Higgins v. Redding

• Citation: 34 Or.App. 1029,580 P.2d 580
• Parties: Robert HIGGINS, Appellant, v. Robert W. REDDING, Respondent. Robert HIGGINS, Appellant, v. COUNTY OF MULTNOMAH and State of Oregon, Respondents.
• Decision Date: 20 June 1978
• Court: Court of Appeals of Oregon

Page 580

580 P.2d 580

34 Or.App. 1029

Robert HIGGINS, Appellant, v. Robert W. REDDING, Respondent.

Robert HIGGINS, Appellant, v. COUNTY OF MULTNOMAH and State of Oregon, Respondents.

Court of Appeals of Oregon.

Argued and Submitted May 19, 1978.

Decided June 20, 1978.

W. A. Franklin, Portland, argued the cause for appellant. With him on the brief was Harlan Bernstein, Portland.

Edward H. Warren, Portland, argued the cause for respondents State of Oregon and Redding. With him on the brief were Michael A. Lehner, Portland, and John D. Hoffman, III, Deputy County Counsel, Portland, for respondent Multnomah County.

Before SCHWAB, C. J., and JOHNSON and GILLETTE, JJ.

GILLETTE, Judge.

These are consolidated appeals from two judgments for defendants in false arrest cases. In case No. A7708-12265, the defendant was a Multnomah County District Court Judge. The trial court sustained defendant's demurrer and entered judgment after plaintiff declined to plead further. In case No. A7701-00713, defendants were the State of Oregon and Multnomah County, both of whom were granted summary judgments. ¹

The facts, taken from the pleadings and the affidavits of the parties, are as follows:

On October 26, 1975, plaintiff was issued a traffic citation for failing to leave his name and address at the scene of an accident. He failed to appear at the date initially set on his traffic citation, but appeared on a later date and entered a plea of guilty to the citation. The defendant district court judge placed defendant on one-year probation and, as a condition of probation, required that plaintiff serve six days in jail. After being twice amended, the judge's order required the six days to be served on December 29 and 30, 1975, January 5 and 6, 1976, and January 12 and 13, 1976.

On January 5, 1976, plaintiff, wishing to ask the judge to require two days of his sentence to be served on some other days than January 5 and 6, went to the judge's chambers to speak to him. The judge was on the bench, so the plaintiff spoke instead to the judge's secretary, Ms. Sharon Wright.

Ms. Wright advised the plaintiff that, inasmuch as he had requested two previous setovers of the dates on which he was to serve his sentence, it would be necessary for him to speak to the judge personally about the matter. When it became clear that it was not going to be possible for him to see the judge immediately, the plaintiff left and went to Multnomah County Correctional Institute (MCCI), where he served the two days. He arrived at MCCI two hours late.

Ms. Wright did not understand that the defendant was going to report to jail after all. ²

Upon leaving the bench, the district court judge was informed by his secretary that the plaintiff had been there a short time previously. Because the plaintiff should have been serving his sentence at the very time he was in the judge's chambers, the judge issued a warrant for his arrest.

In issuing the warrant for plaintiff's arrest for violation of the conditions of his probation, the district court judge did not place the secretary under oath.

Plaintiff was arrested pursuant to the warrant on Saturday, February 14, 1976. He appeared before the district court judge on February 17, 1976, at which time it became clear that he had, in fact, served the period of time imposed upon him as a condition of probation. The district court judge terminated his probation and directed that he be released. Plaintiff was released after being returned to Rocky Butte Jail to check out.

On these facts, the court correctly granted summary judgment as to defendant Multnomah County. All of the evidence establishes that the defendant Multnomah County accepted custody of the plaintiff pursuant to an arrest warrant valid on its face, and released the plaintiff as soon as directed to do so by the defendant district court judge. There was therefore no liability on the part of Multnomah County.

As to the remaining defendants, defendant State of Oregon cannot be liable if the defendant district court judge is immune from liability. ORS 30.265(2). The defendant district court judge can be liable only if his act in issuing the bench warrant for the arrest of the defendant for violation of the conditions of his probation was made outside his jurisdiction. The question thus becomes: Did the trial judge act outside his jurisdiction in issuing the warrant for the arrest of plaintiff?

Plaintiff relies on Utley v. City of Independence, 240 Or. 384, 402 P.2d 91 (1965), where it was held that a judge issuing an arrest warrant without having received a sworn complaint, acts as a private citizen and not as a judicial officer.

The Supreme Court said,

"We hold that, except for those cases covered by (the statute authorizing a trial judge to order the arrest of a person committing a crime within the judge's presence), when a judicial officer issues a warrant without a sworn complaint having been made, there is no judicial business properly before him, and he acts as a private citizen. The unauthorized action is not, therefore, merely the erroneous exercise of colorable judicial power, but it is the usurpation of judicial power, and is not protected by immunity." Id., at 390, 402 P.2d at 94.

The language is broad enough to cover the present case. We think the Utley case is distinguishable, however, in that it involved the issuance of an original warrant of arrest rather than the continuing supervision of a...