of the statute as a whole, including its object and policy.” Id. If a court finds ambiguity, it should “examine the statute in the context of the entire statutory scheme, reason, and public policy to effect a construction that reflects the Legislature’s intent.” Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1081
6 Citing Merriam-Webster.com; http://www.merriam webster.com/dictionary/agency.
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(9th Cir. 2015) (citation omitted); see also United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (when “the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters … the intention of the drafters, rather than the strict language, controls.”); In re HP Inkjet Printer Litig., 716 F.3d 1173, 1181 (9th Cir. 2013) (a statute’s meaning was clear when “interpreted collectively and in context, and read together with the statute’s purpose and legislative history.”).
The parties do not dispute that the Coroner is charged by applicable Idaho statute with investigating reports of certain deaths, such as D.T.’s death by suicide. Compare Dkt. 32-1, p. 10 (noting pursuant to I.C. § 19-4301, the Coroner is charged with investigating deaths which occur as a result of violence, whether by homicide, suicide or accident) with Dkt. 31-1, p. 23 (“According to Idaho code, a county coroner is charged with the investigation of deaths, including those resulting from suicide or accident.”) What this Court must determine is whether a rational and logical reading of PAIMI permits the conclusion that the Coroner’s records constitute “reports prepared by an agency charged with investigating reports of incidents of abuse, neglect and injury[.]” 42 U.S.C. § 10806(b)(3)(A).
Neither the PAIMI Act nor the implementing regulations define the term “agency.” Nor have courts interpreted “agency” within the context of § 10806 in any published decision. In apparently the only case to consider the issue of whether PAIMI extends to the records of a county coroner, the Eastern District Court for the District of Wisconsin found Wisconsin’s P&A was entitled to such records under the clear meaning of the statute in an unpublished decision. Wisconsin Coal. for Advocacy, Inc. v. Barry Busby, Case No. 02-C-871 (E.D. Wis. September 24, 2003) (Dkt. 1-12). In so holding, the court explained:
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A coroner’s office is an agency charged with investigating deaths (certainly a form of injury), including deaths of individuals with mental illnesses that are the result of abuse and neglect. The definition of the word ‘agency’ includes ‘a person or thing through which power is exerted or an end is achieved,’ as well as ‘an administrative division (as of a government)’.… The duty to investigate reports of incidents of abuse, neglect and injury occurring at facilities covered by [PAIMI] is implicit in the broader duty of a coroner to investigate suspicious deaths within his or her jurisdiction. Id. at 12 (citing Merriam-Webster’s Collegiate Dictionary 22 (10th ed. 1999)). The Coroner suggests the absence of published cases regarding this issue supports the position that PAIMI and its regulations were not meant to apply to coroners’ offices. (Dkt. 32-1, p. 10 n. 13.) However, as DRI notes, the dearth of cases to address the issue could also mean that other county coroners “simply comply with the provisions of the PAIMI Act and provide a P&A with their records when requested, thereby negating the need for federal litigation.” (Dkt. 39, p. 2, n. 1.) In any event, the Court finds the rational offered by the Busby decision persuasive, as both the plain meaning of § 10806 and the legislative intent of PAIMI suggest DRI is entitled to the Coroner’s records. The Coroner can be considered an “agency” under the plain meaning of § 10806 because the definition of the word “agency” includes an administrative division of government. Idaho coroners are granted authority from both Idaho statute and the Idaho constitution. See Idaho Const. art. 18, § 6; I.C. § 31-2801 et. seq.; I.C. § 19-4301. The Ada County government decides the pay of the Coroner’s office deputies and pathologist, and pays them from county funds. I.C. § 31-2809. The Ada County commissioners have the power to remove the Coroner or confirm a coroner appointed by the executive. I.C. § 31-5213. The Coroner’s budget is paid from Ada
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County’s general fund.7 The Coroner is also a governmental entity charged with investigating suspicious deaths. I.C. § 19-4301(1). Each of these facts suggest the Coroner administers certain business of the county.
An Idaho Supreme Court decision also supports the finding that the Ada County Coroner is an administrative division of government. In Dep’t of Emp’t v. Ada Cnty. Fair Bd., 532 P.2d 933 (Idaho 1974), the court considered whether the Ada County Fair Board could be considered “an administrative division of county government.” Id. at 593-95. Like the Coroner’s officer, the Fair Board was statutorily authorized, was funded in Ada County’s budget, the county commissioners had the power to select the Board’s members, and the Board’s funds ultimately belonged to the general fund of Ada County. The Idaho Supreme Court noted that Ada County held ultimate control over the Fair Board’s existence and thus, the Fair Board was an administrative division of Ada County. Further “[a]s an inseparable part of Ada County, services performed by the Fair Board ipso facto are performed in the county’s employ.” Id. at 594. The Coroner is similarly a division of Ada County responsible for investigating deaths.
Further, that the Coroner is elected rather than appointed or hired is not dispositive. The Coroner has not cited any cases or other authority to suggest whether an entity is a division of government turns on whether the head of the office was elected. Indeed, if this were the case, administrative entities such as the Ada County Highway District would not be considered an administrative division of government simply because its commissioners are elected. What is
7 See Ada County State of Idaho, 2014-2015 Ada County Final Budget (“Ada County Budget”), https://adacounty.id.gov/Portals/o/CAR/Financia/Ada%20County%20FY15%20Adopted %20Budget.pdf.
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significant is not whether an entity’s director is elected, but is instead the role an entity fulfills—in this case, an official role to administer certain business of the county. See, e.g., Dkt. 32-1, pp. 9-11 (listing various responsibilities of the Coroner). The Coroner’s office is properly viewed under the clear terms of PAIMI as an “agency charged with investigating” because “investigating” is what it exists to do, regardless of how the Coroner acquired the position.
In addition to the plain meaning of § 10806, the legislative intent behind the statute illustrates DRI is entitled to the Coroner’s records in this case. The PAIMI legislative history indicates that the term “agency” refers to “any State, county, or municipal agency charged with the responsibility of investigating incidents of abuse and neglect in public residential facilities for the treatment of mentally ill individuals.” S.2393, 100th Cong., 134 Cong. Rec. S14450-03, 1988 WL 180662; S.2393, 100th Cong., 134 Cong. Rec. H9648-01 (1988), 1988 WL 177000 (emphasis added). The Coroner is a county entity charged with the responsibility of investigating suspicious deaths, wherever they may occur. Moreover, the P&A system was designed to ensure that individuals with disabilities are protected from abuse and neglect wherever they receive treatment. See S. Rep. No. 99-109 at 10 (1985), reprinted in 1986 U.S.C.C.A.N. 1361, 1370 (“The Committee recognizes the need for full access to facilities and clients and to their records in order to ensure the protection of mentally ill persons. It is the intent of the Committee that the [P&A] system have the fullest possible access to client records….”) (emphasis added). Denying DRI access to the Coroner’s records would undermine this intent.
Interpreting “agency charged with investigating” to include a coroner’s office is also consistent with the purpose of PAIMI. Congress enacted PAIMI as an “independent check” on
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existing state systems designed to investigate abuse and neglect of the mentally ill. Iowa Prot. and Advocacy Services, Inc. v. Rasmussen, 206 F.R.D. 630, 639 (S.D. Iowa 2001); 42 U.S.C. § 10801(a)(4). Under PAIMI, P&A’s are given broad authority to investigate incidents of abuse and neglect of individuals with mental illness and to pursue administrative, legal, and other remedies on behalf of those individuals. 42 U.S.C. § 10805(a)(1). To achieve those objectives, PAIMI requires that the P&A have access to “all records” of any individual who meets the criteria of § 10805(a)(4)(A) or, as in this case, of § 10805(a)(4)(B). Access to autopsy and other death investigation reports is essential to this task, as these reports contain the best, and sometimes only, evidence as to the precise cause of death. Without such information, the ability of DRI to conduct a full investigation into the death of D.T. would be severely limited. See Busby, at 13.
Other courts to interpret various aspects of the “records” a P&A is entitled to under PAIMI have also interpreted the provision broadly. For example, the Seventh Circuit rejected the Wisconsin Department of Public Instruction’s (“DPI”) similar attempt to deny it was an “agency charged with investigating” in order to avoid producing records under PAIMI in Disability Rights Wisconsin, Inc. v. Wisconsin Dep’t of Public Instruc., 463 F.3d 719, 726-27 (7th Cir. 2006). In so holding, the Court explained:
The argument that DPI itself is not an agency charged with investigating reports of abuse or neglect is … beside the point. For starters, DPI did in fact investigate complaints of potential abuse or neglect at [a facility]. And in the end, it is up to [the P&A] to determine whether abuse did in fact occur; preventing [the P&A] from obtaining the information it needs to investigate on the basis that DPI did something it was not required to do frustrates the goals of the federal P&A system. Id. The Third Circuit interpreted § 10805 expansively in Pennsylvania Prot. & Advocacy,
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Inc. v. Houstoun, 228 F.3d 423, 427 (3d Cir. 2000), and determined a state P&A was entitled to peer review reports prepared by a hospital despite the hospital’s contention that such reports were not “records of any individual” under § 10805 because peer review reports belong to the hospital, and not to an individual patient. The Court rejected the hospital’s contention, and determined the preposition “of” in § 10805 “may be used to show connection or association as well as ownership, and it seems clear that the term is used in the former sense here.” (citation omitted). The Third Circuit determined the state P&A was entitled to peer review reports prepared by a hospital, despite the hospital’s contention that such reports were not records “of any individual,” because peer review reports pertain to a patient, regardless of whether they were prepared by a hospital. Id. at 427.
In Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003), a facility similarly denied a P&A access to peer review and quality assurance records. The facility in Hammons argued § 10805 of PAIMI grants access to all records of patients, which do not include peer review or quality assurance records, and § 10806 grants access only to certain records of hospitals and agencies, so that § 10805’s arguably expansive language (providing access to “all records of … any individual”) is inapplicable to § 10806, and does not compel the conclusion that peer review and quality assurance records are hospital records under § 10806. Id. at 1267. The Tenth Circuit rejected this interpretation of the statute, finding Colorado’s P&A should have access to peer review and quality assurance records. In so holding, the Court explained:
We begin by noting that the statutory phrase ‘all records of…any individual’ is quite broad. While defendants urge us to follow the district court and find that this addresses only ‘patient records,’ and not ‘hospital records,’ and peer review and quality assurance records are not ‘patient records’ because they do not ‘belong’ to the patient, we agree
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with the Third Circuit’s observation that ‘of’ in this context need not be read so narrowly. Thus, a rational reading is that it refers to records pertaining to or relating to an individual… Peer review or quality assurance records involving the care of an individual could easily fit within that definition of records, along with myriad other records relating to an individual and/or his or her care. Id. at 1270 (citing Houstoun, 228 F.3d at 427) (emphasis added). Correspondingly, the term “agency” should not be interpreted as narrowly as the Coroner suggests. As the Department of Justice argues in its Statement of Interest: Interpreting ‘agency charged with investigating’ to include a coroner’s office is consistent with the purpose of PAIMI. One tool at the P&A’s disposal is the ability to obtain records to aid in its investigation. Coroner’s offices are in a unique position to provide indispensable evidence in an investigation and may be the only entities that perform a detailed examination of the decedent’s body. If coroners can withhold their records, an important investigatory tool will be lost to the P&As, and their ability to investigate will be compromised. That is not what Congress intended. (Dkt. 40, pp. 12-13.) In sum, the records the Coroner compiled in its investigation of D.T.’s death fall within the definition of “records” found in 42 U.S.C. § 10806(b)(3)(A). The Coroner can be considered an “agency charged with investigating” under the plain meaning of the statute, and this interpretation is consistent with the congressional purpose underlying PAIMI.
2. Privacy Issues
The Coroner contends it may be liable for disclosing private facts about an individual under Idaho and federal law, and that the personal privacy rights of D.T. and D.T.’s family members, as well as the personal privacy rights of hospital employees and family members mentioned in the Coroner’s records, preclude the Coroner from providing its investigative records to DRI. (Dkt. 32-1, pp. 11-14.) Although the Court appreciates the Coroner’s concerns, federal cases interpreting PAIMI establish such fears are unfounded.
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Under its express terms, PAIMI preempts any state law, including any state privacy laws, which would give the Coroner the right to withhold D.T.’s records from DRI. 42 U.S.C. § 10806(b)(2)(C). Federal courts interpreting PAIMI have consistently concluded that the access to records provided by PAIMI preempts state law providing greater restrictions on access. See Houstoun, 228 F.3d at 427 (“PAIMI preempts any state law that gives a healthcare facility the right to withhold such records); Coal. for Advocacy, Inc. v. Czaplewski, 131 F.Supp.2d 1039, 1048 (E.D. Wis. 2001) (“[I]f there is a conflict between the federal statutes and the state statute with respect to the agency/system’s authority to have access to the records of an individual with developmental disabilities or mental illness, it is the federal statutes which control. To hold otherwise would fly in the face of the Supremacy Clause of the Constitution.”); Rasmussen, 206 F.R.D. at 639 (“Protection and advocacy systems are established as independent checks on state care and regulation of care for dependent adults. That independent check would become meaningless if a state was allowed to simply legislate away a protection and advocacy system’s power to investigate by enacting restrictions.”); Advocacy Ctr. v. Stalder, 128 F.Supp.2d 358, 367 (M.D. La. 1999) (The authority to investigate “would mean nothing and advocacy in the form of investigation would be ineffective” if federal law did not preempt state law denying access); Mo. Protection and Advocacy Services v. Mo. Dep’t of Health, 447 F.3d 1021, 1024 (8th Cir. 2006) (PAIMI preempts conflicting state law). To the extent Idaho privacy law prevents the release of the Coroner’s records, PAIMI preempts such law and mandates that the Coroner release such records to DRI.
The Coroner’s concerns about federal privacy rights are also addressed by PAIMI. Specifically, PAIMI requires the P&A to maintain records in a confidential manner:
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An eligible [P&A] system which, pursuant to section 10805(a)(4) of this title, has access to records which, under Federal or State law, are required to be maintained in a confidential manner by a provider of mental health services, shall, except as provided in subsection (b) of this section, maintain the confidentiality of such records to the same extent as is required of the provider of such services.
42 U.S.C. § 10806(a).8 Courts interpreting PAIMI have repeatedly determined that privacy concerns should not
act as a bar to disclosure to a protection and advocacy system because PAIMI provides sufficient confidentiality protection. Czaplewski, 131 F.Supp.2d at 1052 (allowing the P&A access to records of nursing home patients would not unduly intrude on their privacy rights because PAIMI requires the P&A to keep such records confidential); Stalder, 128 F.Supp.2d at 366 (concluding the confidentiality of records would not be affected because the P&A is required to maintain the confidentiality of the records under PAIMI and “there is no reason to suspect that the confidentiality of the records will be breached.”); Iowa Prot. and Advocacy Services, Inc. v. Gerard Treatment Programs, 152 F.Supp.2d 1150, 1175 (N.D. Iowa 2001) (“Nor can [the facility] realistically argue that an interest in maintaining confidentiality of the records outweighs permitting [the P&A] to have the access it seeks…because [the P&A] must maintain the confidentiality of any records to the same extent [the facility] itself must.”); Tarwater, 97 F.3d at 499 (no liberty interest of the developmentally disabled person is threatened by disclosure of records to the P&A because it is precisely that interest that the P&A seeks to protect); Disability Rights Wisconsin, 463 F.3d at 729-30 (“The point of the federal P&A statutes is to establish and equip a specialized agency to look out for individuals with mental illness. Confounding the agency in the name of an illusory concern for privacy defeats that very
8 P&A’s are also required to maintain confidentiality under 42 C.F.R. § 51.45.
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important goal.”). This analysis not only extends to the privacy rights of the individual with mental illness,
but also to the privacy rights of their family members. See, e.g., Connecticut Office of Prot. and Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 355 F.Supp.2d 649, 664 (D. Conn. 2005) (allowing P&A systems access to records in the limited circumstances provided for in PAIMI does not contravene Congress’ intent to maintain parents’ confidentiality); Tarwater, 97 F.3d at 497-99 (neither students with disabilities nor their parents are harmed when a P&A agency is permitted access to students’ records); Disability Rights Wisconsin, 463 F.3d at 730 (privacy interests are outweighed by a P&A’s broad mandate to investigate and remedy suspected abuse and neglect). The aforementioned cases illustrate the Coroner’s concern with violating federal privacy rights is unfounded. The strict statutory requirement that DRI keep any records confidential defeats any alleged privacy concerns raised by the Coroner.
Despite both the express mandate of PAIMI that P&As keep records confidential and the wealth of cases holding disclosure to a P&A does not violate privacy rights, the Coroner maintains “there is a concern over the initial release to DRI—simply releasing the Records to anyone, DRI or otherwise, raises privacy concerns.” (Dkt. 35, p. 8) (emphasis in original). The Seventh Circuit addressed a similar argument in Disability Rights Wisconsin, 463 F.3d at 728, and held that because both the P&A and the agency charged with investigating must observe similar confidentiality requirements, the case “at bottom” involved the “confidential exchange of information between two agencies” and “[g]iven the duty of confidentiality common to both organizations, [the P&A’s] possession of the information seems no more troubling as a privacy matter than [the agency’s] possession.” Id. at 729. Similarly, the confidential exchange of
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information between the Coroner and DRI fails to raise any additional privacy concerns. Finally, the Coroner argues the outcome of this case will affect the Coroner’s duty to
disclose records in future cases and could significantly impact the effective administration of Idaho’s state criminal justice system. (Dkt. 32-1, p. 14.) The Coroner fails to articulate exactly how being required to provide records pursuant to PAIMI would negatively impact either the Coroner or Idaho’s criminal justice system. Nor does the Coroner identify any statutory or case law authority to support the claim that providing D.T.’s records to DRI would have such an unidentified negative impact. Further, as the Department of Justice notes in its Statement of Interest:
The Coroner’s speculation that disclosing its records will somehow compromise criminal investigations statewide misunderstands the effect of PAIMI access. The P&A does not confiscate the coroner’s records, make them unavailable to the criminal justice system, or in any way interfere with the coroner’s ability to do her job. Access means only that, and nothing precludes an Idaho coroner’s office from continuing to fulfill its statutory duties while also complying with PAIMI. (Dkt. 40, p. 17.) The Court is not persuaded that the Coroner or the Idaho criminal justice system would be negatively impacted by requiring disclosure of records to DRI when PAIMI applies. 3. Conditions to DRI’s Right to Access D.T.’s Records
a. Legal Representative The Coroner suggests DRI is not entitled to D.T.’s records because the conditions of 42 U.S.C. § 10805 have not been met. Specifically, § 10805(a)(4)(B) of PAIMI provides that a state’s P&A system shall have access to the records of: Any individual (including an individual who has died or whose whereabouts are unknown)
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(i)

who by reason of the mental or physical condition of such individual is

unable to authorize the system to have such access;

(ii)

who does not have a legal guardian, conservator, or other legal

representative, or for whom the legal guardian is the State; and

(iii) with respect to whom a complaint has been received by the system or

with respect to whom as a result of monitoring or other activities (either

of which result from a complaint or other evidence) there is probable

cause to believe that such individual has been subject to abuse or

neglect.

42 U.S.C. § 10805(a)(4)(B).

The Coroner submits these conditions must exist prior to a P&A being allowed to access

certain records, and that there is no evidence that D.T. did not have a legal guardian, conservator

or other legal representative. (Dkt. 38, p. 4.) As DRI notes, however, cases have placed the

burden of establishing the presence of a legal guardian, conservator, or other legal representative

on the entity blocking a P&A’s access. (Dkt. 36, p. 11.) As the court explained in Hartford

Bd. of Educ., 355 F.Supp.2d at 662, “[w]ithout the disclosure of the facility of the parents’ names

and addresses, it may be impossible for the P&A to contact those parents; at the very least, it

might significantly delay the process.” As such, courts have ordered a facility blocking access

to records to provide the P&A with the names of an individual’s guardians, conservators or

representatives, if any. Office of Prot. and Advocacy for Persons with Disabilities v. Armstrong,

266 F.Supp.2d 303, 318 (D. Conn. 2003). Placing the burden of identifying representatives on

the facility is consistent with the PAIMI regulations, particularly 42 C.F.R. § 51.43, which

provides:

Denial or delay of access.
If a P&A System’s access to facilities, programs, residents or records covered by the Act or this part is delayed or denied, the P&A system shall be provided promptly with a written statement of reasons, including, in the case of a denial for alleged lack of authorization, the name, address and telephone number of the legal guardian,
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conservator, or other legal representative of an individual with mental illness. Access to facilities, records or residents shall not be delayed or denied without the prompt provision of written statements of the reasons for the denial. 42 C.F.R. § 51.43 (emphasis added). The Court appreciates that the Coroner, unlike a healthcare facility, is unlikely to have information regarding D.T.’s legal representative or family members. (Dkt. 38, p. 5, n. 5.) However, that the Coroner lacks such information does not place an affirmative duty on DRI to determine whether D.T. has family members or representatives before it can access D.T.’s records. Indeed, courts have determined PAIMI grants the P&A “overriding” authority to obtain access to patients and their records, even where a guardian is identified and refuses to permit the P&A access. Gerard Treatment Programs, 152 F.Supp.2d at 1167-68 (“Reading the plain language of § 10805(a)(4) of the PAIMI Act in the context of the statute and its legislative history, the court concludes that this provision … provides that a P&A … is entitled to obtain access to the records and patients necessary for its investigation, so long as other statutory prerequisites are met, regardless of the wishes of the guardian.”) (citation omitted) (emphasis added). It follows that DRI should have access here where there is no evidence to suggest D.T. has a legal guardian, much less a guardian who objects to such access. Moreover, under Idaho law, even if D.T. had a guardian appointed on her behalf, the guardian’s authority terminated upon D.T.’s death, rendering any alleged guardian’s consent ineffective and unnecessary. I.C. § 15-5-306 (“[T]he authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward.”).
b. Probable Cause The Coroner also objects to providing investigatory records on the grounds that DRI has not proved it had probable cause to believe that D.T. was subject to abuse or neglect. (Dkt.
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32-1, p. 7, n. 9.) As mentioned, P&A’s have the authority to investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that such incidents occurred. 42 U.S.C. § 10805(a)(1)(a); § 10801(b)(2)(B).
Federal cases are clear that the P&A is the final arbiter of probable cause, and that an entity may not second-guess the P&A’s probable cause determination in order to withhold records. In Arizona Ctr. for Disability Law v. Allen, 197 F.R.D. 689, 692 (D. Ariz. 2000), a state behavioral health agency refused to allow a P&A access to records under PAIMI. The health agency withheld some files because it disagreed that there was probable cause to believe abuse or neglect had occurred. Id. at 691. The court instead held that the P&A “is the final arbiter of probable cause for the purpose of triggering its authority to access all records for an individual that may have been subject to abuse or neglect.” Id. at 693. In so holding, the court noted, “[t]o conclude otherwise would frustrate the purpose of the P & A laws to establish an effective system to protect and advocate for the rights of individuals with disabilities.” Id. The court further held: “Neither the P&A laws nor the regulations promulgated thereunder contemplate that the state or a service provider will reevaluate the P&A’s determination of probable cause and deny access to the P&A because the state or service provider disagrees that probable cause exists.” Id. This position has been overwhelmingly agreed with by other courts. See, e.g., Rasmussen, 206 F.R.D. at 638 (“the statute is clear that it is the protection and advocacy systems that shall make the relevant probable cause determination, as a result of its ‘monitoring and other activities,’ and not a state agency.”) (emphasis in original); Gerard Treatment Programs, 152 F.Supp.2d at 1159; Tarwater, 97 F.3d at 494-95; Armstrong, 266
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F.Supp.2d at 321; Prot. & Advocacy System, Inc. v. Freudenthal, 412 F.Supp.2d 1211, 1219 (D. Wyoming 2006); Ohio Legal Rights Serv. v. Buckeye Ranch, Inc., 365 F.Supp.2d 877, 887 (S.D. Ohio 2005). In short, DRI has determined probable cause exists to investigate D.T.’s death and the Coroner is not permitted to challenge this conclusion.
c. Judicial review of probable cause determination The Coroner also suggests this Court is ultimately the final decision-maker regarding whether probable cause exists, and offers the Court the opportunity to review the investigatory records of D.T.’s death in camera to assist with this determination. (Dkt. 32-1, p. 4, n. 5; p. 7, n. 9.) The Coroner does not provide any authority to support its contention that the Court is the final decision-maker regarding probable cause. Moreover, cases interpreting PAIMI have repeatedly held that a P&A’s probable cause determination does not require judicial review. Armstrong, 266 F. Supp.2d at 321 (“[C]ourts have rejected attempts to require judicial review of the P&A’s probable cause determination”) (citations omitted); Stalder, 128 F.Supp.2d at 367 (state policy of requiring in camera inspection by a court before releasing records to the state P&A clearly conflicted with PAIMI, would undermine P&A’s ability to investigate a claim and effectively advocate, and was preempted); Maryland Disability Law Ctr., Inc. v. Mt. Washington Pediatric Hosp., Inc., 664 A.2d 16, 24 (Md. Ct. App. 1995) (finding it would be overly burdensome and unnecessary to require a P&A to convince the court that probable cause exists prior to having access to patients, personnel and records). The Court accordingly declines the Coroner’s invitation to review DRI’s probable cause determination. 4. DRI’s right to relief under § 1983 In addition to declaratory and injunctive relief under PAIMI, DRI seeks attorney fees,
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costs and expenses, and declaratory and injunctive relief under 42 U.S.C. § 1983. Section 1983
provides, in pertinent part:
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 or other person within the jurisdiction thereof to the deprivations of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured[.]
42 U.S.C. § 1983.
DRI claims that in failing to promptly grant it access to the records of his investigation of
D.T.’s death, the Coroner, while acting under color of state law, deprived DRI of a right
guaranteed by federal law. The Coroner and DRI offer a number of arguments for and against
DRI’s right to recover under § 1983. 9 However, even assuming DRI could establish a claim
under § 1983, the Seventh Circuit has held:
Section 1983 fits awkwardly with the PAIMI Act because a protection and advocacy system has rights against both public and private care providers. The latter would not act under color of state law and could not be reached under section 1983…. Because the PAIMI Act itself provides a cause of action for equitable relief, we decline to address [the P & A’s] ability to pursue relief under 42 U.S.C. § 1983. Indiana Prot. and Advocacy Services v. Indiana Family and Social Services Admin., 603 F.3d 365, 380 (7th Cir. 2010). Just as PAIMI provides P&A’s with rights against both public and private care providers,
a P&A may itself be either private or public. As DRI notes, it is a private, non-profit
corporation. (Dkt. 39, pp. 7-8.) DRI highlights this distinction in order to defeat the Coroner’s
9 Most significant of these arguments is the Coroner’s position that DRI, as an arm of the state, is not a “person” who may bring suit under § 1983. This position is supported by Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989), wherein the Supreme Court held that Congress did not intend for “person” in § 1983 to include the sovereign for purposes of determining who may sue. See also Illinois v. City of Chicago, 137 F.3d 474, 477 (7th Cir. 1998) (stating, based on Will, that the state cannot be a plaintiff in a § 1983 suit).
MEMORANDUM DECISION AND ORDER- 26

Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 27 of 32
argument that DRI is not entitled to relief under § 1983 because a state actor cannot sue another under § 1983. (Dkt. 35, p. 7) (citing Virginia Office for Prot. and Advocacy v. Reinhard, 405 F.3d 185, 189 (4th Cir. 2005) (… “[W]e nevertheless conclude that an arm of the state cannot bring suit under that statute [§ 1983].”). DRI suggests it is not a state agency because it is a private nonprofit, charitable 501(c)(3) corporation, and thus meets the definition of “person” entitled to relief under § 1983. (Dkt. 39, p. 9.) This argument further illustrates the problem with allowing DRI to recover under § 1983. Under DRI’s reasoning, private P&A’s would be entitled to relief against state entities under § 1983, while state P&A’s would not, even though both allege a violation of PAIMI for failure to provide records. Although various federal courts have allowed P&A’s to sue under § 1983, neither the Ninth Circuit nor the Supreme Court have apparently addressed the issue. In the absence of controlling authority, and because DRI is already entitled to relief under PAIMI, the Court here, like the Seventh Circuit, declines to further address DRI’s ability to pursue relief under § 1983.
5. Declaratory and Injunctive Relief Finally, DRI seeks declaratory and injunctive relief against the Coroner. DRI requests the Court enter a declaratory judgment holding that DRI has the right to access the Coroner’s investigatory records of D.T.’s death; that the Coroner’s actions and inactions violated PAIMI, and that the Coroner must immediately give DRI access to the requested records. (Dkt. 31-1, p. 28). Although they seek opposite declarations, both parties agree declaratory relief is appropriate in this case, as declaratory relief is proper when a judgment will serve a useful purpose in clarifying and settling legal relations and when it will terminate and afford relief from uncertainty, insecurity, and controversy giving rise to the proceedings. Bilbrey v. Brown, 738
MEMORANDUM DECISION AND ORDER- 27


Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 28 of 32
F.2d 1462, 1470 (9th Cir. 1984). Given the Court’s analysis with respect to DRI’s right to access the Coroner’s records under PAIMI, DRI is entitled to the declaratory relief it seeks. Thus, pursuant to 28 U.S.C. § 2201(a), the Court will enter the following Declaration:
DRI is entitled to the Coroner’s investigatory records of D.T.’s death under PAIMI, and the Coroner has violated PAIMI by withholding such records. The Coroner must immediately give DRI access to the requested records. DRI also asks the Court to permanently enjoin the Coroner and her successors from failing to provide to DRI any report, document, or other record relating to D.T., including those records related to D.T.’s death and any investigation thereof, or relating to any other person who is a client of DRI or whose records DRI is authorized to have access to under PAIMI or other federal law; and otherwise interfering with any investigation of abuse and neglect authorized under the PAIMI Act or other federal law. (Id., pp. 29-30.) The Coroner denies an injunction is appropriate and contends the Coroner’s duty to disclose records under PAIMI must be determined on a case-by-case basis. (Dkt. 35, p. 9.) A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that the balance of hardships between the plaintiff and the defendant warrants an equitable remedy; and (4) that the public interest would not be disserved by a permanent injunction.10 Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 156-57
10 These are also the relevant factors in determining whether to grant a preliminary injunction, except a plaintiff seeking a preliminary injunction must establish likelihood of success on the merits, while the movant seeking a permanent injunction must actually attain success on the merits. Rasmussen, 206 F.R.D. at 634 (citations omitted); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12 (1987). Given the
MEMORANDUM DECISION AND ORDER- 28


Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 29 of 32
(2010) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006)). The decision to grant or deny permanent injunctive relief is within the district court’s broad discretion. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313 (1982).
Numerous courts have concluded that a P&A’s inability to meet its federal statutory mandate to protect and advocate on behalf of those with mental illness constitutes irreparable harm. See, e.g., Hartford Bd. of Educ., 355 F.Supp.2d at 653; Alabama Disabilities Advocacy Program v. SafetyNet YouthCare, Inc., 65 F.Supp.3d 1312, 1326 (S.D. Alabama 2014) (finding P&A suffered an irreparable injury by being denied access to fulfill its statutorily authorized legal duty); Gerard Treatment Programs, 152 F.Supp.2d at 1173 (holding P&A was irreparably harmed by being prevented from pursuing fully its right to access records in pursuit of its duty to investigate); Rasmussen, 206 F.R.D. at 635; Stalder, 128 F.Supp.2d at 367; Czaplewski, 131 F.Supp.2d at 1051; Buckeye Ranch, Inc., 365 F.Supp.2d at 883 (“There is no dispute that a protection and advocacy agency’s inability to meets its federal statutory mandate to protect and advocate the rights of disabled people constitutes irreparable harm.”). Having determined DRI is entitled to the Coroner’s records under PAIMI, it follows that DRI has suffered immediate and irreparable harm through the Coroner’s refusal to turn over the requested records.
DRI has also demonstrated that there is no adequate legal remedy available other than injunctive relief. The Coroner’s refusal to provide DRI with the records that it is charged to review poses a threat to DRI being able to discharge its obligations, and no amount of damages will remedy such sustained harm. Czaplewski, 131 F.Supp.2d at 1051. The danger of future
Court’s finding that DRI is entitled under PAIMI to the records it here seeks, DRI has attained success on the merits.
MEMORANDUM DECISION AND ORDER- 29

Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 30 of 32
violation is also certainly cognizable, as the Coroner maintains the disclosure of any private records must be determined on a case-by-case basis. To require DRI to re-litigate each time it seeks to obtain access to the Coroner’s records would impede DRI’s ability to effectively investigate and would defeat the purpose of PAIMI.
The balance of hardships also favors DRI, as no harm will come to the Coroner’s office by forcing them to comply with the provisions of PAIMI. Stalder, 128 F.Supp.2d at 368 (“the court sees no harm that would come to the defendant by forcing them to comply with provisions of the PAIMI Act, a law adopted by the national legislature). As the court held in Stalder, “[i]ssuance of a permanent injunction in this case does not subject the defendants to a penalty or a hardship since it requires them to do exactly what [PAIMI] requires, i.e., to comply with the law.” Id. Moreover, as at least one court has noted, a permanent injunction will actually benefit the Coroner’s office because it will serve to protect them from legal action, as “defendants [can] hardly be punished for complying with federal court order.” Czaplewski, 131 F.Supp.2d at 1052.
The public interest also weighs in favor in permitting DRI to access the Coroner’s records. PAIMI sets forth a clear federal legislative mandate for P&A systems to investigate potential instances of abuse or neglect of individuals with mental illness. 42 U.S.C. § 10801(b). It would undermine congressionally mandated independent review if P&A’s were unable to review records such as those requested here in the name of illusory privacy concerns.
In light of the findings above, the Court hereby permanently enjoins the Ada County Coroner and her successors from failing to provide to DRI any report, document, or other record relating to D.T., including those records related to D.T.’s death and any investigation thereof, or
MEMORANDUM DECISION AND ORDER- 30


Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 31 of 32
relating to any other person who is a client of DRI or whose records DRI is authorized to have access to under PAIMI.
ORDER NOW THEREFORE, IT IS HEREBY ORDERED:
1. DRI’s Motion to Dismiss, Motion for Judgment on the Pleadings, and Motion for Summary Judgment (Dkt. 31) is GRANTED IN PART and DENIED IN PART. DRI’s motion is DENIED to the extent it seeks judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) and 17(a). DRI’s motion is also DENIED to the extent it seeks dismissal of the Coroner’s Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). DRI’s motion is GRANTED to the extent it seeks dismissal of the County, and the County is hereby DISMISSED. DRI’s motion for summary judgment (Dkt. 31) is also GRANTED IN PART and DENIED IN PART. DRI is entitled to summary judgment as a matter of law with respect to its right to access D.T.’s records under PAIMI. DRI is also entitled to the declaratory and injunctive relief it seeks. DRI’s motion for summary judgment is DENIED with respect to its right to recover under § 1983.
2. Pursuant to 28 U.S.C. § 2201(a), the Court hereby declares DRI is entitled to the Coroner’s investigatory records of D.T.’s death under PAIMI, and the Coroner has violated PAIMI by withholding such records. The Coroner must immediately give DRI access to D.T.’s records.
MEMORANDUM DECISION AND ORDER- 31


Case 1:14-cv-00369-EJL Document 42 Filed 03/07/16 Page 32 of 32 3. The Court hereby permanently enjoins the Ada County Coroner and her successors
from failing to provide to DRI any report, document, or other record relating to D.T., including those records related to D.T.’s death and any investigation thereof, or relating to any other person who is a client of DRI or whose records DRI is authorized to have access to under PAIMI. 4. The Coroner’s Motion for Summary Judgment (Dkt. 32) is GRANTED IN PART and DENIED IN PART. The Coroner’s motion is GRANTED with respect to its liability under 42 U.S.C. § 1983. The Coroner’s motion is DENIED in all other respects.
DATED: March 7, 2016 _________________________ Edward J. Lodge United States District Judge
MEMORANDUM DECISION AND ORDER- 32


Case 1:14-cv-00369-EJL Document 43 Filed 03/07/16 Page 1 of 2

UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF IDAHO 


IN THE MATTER OF DISABILITY RIGHTS IDAHO REQUEST FOR ADA COUNTY CORONER RECORDS RELATING TO THE DEATH OF D.T., ________________________________
ERWIN SONNENBERG, in his official capacity as ADA COUNTY CORONER, and ADA COUNTY,
Plaintiffs/Counter-Defendants,
v.
DISABILITY RIGHTS IDAHO, INC., an Idaho nonprofit corporation,
Defendant/Counter-Claimant.

Case No. 1:14-CV-00369-EJL JUDGMENT

Pursuant to the Court’s March 7, 2016 Memorandum Order, entered herewith, and the Court being fully advised in the premises, IT IS HEREBY ORDERED, AJDUGED AND DECREED that judgment is accordingly entered as follows:
1. Judgment is entered in favor of DisAbility Rights with respect to the issue of its right to access certain records under the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. § 10801 et. seq. (“PAIMI”), the Court having declared DisAbility Rights is entitled to such

Case 1:14-cv-00369-EJL Document 43 Filed 03/07/16 Page 2 of 2

records under PAIMI, and that the Coroner shall release such records to DisAbility Rights.
DATED: March 7, 2016 _________________________ Edward J. Lodge United States District Judge

 
 Case 1:14-cv-369 Document <docnum> Filed <datefiled> Page 1 of 6
LC13,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:14−cv−00369−EJL

In Re Matter of Disability Rights Idaho Inc. Assigned to: Judge Edward J. Lodge Case in other court: Ada County District Court,
CV−OT−14−16560 Cause: 42:10801 Protection & Advocacy for Individuals w/Mental Ill
In Re
Matter of Disability Rights Idaho, Inc.

Date Filed: 09/05/2014 Date Terminated: 03/07/2016 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Plaintiff Ada County Coroner

represented by Sherry A Morgan ADA COUNTY PROSECUTOR'S OFFICE Civil Division 200 W Front Street, Rm 3191 Boise, ID 83702 (208) 287−7700 Fax: (208) 287−7719 Email: smorgan@adaweb.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gene A Petty Ada County Prosecutor's Office 200 W. Front Street, Room 3191 Boise, ID 83702 (208) 287−7700 Fax: (208) 287−7719 Email: gpetty@adaweb.net TERMINATED: 05/21/2015

Plaintiff Ada County

represented by Sherry A Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gene A Petty (See above for address) TERMINATED: 05/21/2015

V.
Defendant
Disability Rights Idaho, Inc. also known as DRI

represented by Amy Cunningham Disability Rights Idaho 1246 Yellowstone Avenue, Ste. A3 Pocatello, ID 83201 (208) 232−0922x3 Email: amy@disabilityrightsidaho.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Rose Holthus DisAbility Rights Idaho

Case 1:14-cv-369 Document <docnum> Filed <datefiled> Page 2 of 6

4477 Emerald Street, Ste. B−100 Boise, ID 83706 208−336−5353x19 Email: courtney@disabilityrightsidaho.org ATTORNEY TO BE NOTICED

John C Hummel Disability Rights Idaho, Inc. 4477 Emerald Street, Suite B−100 Boise, ID 83706 208−336−5353x123 Fax: 208−336−5396 Email: john@disabilityrightsidaho.org TERMINATED: 12/11/2014 ATTORNEY TO BE NOTICED

Counter Claimant
Disability Rights Idaho, Inc. an Idaho nonprofit corporation

represented by Amy Cunningham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Rose Holthus (See above for address) ATTORNEY TO BE NOTICED

John C Hummel (See above for address) TERMINATED: 12/11/2014 ATTORNEY TO BE NOTICED

V. Counter Defendant Ada County Coroner

represented by Sherry A Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gene A Petty (See above for address) TERMINATED: 05/21/2015

Date Filed 09/08/2014
09/08/2014 09/08/2014

# Docket Text
1 NOTICE OF REMOVAL by Disability Rights Idaho, Inc. from District Court, Fourth Judicial District, Ada County, State of Idaho, case number CV 0T 1416560.(Filing fee $400 receipt number0976−1204218.), filed by Disability Rights Idaho, Inc.. (Attachments: # 1 Cover Sheet Civil Cover Sheet 1:14−CV−369, # 2 Summons Summons CV 0T 1416560 8−29−14, # 3 State Court Complaint Complaint CV 0T 1416560, # 4 Exhibit Complaint Exhibit A, # 5 Exhibit Complaint Exhibit B, # 6 Exhibit Complaint Exhibit C, # 7 Exhibit Complaint Exhibit D, # 8 Exhibit Complaint Exhibit E, # 9 Exhibit Complaint Exhibit F, # 10 Exhibit Complain Exhibit G, # 11 Exhibit Complaint Exhibit H, # 12 Exhibit Complaint Exhibit I Part 1, # 13 Exhibit Complaint Exhibit I Part 2, # 14 State Court Service Documents CV OT 146560 Return & Affidavit of Service, # 15 CV OT 1416560 Registry of Actions 9−3−14)(Hummel, John)
2 Corporate Disclosure Statement by Disability Rights Idaho, Inc.. (Hummel, John)
RETURN OF SERVICE/PROCESS ASSUMED EXECUTED − Disability Rights Idaho, Inc. served on 9/5/2014. (service assumed for internal reporting purpose only) (st)

Case 1:14-cv-369 Document <docnum> Filed <datefiled> Page 3 of 6

09/08/2014 09/09/2014 09/18/2014
09/19/2014 09/24/2014
10/07/2014 10/07/2014 10/09/2014 10/10/2014 10/20/2014
10/21/2014
10/22/2014
10/22/2014 10/29/2014

3 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Ada County, Ada County Coroner, and Disability Rights Idaho, Inc. re 1 Notice of Removal. Consent/Objection to Magistrate due by 11/10/2014. (st)
4 Docket entry only − CONSENT to Magistrate Judge filed. (st)
5 ANSWER to Complaint for Declaratory Relief dated August 29, 2014, COUNTERCLAIM against Ada County Coroner by Disability Rights Idaho, Inc.. (Attachments: # 1 Exhibit DRI Counterclaim Exhibit A, # 2 Exhibit DRI Counterclaim Exhibit B, # 3 Exhibit DRI Counterclaim Exhibit C, # 4 Exhibit DRI Counterclaim Exhibit D, # 5 Exhibit DRI Counterclaim Exhibit E, # 6 Exhibit DRI Counterclaim Exhibit F, # 7 Exhibit DRI Counterclaim Exhibit G, # 8 Exhibit DRI Counterclaim Exhibit H)(Hummel, John)
6 NOTICE of Hearing: Telephonic Scheduling Conference set for 10/7/2014 02:00 PM Telephonic Hearing − Boise Courtroom 6 before Judge Candy W. Dale. (Attachments: # 1 TSC Letter, # 2 Litigation Plan) (ah)
7 AMENDED DOCKET ENTRY NOTICE of Hearing: Per the request of counsel in this matter, the Telephonic Scheduling Conference currently set for 10/7/2014 02:00 PM is hereby VACATED and RE−SET for 10/21/2014 01:30 PM PDT, 02:30 PM MDT Telephonic Hearing − Coeur d'Alene BK/Magistrate Courtroom before Judge Candy W. Dale. Counsel for Plaintiff to initiate the conference call and when all parties are on the line, connect to the courtroom at 208−665−6862. Litigation Plan(s) to be filed on or before 10/14/2014. (ah)
8 ANSWER to 5 Answer to Complaint, Counterclaim,,,, to Counterclaim of Disability Rights Idaho, Inc. Against Erwin Sonnenberg, In His Official Capacity as Ada County Coroner by Ada County, Ada County Coroner.(Petty, Gene)
9 MOTION to Remand Gene A Petty appearing for Plaintiffs Ada County, Ada County Coroner, Counter Defendant Ada County Coroner. Responses due by 10/31/2014 (Attachments: # 1 Memorandum in Support of Motion to Remand, # 2 Affidavit of Erwin Sonnenberg in Support of Motion to Remand)(Petty, Gene)
10 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Disability Rights Idaho, Inc., Disability Rights Idaho, Inc.. (Hummel, John)
11 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Ada County, Ada County Coroner. (Petty, Gene)
12 AMENDED DOCKET ENTRY NOTICE of Hearing: Telephonic Scheduling Conference set for 10/21/2014 02:30 PM MDT Telephonic Hearing − Boise Courtroom 6 before Judge Candy W. Dale. Counsel for Plaintiff to initiate the conference call and when all parties are on the line, connect to the courtroom at 208−334−9945. (same date/time as previously set, **please note new call−in telephone number**) (at)
14 Minute Entry for proceedings held before Judge Candy W. Dale: Appearance by Gene Petty for the Plaintiff; John Hummel for the Defendant. Telephonic Scheduling Conference held on 10/21/2014. Court and counsel discussed dates as contained in filed Litigation Plans. Consent process discussed. Telephonic Status Conference to be set in early 2015, specific date/time to be included in forthcoming Case Management Order. Time in Court 10 mins. (Hearing not recorded.) (at) (Entered: 10/23/2014)
13 CASE MANAGEMENT ORDER. Amended Pleadings due by 12/15/2014. Discovery due by 2/16/2015. Joinder of Parties due by 12/15/2014. Dispositive Pretrial Motions due by 4/15/2015. The Court will conduct a telephonic status conference on Monday, 1/26/2015, at 4:00 p.m. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
Set/Reset Hearings: Telephonic Status Conference set for 1/26/2015 04:00 PM in Boise − Courtroom 6 before Judge Candy W. Dale. (Per Case Management Order, dkt #13)(st)
15 RESPONSE to Motion re 9 MOTION to Remand filed by Plaintiffs on 10/7/2014 filed by Disability Rights Idaho, Inc.. Replies due by 11/17/2014.(Hummel, John)

Case 1:14-cv-369 Document <docnum> Filed <datefiled> Page 4 of 6

10/30/2014 11/07/2014 11/10/2014
11/10/2014 11/12/2014 11/12/2014 12/02/2014 12/11/2014 01/07/2015 02/25/2015 02/27/2015
04/29/2015
05/04/2015 05/21/2015 06/09/2015 06/10/2015 06/11/2015

16 NOTICE of Appearance by John C Hummel on behalf of Disability Rights Idaho, Inc., Disability Rights Idaho, Inc. (Hummel, John)
17 STIPULATION to Extend Scheduling Deadlines by Ada County, Ada County Coroner. (Petty, Gene)
18 ORDER TO EXTEND SCHEDULING DEADLINE. The Stipulation 17 is GRANTED. IT IS HEREBY ORDERED that Ada County and Ada County Coroner's Reply Memorandum in Support of Motion to Remand 9 be extended for 30 days. Therefore, Ada County's reply memorandum is due on 12/17/2014. (Amended Pleadings due by 1/14/2015. Joinder of Parties due by 1/14/2015.). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
Set/Reset Deadlines as to 9 MOTION to Remand . Replies due by 12/17/2014. (Per Order, dkt #18)(st)
The 60 day deadline has expired. Case has been reassigned to a District Judge. No more notice of availability or assignment will be sent out. Consent deadline(s) termed. (st)
DOCKET ENTRY NOTICE of Case Number Change. Case reassigned to Judge Edward J. Lodge for all further proceedings. Judge Candy W. Dale no longer assigned to case. Please use this case number on all future pleadings, 1:14−cv−00369−EJL. (st)
19 MEMORANDUM in Support re 9 MOTION to Remand filed by Ada County, Ada County Coroner.(Petty, Gene)
20 NOTICE of Substitution − Attorney John C Hummel terminated. (Hummel, John)
21 DOCKET ENTRY NOTICE VACATING HEARING: Due to reassignment of this matter on 11/12/2014, the Telephonic Status Conference set for 1/26/2015 04:00 PM in Boise − Courtroom 6 before Judge Candy W. Dale is hereby VACATED. (at)
22 STIPULATION TO CONTINUE DISPOSITIVE MOTION DEADLINE by Disability Rights Idaho, Inc.. (Cunningham, Amy)
23 ORDER GRANTING A CONTINUANCE OF THE DISPOSITIVE MOTION DEADLINE re 22 Stipulation filed by Disability Rights Idaho, Inc. Accordingly, it is ORDERED that: The 4/15/2015 dispositive motion deadline in Judge Dale's Case Management Order dated 10/22/2014 (Dkt 13), in this action is hereby VACATED. The deadlines set forth below will govern the filing of dispositive motions. Dispositive Motion deadline will be forty−five (45) days from the issuance of this Court's Order on the pending Motion to Remand (Dkt 9). Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
24 MEMORANDUM DECISION AND ORDER. Based on the foregoing, and being fully advised in the premises, IT IS HEREBY ORDERED that the Motion to Remand 9 is DENIED. IT IS FURTHER ORDERED that any dispositive motion(s) shall be filed by 6/15/2015. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
25 NOTICE of Appearance by Courtney Rose Holthus on behalf of Disability Rights Idaho, Inc., Disability Rights Idaho, Inc. (Holthus, Courtney)
26 NOTICE of Substitution − Attorney Sherry A Morgan for Ada County,Sherry A Morgan for Ada County Coroner,Sherry A Morgan for Ada County Coroner added. Attorney Gene A Petty terminated. (Morgan, Sherry)
27 MOTION for Leave to File Excess Pages Courtney Rose Holthus appearing for Counter Claimant Disability Rights Idaho, Inc., Defendant Disability Rights Idaho, Inc.. Responses due by 7/6/2015 (Holthus, Courtney)
28 NOTICE by Ada County, Ada County Coroner re 27 MOTION for Leave to File Excess Pages Notice of Non−Opposition (Morgan, Sherry)
CORRECTIVE ENTRY − Docket number 28 Notice (Other) filed by Ada County, Ada County Coroner was filed using the wrong event. The filing party shall re−submit

Case 1:14-cv-369 Document <docnum> Filed <datefiled> Page 5 of 6

06/11/2015 06/15/2015
06/15/2015
06/15/2015 07/01/2015 07/06/2015
07/06/2015 07/06/2015
07/14/2015 07/20/2015 07/20/2015 07/20/2015 07/27/2015 03/07/2016

their filing using the event 'Response to Motion'.(st)
29 RESPONSE to Motion re 27 MOTION for Leave to File Excess Pages filed by Ada County, Ada County Coroner. Replies due by 6/29/2015.(Morgan, Sherry)
30 DOCKET ENTRY ORDER granting 27 Motion for Leave to File Excess Pages. Both parties shall be given leave to file 37−page cross−motions for summary judgment. SO ORDERED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)
31 MOTION to Dismiss , Motion for Judgment on the Pleadings, and Motions for Summary Judgment Courtney Rose Holthus appearing for Counter Claimant Disability Rights Idaho, Inc., Defendant Disability Rights Idaho, Inc.. Responses due by 7/9/2015 (Attachments: # 1 Memorandum in Support Memorandum in Support of Dispositive Motions, # 2 Separate Statement of Undisputed Material Facts, # 3 Affidavit Affidavit of Cecilia Vega, # 4 Affidavit Affidavit of Dina M. Flores−Brewer, # 5 Affidavit Affidavit of Leanne Jopson)(Holthus, Courtney)
32 MOTION for Summary Judgment Sherry A Morgan appearing for Plaintiffs Ada County, Ada County Coroner. Responses due by 7/9/2015 (Attachments: # 1 Memorandum in Support of Motion for Summary Judgment, # 2 Statement of Material Facts, # 3 Affidavit of Dotti Owens)(Morgan, Sherry)
33 MOTION for Leave to File Excess Pages for Responsive Brief Courtney Rose Holthus appearing for Counter Claimant Disability Rights Idaho, Inc., Defendant Disability Rights Idaho, Inc.. Responses due by 7/27/2015 (Holthus, Courtney)
34 DOCKET ENTRY ORDER granting 33 Motion for Leave to File Excess Pages. Each party shall be allowed to file thirty (30) page response briefs, if necessary. SO ORDERED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)
35 RESPONSE to Motion re 31 MOTION to Dismiss , Motion for Judgment on the Pleadings, and Motions for Summary Judgment filed by Ada County, Ada County Coroner. Replies due by 7/23/2015.(Morgan, Sherry)
36 RESPONSE to Motion re 32 MOTION for Summary Judgment Filed on June 15, 2015 filed by Disability Rights Idaho, Inc., Disability Rights Idaho, Inc.. Replies due by 7/23/2015. (Attachments: # 1 Response_Pages 14−22, # 2 Response_Pages 23−28, # 3 Exhibit Exhibit A_Pages 1−8, # 4 Exhibit Exhibit A_Pages 9−16, # 5 Affidavit Affidavit of Jim Baugh, # 6 Exhibit Exhibit 1 to Affidavit of Jim Baugh, # 7 Exhibit Exhibit 2 to Affidavit of Jim Baugh)(Holthus, Courtney)
37 MOTION for Leave to File Excess Pages Courtney Rose Holthus appearing for Counter Claimant Disability Rights Idaho, Inc., Defendant Disability Rights Idaho, Inc.. Responses due by 8/7/2015 (Holthus, Courtney)
38 REPLY to Response to Motion re 32 MOTION for Summary Judgment filed by Ada County, Ada County Coroner.(Morgan, Sherry)
39 REPLY to Response to Motion re 31 MOTION to Dismiss , Motion for Judgment on the Pleadings, and Motions for Summary Judgment filed by Disability Rights Idaho, Inc., Disability Rights Idaho, Inc..(Holthus, Courtney)
40 Department of Justice Statement of Interest by United States (England, Christine) Modified on 7/23/2015 to edit filer at US Attorney's Office's request (st).
41 DOCKET ENTRY ORDER granting 37 Motion for Leave to File Excess Pages. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)
42 MEMORANDUM DECISION AND ORDER. NOW THEREFORE, IT IS HEREBY ORDERED: DRI's Motion to Dismiss, Motion for Judgment on the Pleadings, and Motion for Summary Judgment 31 is GRANTED IN PART and DENIED IN PART. The Coroner must immediately give DRI access to D.T.'s records. The Coroner's Motion for Summary Judgment 32 is GRANTED IN PART and DENIED IN PART.

Case 1:14-cv-369 Document <docnum> Filed <datefiled> Page 6 of 6

03/07/2016

Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
43 JUDGMENT. Pursuant to the Court's 3/7/2016 Memorandum Order, entered herewith, and the Court being fully advised in the premises, IT IS HEREBY ORDERED, AJDUGED AND DECREED that judgment is accordingly entered as follows: Judgment is entered in favor of DisAbility Rights with respect to the issue of its right to access certain records under the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. § 10801 et. seq. (PAIMI), the Court having declared DisAbility Rights is entitled to such records under PAIMI, and that the Coroner shall release such records to DisAbility Rights. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

 
 Case 1:14-cv-00369-EJL Document 1-3 Filed 09/08/14 Page 1 of 6

GREG H. BOWER ADA COUNTY PROSECUTING ATTORNEY

--
AUG 29 2014
CHRISByTOSTPEHPEHRANDIE~CH, Clerk
OI:PUry DAI(

GENE A. PETTY Deputy Prosecuting Attorney Civil Division 200 W. Front Street, Room 3191 Boise, ID 83 702 (208) 287-7700 (208) 287-7719 (facsimile) ISB Nos. 6831

IN THE DISTRICT COURT OF THE FOURTH WDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

IN THE MATTER OF DISABILITY RIGHTS )

IDAHO, INC.'S REQUEST FOR ADA COUNTY )

CORONER RECORDS RELATING TO THE )

DEATHOFD.T.

)

)

)

)

Case No. CV 0T 14 16 50 0
COMPLAINT FOR DECLARATORY RELIEF

COME NOW, Ada County and the Ada County Coroner, pursuant to Idaho Code§ 10-

1201 et seq., the Uniform Declaratory Judgment Act, and Idaho Rule of Civil Procedure 57 and

seek a declaratory judgment against Disability Rights Idaho, Inc. as follows:

I.

JURISDICTION AND VENUE

1. Ada County is a political subdivision of the State of Idaho, as it exists pursuant to

Title 31, Chapters 1, 6, 7, and 8 of the Idaho Code.

2. The Ada County Coroner is the elected coroner of the· County of Ada whose

authority is established in Title 31, Chapter 28 of the Idaho Code.

COMPLAINT FOR DECLARATORY RELIEF- PAGE 1
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3. Disability Rights Idaho, Inc. ("DRI'') is an Idaho corporation doing business in

Ada County, state ofidaho.

4. Pursuant to Idaho Code § 5-514, this Court possesses personal jurisdiction over

the par-ties.

5. Venue is proper in Ada County pursuant to Idaho Code § 5-404.

6. Pursuant to Idaho Code§§ 10-1201, et seq., this Court is entitled to determine the

respective obligations of the parties under Idaho and federal statutes regulations and to enter

a declaratory judgment in accordance with its determination.

II.

GENERAL ALLEGATIONS

7. On May 29, 2014, DRI sent a letter to the Ada County Coroner demanding

"autopsy reports, coroners' reports, inquest transcripts, investigative reports, medical and

toxicology reports, and other records or documents that were reviewed or relied upon in reaching

the conclusions and findings concerning [D.T's] death." DRI asserted that federal laws authorize

it "to access a broad array records and information related to deaths and other serious

incidents involving individuals with disabilities." It claimed that it "is the final arbiter regarding

a determination of probable cause for purposes of triggering our authority to access records." It

further asserted that a release was not necessary because

had died. This letter is attached

hereto as Exhibit A and has been redacted to remove D.T. 's name and date of death.

8. On June 25, 2014, the Ada County Coroner's Office denied DRI's request and

advised that the investigation into the death of D.T. was ongoing and that releasing the records

might interfere with or jeopardize that investigation. The Ada County Coroner's Office also

expressed concern that releasing these records may violate D.T. 's privacy rights under the

COMPLAINT FOR DECLARATORY RELIEF- PAGE 2
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Case 1:14-cv-00369-EJL Document 1-3 Filed 09/08/14 Page 3 of 6
Fourteenth Amendment to the United States Constitution and Idaho law. The Ada County Coroner's Office expressed its concern that releasing these records could subject Ada County to liability. The Ada County Coroner's Office also stated that the court is the final arbiter of whether DRI has a factual basis for its unsupported assertion that it has probable cause to investigate. This letter is attached hereto as Exhibit B and has been redacted to remove D.T. 's name and date of death.
9. On July 7, 2014, DRI wrote a letter to the Ada County Coroner asking to be notified when the investigation into the death of D.T. was completed. A copy of this letter is attached hereto as Exhibit C and has been redacted to remove D.T.'s name and date of death.
10. On July 8, 2014, the Ada County Coroner advised DRl that the investigation into D.T.'s death was complete and provided DRI with a copy of the Coroner's Public Information
Report. A copy of this letter and attachment are attached hereto as Exhibit n· and have been
redacted to remove D.T.'s name, city of residence, age, date of death, and gender. 11. On July 21, 2014, counsel for DRl wrote a letter to counsel for the Ada County
Coroner's Office. In that letter, DRl stated that it disagreed with the Ada County Coroner's decision not to release the records requested. It advised that "[w]e do not dispute that the Coroner may seek judicial review." DRI again asserted that it is the final arbiter of whether probable cause exists and that determination authorizes it to access Ada County Coroner records. The letter claimed that the Ada County Coroner cannot prevent DRl from accessing records related to D.T. 's death. DRI then stated if these records are not provided it may file a lawsuit against the Ada County Coroner. A copy of this letter is attached hereto as Exhibit E and has been redacted to remove D.T.'s name and date of death.
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Case 1:14-cv-00369-EJL Document 1-3 Filed 09/08/14 Page 4 of 6
12. On July 23, 2014, counsel for DRI wrote another letter to counsel for the Ada County Coroner, which cited additional statutes and regulations which DRI claimed supported its assertion that these records must be disclosed and that DRI has certain confidentiality requirements under federal law. A copy of this letter is attached hereto as Exhibit F and has been redacted to remove D.T.'s name and date of death.
13. On August 5, 2014, counsel for the Ada County Coroner responded to the letters from DRI's attorney. In that letter, counsel for the Ada County Coroner advised DRI that the. Ada County Coroner's Office "continues to have serious concerns about disclosing the coroner's records relating to [D.T.]" The statutes and regulations cited by DRI do not appear to apply to the records requested because the Ada County Coroner is not statutorily charged with overseeing or operating facilities that care for patients with disabilities.
14. In addition, counsel for the Ada County Coroner explained that the Ada County Coroner's Office continues to be concerned that disclosure of these records may violate the privacy rights of D.T., D.T.'s family, and individuals who interacted with D.T. and that disclosing the records may subject Ada County to liability since people involved in a coroner's report and investigation enjoy a constitutional right to privacy to avoid disclosure of personal matters. Under the 9th Circuit's precedent, this privacy right extends to medical information. Counsel for the Ada County Coroner also informed DRI that "[d]ue to the sensitive nature of these records and the constitutional implications of disclosure, it is the Ada County Coroner's policy not to release such records without a court order or permission from any person whose privacy rights are at risk." A copy of this letter is attached hereto as Exhibit G and has been redacted to remove D.T. 's name.
COMPLAINT FOR DECLARATORY RELIEF- PAGE 4
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Case 1:14-cv-00369-EJL Document 1-3 Filed 09/08/14 Page 5 of 6

15. On August 13, 2014, counsel for DRI wrote counsel for the Ada Cmmty Coroner

and stated that he agreed there were no published decisions holding that coroners must disclose

records to DRI.

provided a 2003 unpublished Wisconsin decision. Counsel for DRI again

mentioned the possibility of DRI filing a lawsuit against the Ada County Coroner. A copy of

this letter is attached hereto as Exhibit H. A copy of the unpublished Wisconsin decision is also

attached hereto as Exhibit I.

16. DRI and the Ada County Coroner disagree as to whether the Ada County Coroner

is legally required to provide DRI with the requested records.

17. The Ada County Coroner asserts that he is not required to comply with DRl's

request for access to the records related the death ofD.T.

18. The Ada County Coroner also asserts that providing DRI with requested

records would violate the state and federal privacy rights

., D.T.'s family, and any

individual who interacted with D.T.

WHEREFORE, Ada County and the Ada County Coroner pray for judgment in their

favor as follows:

A. That a Declaratory Judgment entered in this matter holding that:

The Ada County Coroner is not required by state or federal law to provide DRI

records relating to D.T.'s suicide including, but not limited to, autopsy reports,

coroners' reports, inquest transcripts, investigative reports, medical and

toxicology reports, or other records or documents that were reviewed or relied

upon in reaching the conclusions and findings concerning D.T.'s death.

Furthermore, that providing these Ada County Coroner records to DRl would

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Case 1:14-cv-00369-EJL Document 1-3 Filed 09/08/14 Page 6 of 6

violate the privacy rights of D.T., D.T.'s family, or individuals who interacted

withD.T.

B. For an award of costs and fees pursuant to Idaho Code §§ 10-1210, 12-117,

12-120, 12-121, and other applicable federal and state laws and/or Rules of Civil Procedure.

C. For other such relief as the Court deems just and proper.

2 ~of DATED this

August, 2014.

GREG H. BOWER

By:

COMPLAINT FOR DECLARATORY RELIEF- PAGE 6
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 Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 1 of 20

John C. Hummel DISABILITY RIGHTS IDAHO, INC. Email: john@disabilityrightsidaho.org Idaho State Bar No. 3646 4477 Emerald Street, Suite B-100 Boise, Idaho 83706 Telephone: (208)336-5353, ext. 123 Fax: (208)336-5396

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

IN THE MATTER OF DISABILITY

)

RIGHTS IDAHO, INC.’S REQUEST

)

FOR ADA COUNTY CORONER

)

RECORDS RELATED TO THE DEATH )

OF D.T.

)

______________________________ )

)

ERWIN SONNENBERG, in his

)

official capacity as ADA COUNTY

)

CORONER, and ADA COUNTY,

)

)

Plaintiffs,

)

)

vs.

)

)

DISABILITY RIGHTS IDAHO, INC., )

an Idaho nonprofit corporation,

)

)

Defendant.

)

______________________________ )

)

DISABILITY RIGHTS IDAHO, INC., )

an Idaho nonprofit corporation,

)

)

Counter-Plaintiff,

)

)

vs.

)

)

ERWIN SONNENBERG, in his

)

official capacity as ADA COUNTY

)

CORONER,

)

)

Counter-Defendant.

)

______________________________ )

Case No. 1:14-CV-369-CWD
ANSWER OF DISABILITY RIGHTS IDAHO, INC. TO COMPLAINT FOR DECLARATORY RELIEF DATED AUGUST 29, 2014
COUNTERCLAIM OF DISABILITY RIGHTS IDAHO, INC. AGAINST ERWIN SONNENBERG, ADA COUNTY CORONER

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 2 of 20
ANSWER The Defendant DISABILITY RIGHTS IDAHO, INC. (hereinafter, “DRI”) answers the Complaint for Declaratory Relief by Plaintiffs ADA COUNTY and the ADA COUNTY CORONER, dated August 29, 2014, as follows:
Answers to Complaint Allegations 1. DRI denies each and every allegation of the complaint not expressly admitted herein. 2. DRI admits paragraphs 1, 2, and 3 of the complaint. 3. DRI admits paragraph 4 in part only to the extent that it was proper for the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada (hereinafter, “Ada County Court”) to exercise personal jurisdiction over the parties at the time the complaint was filed on August 29, 2014. Because DRI removed this case to this Court on September 8, 2014 pursuant to the provisions of 28 U.S.C. §1441(a), DRI denies the remainder of paragraph 4 to the extent that it suggests that the personal jurisdiction continues to be proper in the Ada County Court following the removal of this action to this Court. In support of this denial, DRI affirmatively asserts that this Court possesses personal jurisdiction over the parties to this matter pursuant to 28 U.S.C. §1331. 4. DRI admits paragraph 5 of the complaint in part only to the extent that the Ada County Court was the appropriate venue at the time the complaint was filed on August 29, 2014. Because DRI removed this case to this Court on September 8, 2014 pursuant to the provisions of 28 U.S.C. §1441(a), DRI denies the remainder of paragraph 5 to the extent that it suggests that venue continues to
ANSWER AND COUNTERCLAIM – PAGE 2

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 3 of 20
be proper in the Ada County Court following the removal of this action to this Court. In support of this denial, DRI affirmatively asserts that venue is proper in this Court pursuant to 28 U.S.C. §1391(b)(2).
5. DRI denies paragraph 6 of the complaint. 6. DRI admits paragraph 7 of the complaint. 7. DRI admits paragraph 8 of the complaint in part that the Coroner sent DRI the letter dated June 25, 2014 attached as Exhibit B to the complaint. DRI denies the remainder of paragraph 8 and specifically denies the validity of the legal conclusions asserted in both paragraph 8 and the letter of June 25, 2014. 8. DRI admits paragraphs 9, 10, 11, and 12 of the complaint. 9. DRI admits paragraph 13 of the complaint in part that counsel for the Coroner sent DRI the letter dated August 5, 2014 attached as Exhibit G to the complaint. DRI denies the remainder of paragraph 13 and specifically denies the validity of the legal conclusions asserted in both paragraph 13 and the letter of August 5, 2014. 10. DRI admits paragraph 14 of the complaint in part that it accurately reflects that the Coroner stated in the letter of August 5, 2014 that the Coroner continued to have concerns about disclosing the requested records to DRI. DRI denies the remainder of paragraph 14 and specifically denies the validity of the legal conclusions asserted in both paragraph 14 and the letter of August 5, 2014. 11. DRI admits paragraph 15 and 16 of the complaint. 12. DRI denies paragraphs 17 and 18 of the complaint.
ANSWER AND COUNTERCLAIM – PAGE 3

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 4 of 20
Affirmative Defenses 13. Real Party in Interest. Ada County is not a real party in interest to this controversy because at no relevant time has said party had any involvement, interest or stake in the events or the alleged controversy described in the complaint, thus this Court should dismiss Ada County as a party plaintiff to this action pursuant to Fed. Rule. Civ. P. §12(b)(6) and §17(a). 14. Failure to State a Claim Upon Which Relief Can Be Granted. The complaint fails to state a claim upon which relief can be granted and this Court should dismiss the complaint in its entirety pursuant to 28 U.S.C. §§2201-02 and Fed. Rule. Civ. P. §12(b)(6) because it fails to present an actual controversy that is required for the entry of declaratory relief. Although the complaint asserts in paragraph 8 that providing DRI with the records in question would “violate the state and federal privacy rights of D.T., D.T.’s family, and any individual who interacted with D.T.” nevertheless the complaint fails to assert that either the Ada County Coroner or Ada County would suffer any legal jeopardy or legal liability whatsoever due to the release of coroner’s records to DRI, nor does the complaint assert that there are any legal obligations or duties between the parties that are in danger of being violated in the absence of declaratory relief. The complaint should be further dismissed under Fed. Rule. Civ. P. §12(b)(6) because it is not a “well-plead” complaint and thereby fails to state factual allegations sufficient to provide the grounds for entitlement to declaratory relief. 15. Lack of Standing. Ada County and the Ada County Coroner lack standing pursuant to Article III, Section 2, Clause 1 of the United States
ANSWER AND COUNTERCLAIM – PAGE 4

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 5 of 20
Constitution to assert the constitutional or other legal privacy rights of third parties. This Court should dismiss the complaint in its entirety for failure to present an actual case or controversy pursuant to Fed. Rule. Civ. P. §12(b)(1) and §12(b)(6) because the complaint fails to allege an invasion of a legally protected interest of either Ada County and the Ada County Coroner that is concrete and particularized, and actual or imminent, not merely speculative, conjectural or hypothetical. Furthermore, the complaint fails to assert a causal connection between any alleged injury to either Ada County or the Ada County Coroner that is fairly traceable to DRI, and not the result of the independent action of third parties not before the Court.
16. Defendant’s Legal Authority. At all relevant times DRI was legally authorized to request and receive records from the Ada County Coroner related to the death of D.T. because DRI is the designated Protection and Advocacy System (hereinafter, “P & A System”) authorized pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. §10801 et seq. and the implementing federal regulations for PAIMI, 42 C.F.R. Part 51.
17. Privacy Protection. At all relevant times DRI as the P & A System for the State of Idaho was legally required to strictly maintain the confidentiality of records obtained in connection with the investigation of the death of D.T., including any records obtained from the Ada County Coroner, pursuant to the provisions of PAIMI 42 U.S.C. §10806(a) and 42 C.F.R. §51.45(a), thus the alleged concerns of the Ada County Coroner that the disclosure of such records to DRI would violate the
ANSWER AND COUNTERCLAIM – PAGE 5

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 6 of 20
privacy rights of D.T. or other third persons are wholly unfounded as a matter of law.
COUNTERCLAIM DRI counterclaims against the ADA COUNTY CORONER as follows:
INTRODUCTION 18. DRI brings this counterclaim for injunctive and declaratory relief to challenge the refusal of the Ada County Coroner to provide timely access to the records of an investigation of the suicide of D.T., an individual with mental illness, in violation of the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq. and 42 U.S.C. § 1983. 19. DRI is the Protection and Advocacy System (hereafter “P & A System”) for the State of Idaho. According to PAIMI, 42 U.S.C. § 10801 et seq., DRI is authorized as one if its responsibilities as the P & A System to conduct investigations into incidents of possible abuse, possible neglect, injury or death of individuals with mental illnesses. This investigatory authority is triggered when DRI determines that there is probable cause to believe that an individual with mental illness may have been subject to abuse, neglect or injury. When conducting investigations into deaths of individuals with mental illness, DRI is empowered by PAIMI to have access to all records of that individual, including reports and supporting documents made or used by agencies charged with investigating incidents of abuse, neglect and injury.
ANSWER AND COUNTERCLAIM – PAGE 6

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20. Pursuant to state law, I.C. §19-4301, the office of the Ada County Coroner is an agency charged with investigating suicides and suspicious deaths in Ada County.
21. The Ada County Coroner’s refusal to provide prompt access to the requested records has substantially impaired DRI’s ability to complete a thorough, effective and timely investigation of the suicide of D.T.
22. The Ada County Coroner’s refusal to provide access to the requested records constitutes a violation of federal law.
JURISDICTION AND VENUE 23. Jurisdiction. This Court has jurisdiction over this counterclaim pursuant to 28 U.S.C. §1331 and §1343(a)(3) as this action arises under 42 U.S.C §§1080110827, 42 C.F.R. §51.41, and 42 U.S.C. §1983. 24. Venue. Venue is appropriate in this district pursuant to 28 U.S.C. §1391(b) because the offices of the parties are located in and all of the events and omissions giving rise to this counterclaim occurred in Ada County, Idaho.
STATUTORY PROVISIONS 25. 28 U.S.C. §§2201-02 (FDJA), 42 U.S.C. §1983, and 42 U.S.C. §10805 and §10807 (PAIMI) authorize this counterclaim. 26. The findings and purposes of the United States Congress, in passing PAIMI, 42 U.S.C. §10801 et seq., as set forth in 42 U.S.C. §10801, include in pertinent part the following: (a) The Congress finds that –
(1) individuals with mental illness are vulnerable to abuse and serious injury ...
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(4) State systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate. (b) The purposes of this chapter are –
(1) to ensure that the rights of individuals with mental illness are protected; and
(2) to assist States to establish and operate a protection and advocacy system for individuals with mental illness which will – ...
(B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.
27. Congress specified the investigatory authority of protection and
advocacy systems in 42 U.S.C. § 10805 in pertinent part as follows:
(a) A system established in a State under section 10803 of this title shall –
(1) have the authority to – (A) investigate incidents of abuse and neglect of
individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred ...
(4) In accordance with section 10806 of this title, have access to all records of ...
(B) any individual (including an individual who has died or whose whereabouts are unknown) –
(i) who by reason of the mental or physical condition of such individual is unable to authorize the system to have such access;
(ii) who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and
(iii) with respect to whom a complaint has been received by the system or with respect to whom as a result of monitoring or other activities (either of which may result from a complaint or other evidence) there is probable cause to believe that such an individual has been subject to abuse or neglect...
ANSWER AND COUNTERCLAIM – PAGE 8

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28. PAIMI includes a description of the types of records to which the
protection and advocacy system must be granted access in 42 U.S.C. §10806 in
pertinent part as follows:
(b)(3)(A) As used in this section, the term “records” includes ... reports prepared by an agency charged with investigating incidents of abuse, neglect, and injury occurring at such a facility that describe incidents of abuse, neglect and injury occurring at such facility and the steps taken to investigate such incidents ...
29. Federal regulations implementing PAIMI further specify the access to
records authority as set forth in 42 C.F.R. § 51.41 in pertinent part as follows:
(a) Access to records shall be extended promptly to all authorized agents of a P&A system ...
(c) Information and individual records, whether written or in another medium, draft or final, including handwritten notes, electronic files, photographs or video or audio tape records, which shall be available to the P&A system under the Act shall include but not be limited to ...
(2) Reports prepared by an agency charged with investigating abuse, neglect, or injury occurring at a facility rendering care and treatment, or by or for the facility itself, that describe any or all of the following:
(i) Abuse, neglect or injury occurring at the facility; (ii) The steps taken to investigate the incidents ... (iv) Supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect or injury such as records which describe persons who were interviewed, physical and documentary evidence that was reviewed, and the related investigative findings.
PARTIES
30. DISABILITY RIGHTS IDAHO, INC. (Counter-Plaintiff). DRI is a
nonprofit, charitable 501(c)(3) corporation organized in Idaho on July 6, 1977
under its previous name of “Comprehensive Advocacy, Inc.” On June 29, 2009
ANSWER AND COUNTERCLAIM – PAGE 9

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Comprehensive Advocacy, Inc. amended its articles of incorporation to change the corporation’s name to its current name of Disability Rights Idaho, Inc. Since the corporation’s founding in 1977, the State of Idaho has continuously designated DRI to protect and advocate on behalf of people with disabilities pursuant to federal law. Because the State of Idaho receives federal funds under the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§6021-30, it is required to "have in effect a system to protect and advocate the rights of individuals with developmental disabilities." 42 U.S.C. §6042(a). DRI is also the "eligible system" under PAIMI, 42 U.S.C. §10802(2). DRI has a mandate and authority to investigate abuse and neglect of people with disabilities in the State of Idaho under these laws. DRI spends considerable time and resources monitoring conditions at various institutions providing services to people with disabilities, including mental illness, within the State of Idaho, and in advocating for the rights of the people residing in those institutions. These facilities have included and will continue to include several located within Ada County. DRI is a nonprofit, public interest law firm under the direction of James R. Baugh as Executive Director with staff that includes attorneys, non-attorney advocates, and administrative staff.
31. ERWIN SONNENBERG, ADA COUNTY CORONER (Counter-Defendant). Erwin Sonnenberg, the Ada County Coroner, is the duly elected Coroner of Ada County, Idaho, pursuant to the Idaho Constitution, Article XVIII, Section 6, and Title 31, Chapter 28, Idaho Code. Pursuant to I.C. §19-4301, the Ada County Coroner has the duty to investigate and conduct inquests concerning deaths in Ada County that occur as a result of violence, including suicide death, or deaths that
ANSWER AND COUNTERCLAIM – PAGE 10

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occur under suspicious or unknown circumstances. The Ada County Coroner leads and directs an office that includes forensic medical staff, medico-legal investigators, administrative staff, and medical consultants. The office of the Ada County Coroner has its own forensic laboratory and employs a forensic pathologist to perform autopsies. The Ada County Coroner also officially records and certifies death certificates to reflect the cause and manner of deaths that occur in Ada County. The Ada County Coroner and his office completed, currently possess and presently maintain records relating to an investigation of the death of D.T. At all times relevant to this action, the Ada County Coroner was operating under the color of state law in his official capacity as a representative of a public entity and within the scope of his public employment.
FACTS 32. D.T. was a patient involuntarily committed at an inpatient psychiatric hospital (hereinafter, the “hospital”) located in the City of Boise, Ada County, in or about March 2014. 33. In or about March 2014, D.T. committed suicide while receiving psychiatric care and treatment at the hospital. 34. In or about March 2014, DRI received a report that a patient with mental illness had died in the hospital and that the cause of the patient’s death was suicide. The identity of the patient as D.T. was unknown to DRI at this time. Thereafter, DRI made inquiries of various agencies and entities, including the Boise Police Department, Idaho Department of Health and Welfare, and the hospital, to determine the identity of the patient and to confirm whether a suicide had occurred.
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35. On May 27, 2014, the hospital disclosed to DRI the identity of D.T. as the patient who had died in its facility due to suicide. The hospital also provided DRI with confidential patient records related to the psychiatric care and treatment of D.T. at the hospital and the circumstances of D.T.’s death.
36. Based upon the information, records and reports made known to DRI and upon DRI’s experience in investigating deaths in inpatient psychiatric facilities, DRI determined that D.T. was an individual with a mental illness and that there was probable cause to believe that D.T.’s death may have resulted from abuse or neglect. DRI, therefore, commenced an investigation of the circumstances of D.T.’s death, which is still ongoing.
37. As part of its investigation into the suicide of D.T., DRI requested investigatory records, including a copy of the autopsy report concerning D.T., from the Ada County Coroner on May 29, 2014. A true and correct copy of DRI’s letter of request, with appropriate privacy redactions, is attached to this counterclaim as Exhibit “A” and is incorporated herein by reference.
38. On June 25, 2014, the Ada County Coroner responded to DRI’s request for records by letter. A true and correct copy of that letter, with appropriate privacy redactions, is attached to this counterclaim as Exhibit “B” and is incorporated herein by reference. The response letter stated that the Ada County Coroner would not provide the requested records because an investigation into the death of D.T. was still ongoing and that disclosure of the records may violate the privacy rights of D.T. and others. The response letter further denied that DRI had authority under PAIMI to request and receive the documents.
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39. On July 7, 2014, DRI wrote to the Ada County Coroner in response to the Coroner’s letter dated June 25, 2014. A true and correct copy of that letter, with appropriate privacy redactions, is attached to this counterclaim as Exhibit “C” and is incorporated herein by reference. In the letter DRI stated that it did not wish to interfere with any ongoing investigation of the Ada County Coroner related to the death of D.T. and requested that the Coroner inform DRI when the investigation was complete.
40. On July 8, 2014, the office of the Ada County Coroner responded to DRI’s letter of July 7, 2014. A true and correct copy of that letter, with appropriate privacy redactions, is attached to this counterclaim as Exhibit “D” and is incorporated herein by reference. The letter advised DRI that the investigation into the death of D.T. was complete and enclosed a copy of a public information report regarding the matter.
41. On July 21 and 23, 2014, DRI wrote letters to the legal counsel for the Ada County Coroner. True and correct copies of those letters, with appropriate privacy redactions, are attached to this counterclaim as Exhibit “E” and “F” respectively and are incorporated herein by reference. In the letters, DRI advised legal counsel for the Ada County Coroner that PAIMI, its implementing regulations, and applicable case law authorized the disclosure of the coroner’s records to DRI. The letters renewed DRI’s request for records and advised that DRI would consider its legal remedies in the event that the Coroner refused to provide the requested records.
ANSWER AND COUNTERCLAIM – PAGE 13

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42. On August 5, 2014, legal counsel for the Ada County Coroner responded to the letters of July 21 and 23, 2014. A true and correct copy of that letter, with appropriate privacy redactions, is attached to this counterclaim as Exhibit “G” and is incorporated herein by reference. In this letter, legal counsel for the Ada County Coroner again denied DRI’s request for records, reasserted the Coroner’s position that coroner records were not subject to disclosure under PAIMI, and restated that privacy concerns required denial of DRI’s request.
43. On August 13, 2014, DRI responded to the letter of legal counsel for the Ada County Coroner. A true and correct copy of that letter, with appropriate privacy redactions, is attached to this counterclaim as Exhibit “H” and is incorporated herein by reference. The letter renewed DRI’s request for the records in question and asserted that an unpublished federal court case decision supported DRI’s legal position.
44. To date the Ada County Coroner has refused to provide access to the records in response to DRI’s repeated requests. The Ada County Coroner has further refused to acknowledge DRI’s right to have access to these records under federal law.
45. As a further part of its investigation into the suicide of D.T., DRI has requested and received relevant records and information from the Boise Police Department and the hospital, among other entities, in addition to the records requested but not received from the Ada County Coroner. Only the Ada County Coroner denied the requested access.
ANSWER AND COUNTERCLAIM – PAGE 14

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 15 of 20
COUNT ONE Claim for Relief Under 42 U.S.C. §10801 et seq. 46. DRI hereby re-alleges and reasserts paragraphs 18 through 45, above, as if fully set forth herein. 47. Pursuant to PAIMI, 42 U.S.C. §10801 et seq., DRI is the designated Protection and Advocacy System of the State of Idaho charged with investigating incidents of abuse and neglect of individuals with mental illness. 48. D.T. was an “individual with a mental illness,” eligible for DRI services, pursuant to 42 U.S.C. §10802(4) and 42 C.F.R. §51.2. 49. The hospital was a “facility rendering care and treatment” pursuant to 42 U.S.C. §10802(3) and 42 C.F.R. §51.2. 50. The Ada County Coroner’s position is created by the Idaho Constitution, and pursuant to I.C. §19-4301 is charged with investigation of deaths, including suicides, in Ada County. 51. Records pertaining to the investigation of the death of D.T. in the possession of the Ada County Coroner are “records,” pursuant to 42 U.S.C. §10805(4), are “information and individual records,” pursuant to 42 C.F.R. §51.41(c), and are reports and supporting information prepared or used by an agency charged with investigating abuse, neglect or injury which occurred at a facility rendering care and treatment, pursuant to 42 U.S.C. §10806(b)(3)(A) and 42 C.F.R. §51.41(c)(2). 52. DRI and its authorized agents must be provided with “prompt” access to the records referenced in paragraph 51 upon request. 42 C.F.R. §51.41(a).
ANSWER AND COUNTERCLAIM – PAGE 15

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 16 of 20
53. Despite numerous requests from DRI, the Ada County Coroner has repeatedly refused to acknowledge DRI’s authority under PAIMI and has repeatedly refused to allow DRI to have access to these records under PAIMI and its regulations.
54. The Ada County Coroner’s refusal to acknowledge DRI’s authority under PAIMI and to provide DRI with prompt access to the requested records in this matter prevents DRI from fully performing its statutory duty to investigate incidents of suspected abuse, neglect, and injury and to seek remedies to protect the rights of persons with disabilities. This causes immediate and irreparable harm to DRI and the people with disabilities DRI is designated to protect.
55. DRI has no adequate remedy at law and continues to suffer irreparable harm as a result of the Ada County Coroner’s actions and inactions.
56. The Ada County Coroner’s actions and inactions in refusing to promptly provide DRI with all the records it has requested relating to the investigation of the death of D.T. violate DRI's statutory rights under PAIMI, 42 U.S.C. §10801 et seq.
57. Due to the Ada County Coroner’s violations of PAIMI, DRI is entitled to declaratory and injunctive relief, attorney fees and costs, and other relief, as set forth in the Prayer for Relief below.
COUNT TWO Claim for Relief Under 42 U.S.C. §1983 58. DRI hereby re-alleges and reasserts paragraphs 18 through 45, above, as if fully set forth herein.
ANSWER AND COUNTERCLAIM – PAGE 16

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59. 42 U.S.C. §1983 provides relief for persons who, under color of state law, have been deprived of any rights, privileges or immunities secured under federal law.
60. The Ada County Coroner’s actions, inactions, practices, policies and procedures, as set forth herein, violated DRI’s statutory rights under PAIMI, 42 U.S.C. §10801 et seq., thereby depriving DRI of rights, privileges or immunities secured under federal law.
61. The Ada County Coroner undertook actions, inactions, practices, policies and procedures, as asserted herein, under color of state law.
62. In refusing to comply with DRI’s records requests, as asserted herein, the Ada County Coroner undertook actions and inactions knowingly, intentionally or with deliberate indifference and willful and callous disregard of DRI’s rights under PAIMI, 42 U.S.C. §10801 et seq.
63. Due to the violation of DRI’s statutory rights by the Ada County Coroner’s actions, inactions, practices, policies and procedures, as asserted herein, DRI has suffered immediate and irreparable harm and has no adequate remedy at law.
64. Due to the Ada County Coroner’s refusal to promptly allow access to the requested records, DRI has been unable to complete its investigation into the suicide of D.T. Furthermore, DRI has been required to devote staff time and effort to repeated attempts to obtain access, thereby incurring expenses that would not have been incurred if the Coroner had complied with DRI’s statutory access rights. DRI has thereby lost the opportunity to serve other clients and to address
ANSWER AND COUNTERCLAIM – PAGE 17

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protection and advocacy services to other issues, further affecting DRI’s allocation of staff resources and causing expense to DRI which would not have been incurred if the Coroner had complied with DRI’s statutory access rights.
65. Due to the Ada County Coroner’s violation of 42 U.S.C. §1983, DRI is entitled to declaratory and injunctive relief, attorney fees and costs, and other relief, as set forth in the Prayer for Relief below.
PRAYER FOR RELIEF WHEREFORE, DRI requests as follows: a) That the Court exercise jurisdiction over this action; b) That this Court dismiss the Complaint for Declaratory Relief of Ada County and the Ada County Coroner dated August 29, 2014 and that they take nothing thereby; c) That the Court enter a declaratory judgment holding as follows:
1) That DRI has the right to access the requested records of the Ada County Coroner under PAIMI; 2) That the Ada County Coroner’s actions and inactions violated PAIMI; and 3) That the Ada County Coroner immediately give DRI access to the requested records; d) That the Court enjoin the Ada County Coroner, his successors and any other person acting in concert with the Ada County Coroner or the successor of the Ada County Coroner regarding the following actions or inactions:
ANSWER AND COUNTERCLAIM – PAGE 18

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1) Failing to provide to DRI any report, document, or other record relating to D.T., including those related to D.T.’s death and any investigation thereof, or relating to any other person who is a client of DRI or whose records DRI is authorized to have access to under PAIMI or other federal law; and 2) Otherwise interfering with any investigation of abuse and neglect authorized under the PAIMI Act or other federal law; e) That the Court, enter a judgment against the Ada County Coroner, pursuant to 42 U.S.C. §1983 and 42 U.S.C. §1988(b), awarding attorney fees, costs and expenses incurred by or on behalf of DRI in this action; f) That the Court grant such other relief to DRI as may be just, equitable, and appropriate. Dated this 18th day of September, 2014.
DISABILITY RIGHTS IDAHO, INC. By: __ /s/ John C. Hummel____________
John C. Hummel ISB NO. 3646 Attorneys for Defendant/Counter-Plaintiff
ANSWER AND COUNTERCLAIM – PAGE 19

Case 1:14-cv-00369-EJL Document 5 Filed 09/18/14 Page 20 of 20 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 18th day of September, 2014, I filed the foregoing Answer and Counterclaim electronically through the CM/ECF system, which caused the following Counsel for the Plaintiffs to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Gene A. Petty Deputy Prosecuting Attorney Civil Division Ada County Prosecuting Attorney 200 W. Front Street, Room 3191 Boise, ID 83702 gpetty@adaweb.net
By: __ /s/ John C. Hummel____________ John C. Hummel
ANSWER AND COUNTERCLAIM – PAGE 20

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

IN THE MATTER OF DISABILITY RIGHTS IDAHO REQUEST FOR ADA COUNTY CORONER RECORDS RELATING TO THE DEATH OF D.T., ________________________________
ERWIN SONNENBERG, in his official capacity as ADA COUNTY CORONER, and ADA COUNTY,
Plaintiffs/Counter-Defendants,
v.
DISABILITY RIGHTS IDAHO, INC., an Idaho nonprofit corporation,
Defendant/Counter-Claimant.

Case No. 1:14-CV-00369-EJL
MEMORANDUM DECISION AND ORDER

INTRODUCTION Pending before the Court in the above-entitled matter is Plaintiffs Motion to Remand. (Dkt. 9.) The parties have filed their responsive briefing to the Motion to Remand and the matter is now ripe for the Court’s consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument the Court will decide this matter based on the record.
MEMORANDUM DECISION AND ORDER- 1

FACTUAL AND PROCEDURAL BACKGROUND On September 8, 2014, Plaintiffs, Ada County Coroner and Ada County, initiated this action by filing a Complaint for Declaratory Relief in Idaho state court. The claim relates to requests by the Defendant, Disability Rights Idaho, Inc. (DRI), demanding the Plaintiffs provide certain records relating to the suicide death of an individual, D.T., who had been residing in an inpatient behavioral health unit of an Ada County hospital. Plaintiffs denied the Defendant’s request for non-public records and initiated this declaratory judgment action asking for a determination as to whether they are obligated to provided Defendant with the requested records. (Dkt. 1-3.) The claim is brought pursuant to Idaho Code § 1201 et seq., the Uniform Declaratory Judgment Act, and Idaho Rule of Civil Procedure 57. (Dkt. 1-3.) (The Complaint also cites to Idaho Code §§ 10-1210, 12-117, 12-120, 12-121, and “other applicable federal and state laws and/or Rules of Civil Procedure.”). Defendant filed a Notice of Removal bringing the case before this Court pursuant to 28 U.S.C. §§ 1331, 1441(a), 1447(c) based on federal question jurisdiction. (Dkt. 1.) Plaintiffs then filed the instant Motion to Remand arguing the Court has discretion to refrain from deciding this declaratory judgment action because it involves state law issues. (Dkt. 9.) The Court finds as follows.
MEMORANDUM DECISION AND ORDER- 2

DISCUSSION 1. Standard for Removal
Federal district courts are courts of limited jurisdiction, and are “presumed to lack subject matter jurisdiction until the contrary affirmatively appears.” Dragovich v. United States Dep't of Treasury, 764 F.Supp.2d 1178, 1184 (N.D. Cal. 2011). When an action is removed to federal district court from state court, the district court has “broad discretion” to remand the removed claim or cause of action. 28 U.S.C. § 1452(b); see also 28 U.S.C. § 1446(c)(4) (noting that if a court finds “that removal should not be permitted, the court shall make an order for summary remand”).
A defendant may remove any civil action from state court to federal district court if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). Here, the Defendant argues a federal question is presented because the claim arises under the United States Constitution and/or federal law pursuant to 28 U.S.C. §§ 1331 and 1332. Federal question removal is appropriate under § 1331 which states: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant...to the district court of the United States....” 28 U.S.C. § 1441(a). The “burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix Inc., 167 F.3d
MEMORANDUM DECISION AND ORDER- 3

1261, 1265 (9th Cir. 1999). Any doubt as to the right of removal is resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
In determining whether removal is proper, the Court first considers whether a federal question exists on the face of the plaintiff's well-pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Only state-court actions that originally could have been filed in federal court may be removed to federal court by the Defendant.”). If a complaint alleges only state law claims and lacks a federal question on its face, then the federal court must grant the motion to remand. See 28 U.S.C. § 1447(c); Caterpillar, 482 U.S. at 392. There are, however, exceptions when a well-pleaded state law cause of action will be deemed to arise under federal law and support removal such as “(1) where federal law completely preempts state law, (2) where the claim is necessarily federal in character, or where the right to relief depends on the resolution of a substantial, disputed federal question.” ARCO Envtl. Remediation L.L.C. v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1114 (9th Cir. 2000) (internal citations omitted). Furthermore, cases “may not be removed to federal court on the basis of a federal defense.” Caterpillar, 482 U.S. at 393. This is true even when the federal defense is one that can be readily anticipated by the Plaintiff. Franchise Tax Bd. of Calif. v. Construction Laborers Vacation Trust of S. Cal., 463 U.S. 1, 10 (1983).
If the district court determines that removal was improper, then plaintiff may be awarded costs and attorney fees accrued in response to the defendant's removal. 28 U.S.C. § 1447(c). The court has broad discretion to award costs and fees whenever it finds that
MEMORANDUM DECISION AND ORDER- 4

removal was wrong as a matter of law. Balcorta v. Twentieth–Century Fox Film Corp., 208 F.3d 1102, 1106 n. 6 (9th Cir. 2000). 2. Analysis
This is a civil declaratory judgment action brought by Plaintiffs in Idaho state court. (Dkt. 1.) Defendant argues this Court has original jurisdiction because the claim requires a determination as to whether the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq., requires the Ada County Coroner to disclose the records requested by DRI. (Dkt. 15.) Plaintiffs counter that because the Ada County Coroner is not an agency described in PAIMI, 42 U.S.C. § 10806(3), that federal statue does not apply and, therefore, this action is solely a state law matter. (Dkt. 9 at 8.)
The question of whether or not PAIMI applies and its implications to the declaratory judgment claims raised here is not dispositive of the question raised on this Motion to Remand. The presence of a question concerning the application of a federal statute, in this case PAIMI, “in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule-that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court...a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Caterpillar, 482 U.S. at 398-99. Similarly, the Defendant’s reliance on PAIMI’s application to this case is a defense and/or
MEMORANDUM DECISION AND ORDER- 5

counterclaim. Any “federal question defendants raise in their counterclaims does not provide
a basis for removal.” Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir.
1985).1
The Court must instead look to the well-plead Complaint itself in ruling on the Motion
to Remand. “[F]ederal jurisdiction exists only when a federal question is presented on the
face of the plaintiff's properly pleaded complaint.” Caterpillar, 482 U.S. at 392.2 In doing so
here, the Court concludes that federal question jurisdiction is found on the face of the
Complaint. See 28 U.S.C. §§ 1331 and 1441.
The Complaint seeks a declaratory judgment determination as to whether or not the
Ada County Coroner is required to provided DRI with the requested records and whether
such a disclosure would expose the Defendants to liability for violating any privacy rights
of any individuals included in those records. (Dkt. 1.) While the Complaint cites only to
Idaho state statutes, it makes several references to “federal law.” For instance, the Complaint
contains statements made in Plaintiffs’ letters responding to the Defendant’s requests that
1 Plaintiffs’ argument that PAIMI does not apply in this case because the Ada County Coroner is not an agency described in 42 U.S.C. § 10806(3) goes to the substance of Defendant’s defense/counterclaim. (Dkt. 9 at 7-8.) This Court makes no finding in this Order concerning the question of whether PAIMI applies and/or requires disclosure of the records sought by Defendant in this case.
2 The Wilton/Brillhart doctrine argued by Plaintiffs does not apply to the circumstances in this case. (Dkt. 9.) That doctrine is at play when a federal court is considering whether to exercise its discretion over a federal declaratory judgment action in the face of a pending parallel state court case. Here, there is no other state court case pending. The state court declaratory judgment action has been removed. Thus, the question here is instead whether the claim stated in the Complaint in this case gives rise to federal question jurisdiction.
MEMORANDUM DECISION AND ORDER- 6

expressed concerns over violating privacy rights protected under the “Fourteenth Amendment to the United States Constitution” and “Ninth Circuit precedent.” (Dkt. 1-3 at ¶ 8, 14.) More importantly, the Complaint’s prayer for relief seeks a determination as to whether “providing DRI with the requested records would violate the state and federal privacy rights” and declaratory judgment that Plaintiffs are “not required by state or federal law to provide DRI records relating to D.T.’s suicide....” (Dkt. 1-3 at ¶¶ 18 and A) (emphasis added.)
The Court finds that these statements in the Complaint, at least at this time, give rise to federal jurisdiction.3 Specifically, Plaintiffs’ request for a determination as to whether either state or federal law require them to disclose the requested records and whether doing so would violate privacy rights protected by both state and federal law. (Dkt. 1-3 at ¶ A.) By so stating in their Complaint, the Plaintiffs have clearly sought a determination concerning their obligations to disclose the records and possible privacy rights violations under both state and federal law. Because federal law has been raised on the face of the Complaint itself, the Court finds federal jurisdiction has been shown in this case. The Motion to Remand is denied.
3 The state law determinations implicated in this case are undoubtedly important ones that may be more appropriate for the state court to rule upon. In the event the basis giving rise to federal jurisdiction in this case are later resolved, this Court may decline to exercise supplemental jurisdiction over any remaining state law claims and remand the case at that time.
MEMORANDUM DECISION AND ORDER- 7

ORDER Based on the foregoing, and being fully advised in the premises, IT IS HEREBY ORDERED that the Motion to Remand (Dkt. 9) is DENIED. IT IS FURTHER ORDERED that any dispositive motion(s) shall be filed by June 15, 2015.
DATED: April 29, 2015 Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER- 8