Chapter 5.3.3 Types of “Acts” Under the Revised ICJ

Types of “Acts” Under the Revised ICJ*

The distinction between discretionary and ministerial is a critical consideration for state officials charged with administering the Revised ICJ. Many of the Revised ICJ Rules impose ministerial acts on state officials.  See, e.g., ICJ Rules 4-102 (Interstate Comm’n for Juveniles 2020) (Sending and Receiving Referrals); 5-101(4) (mandating the quarterly filing of reports); 8-101 (mandatory circumstances for issuing a travel permit).  Each of these rules imposes a specific, non-discretionary obligation on state officials.  For example, a state official does not exercise judgment or discretion in filing quarterly reports, although they clearly exercise discretion as to the content of the reports.    By contrast, ICJ Rule 4-104 imposes both a discretionary duty and a ministerial duty on state officials in that it allows a receiving state official to deny a transfer but mandates that the sending state provide written notification of the juvenile's departure to the receiving state.

* The question of whether a state official’s acts under the Revised ICJ and its rules are discretionary or ministerial in nature for purposes of liability considerations may be irrelevant given that at least one court has held with reference to the ICAOS that the compact does not confer a federal cause of action.  See discussion infra § 5.5.2.  Although the Revised ICJ may not confer a private right of action in federal court, this does not necessarily mean that state officials could not be subject to suit in state court for their ministerial acts.