402 P.2d 91 (Or. 1965), Utley v. City of Independence

Citation:402 P.2d 91, 240 Or. 384
Opinion Judge:DENECKE, J.,
Party Name:George S. UTLEY, Respondent, v. CITY OF INDEPENDENCE, Harvey E. Shellenbarger and The General Insurance Company of America, Defendants, Don Hardy, Appellant.
Attorney:Myron L. Enfield, Salem, argued the cause for appellant. With him on the briefs were Geo. A. Rhoten and Rhoten, Rhoten & Speerstra, Salem. John Daniel Callaghan and Norma J. Paulus, Salem, argued the cause for respondent. With them on the brief were William G. Paulus and Paulus & Callaghan, Salem.
Case Date:May 19, 1965
Court:Supreme Court of Oregon

Page 91

402 P.2d 91 (Or. 1965)

240 Or. 384

George S. UTLEY, Respondent,

v.

CITY OF INDEPENDENCE, Harvey E. Shellenbarger and The

General Insurance Company of America, Defendants,

Don Hardy, Appellant.

Supreme Court of Oregon, En Banc

May 19, 1965

Argued and Submitted June 5, 1964.

Reargued Dec. 9, 1964.

Page 92

[240 Or. 385] Myron L. Enfield, Salem, argued the cause for appellant. With him on the briefs were Geo. A. Rhoten and Rhoten, Rhoten & Speerstra, Salem.

John Daniel Callaghan and Norma J. Paulus, Salem, argued the cause for respondent. With them on the brief were William G. Paulus and Paulus & Callaghan, Salem.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

GOODWIN, Justice.

This is an action for false arrest. The plaintiff was arrested upon a warrant issued by the defendant Hardy, who was the city recorder of Independence. Hardy issued the warrant without a sworn complaint having been filed. All defendants except Hardy were granted a nonsuit. The jury awarded the plaintiff $7,500, and Hardy appeals.

Because under the city charter the city recorder [240 Or. 386] also serves as municipal judge, Hardy claimed a defense of judicial immunity. The trial court ruled that Hardy was not protected by judicial immunity because he had acted without authority. The court submitted only the issue of damages to the jury.

Although a number of collateral issues were urged at trial and on appeal, the most significant issue in this case is whether or not the doctrine of judicial immunity will protect a judicial officer who, without a sworn complaint charging the person with an offense, orders the arrest of such person.

The plaintiff concedes that the judge of a municipal court duly created by a city charter is clothed with immunity from personal liability while in the performance of his authorized judicial business. Immunity also protects the judge when he acts in a matter in which his jurisdiction is questionable. In Cottam v. Oregon City, 98

Page 93

F. 570 (C.C.D.Or.1899), immunity was said to apply unless a clear absence of jurisdiction is at once apparent to the ordinary understanding. A similar rule is discussed in 2 Harper and James, The Law of Torts, 1643, § 29.10 (1956).

The city of Independence has an ordinance, the validity of which is not before us, which provides that persons delinquent in the payment of sewer assessments will be subject to prosecution which may result in a fine or imprisonment. The plaintiff fell five months behind in his payments and, consequently, owed the city five dollars.

At the time that the plaintiff was arrested, Hardy was the custodian of the city's records showing the status of sewer assessments. As recorder, Hardy thus had personal knowledge of the plaintiff's delinquency.

On April 23, 1962, Hardy sent a demand letter to the plaintiff. The letter, a mimeographed form, advised[240 Or. 387] the plaintiff of his delinquency and of the penalty provisions of the ordinance. A month went by. The charges were not paid.

Purporting to act in his judicial capacity, but without a written complaint having been filed, Hardy issued a warrant for the plaintiff's arrest. The plaintiff was arrested.

The plaintiff brought this action on the theory that the issuance of a warrant of arrest without a sworn complaint being on file was an act wholly outside the jurisdiction of the municipal court. We need not consider whether or not immunity would shelter the acts of a judge who, within his jurisdiction, acted in violation of the due-process clause of the Fourteenth Amendment. (See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).) It is necessary only to decide whether the action of the recorder (municipal judge) in issuing the warrant in the instant case was an action wholly outside the jurisdiction of the court or an action within the colorable jurisdiction of the court. To answer these questions, we must look to the sources of the jurisdiction of the municipal judge.

Section 20 of the Charter of the City of Independence designates the city recorder as the ex officio municipal judge and provides:

'* * * The municipal judge shall have authority to issue process for the arrest of persons accused of an offense against the ordinances of the city * * *. When not governed by ordinance or this charter, all proceedings in the municipal court for the violation of a city ordinance shall be governed by the general laws of the state governing justices of the peace and justice courts.'

[240 Or. 388] In defining the general provisions and proceedings prior to judgment in Justices' Courts, the Oregon Revised Statutes include the following:

'Upon the filing of the complaint, the justice shall issue a warrant of arrest for the defendant named therein.' ORS 156.050.

ORS 133.040 provides as follows:

'When complaint is made to a magistrate of the commission of a crime, the magistrate shall examine the informant on oath, reduce his statement to writing, cause the same to be subscribed by him and take the depositions of any witnesses that he produces in support thereof.'

In the case of a search warrant, this court has held that the requirement of a sworn statement was jurisdictional. The issuance of a search warrant without an affidavit thus was not the erroneous performance...

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