By BOB ANEZ/Associated Press Writer
HELENA - A 28-year-old woman, alleging the state and Sweet Grass County are responsible for her foster father raping her as a teenager, has asked the Montana Supreme Court to declare the state legally responsible.
The former Big Timber woman wants the high court to overturn a judge's ruling in March that threw out her claims of state liability for the sexual attack that occurred 13 years ago at the hands of James Tulley, who also was deputy Sweet Grass County attorney.
The request seeks Supreme Court action before a District Court trial proceeds on the victim's claims against the state and county.
District Judge Thomas Honzel of Helena made a mistake in his ruling in favor of the state and, if allowed to stand, ''the parties will face a needless cycle of trial, appeal and retrial'' that will prejudice the woman, the petition said.
''To prevent such an injustice and expenditure of unnecessary time and expense, this court should exercise supervisory control and rule the state can be held vicariously liable for Tulley's tortuous conduct,'' it said.
Michael Cok of Bozeman, the woman's attorney, declined to comment on the appeal. He cited a gag order issued by Honzel two years ago that prevents those involved in the case from talking to the news media.
Shelton Williams, a Missoula lawyer representing the state, also declined to comment and cited rules of conduct for attorneys that he said prevents him from discussing the case.
The woman was 15 years old when placed in the state's care following reports of abuse and neglect by her adoptive parents. Tulley, in his official position, submitted the request to make the girl a ward of the state.
He and his wife became licensed foster parents. The girl moved in with them in late 1989 and lived there through the following October.
During that time, she later testified, Tulley and she repeatedly had sex. In June 1991, she ran away with Tulley to Seattle.
The woman testified that it was not until she was rereading her journal in 1998 that she realized how damaging her relationship with Tulley had been. She filed suit against the state and county in May 2000.
Tulley has since pleaded guilty to rape and last month was given a five-year prison sentence with all but 30 days suspended.
In her Supreme Court request, the woman argued the state is legally responsible for what happened to her because Tulley was an agent for the Department of Family Services at the time and was licensed as a foster parent by the state.
State law regarding abused and neglected children spells out the government's policy is their protection, yet that is meaningless if the state can avoid responsibility for a violation of its duty by asserting its employees or agents did it, the petition said.
It also said that ''there can be no clearer example of governmental abuse than when one of the state's agents, a licensed foster father, deputy county attorney and member of the minor's child protective team, sexually abuses his foster daughter who has been placed in the government's care and entrusted to the government for protection,'' the court was told.
The state contended it was not liable for Tulley's abuse of the girl because his actions were not part of his official duties on behalf of the department, including his role as a foster parent.
Honzel agreed with that argument, citing a 1998 Supreme Court decision as the basis for the ruling. He also said that none of Tulley's positions regarding this case automatically made him an employee of the state.