Beason v. Harcleroad

• Decision Date: 23 January 1991
• Citation: 805 P.2d 700,105 Or.App. 376
• Parties: Goffrey BEASON, Appellant, v. F. Douglass HARCLEROAD; State of Oregon; David Nissman; Ed Hagen; and Darryl Larson, Respondents, and Lane County, a political subdivision of the State of Oregon, and Tom Yates, Defendants. 16-88-05084; CA A61042.
• Court: Oregon Court of Appeals

Page 700

805 P.2d 700

105 Or.App. 376

Goffrey BEASON, Appellant, v. F. Douglass HARCLEROAD; State of Oregon; David Nissman;

Ed Hagen; and Darryl Larson, Respondents,

and

Lane County, a political subdivision of the State of Oregon,

and Tom Yates, Defendants.

16-88-05084; CA A61042.

Court of Appeals of Oregon.

Argued and Submitted June 8, 1990.

Decided Jan. 23, 1991.

David C. Force, Eugene, argued the cause and filed the briefs, for appellant.

Jas. Adams, Asst. Atty. Gen., argued the cause, for respondents. With him on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ. DE MUNIZ, Judge.

Plaintiff appeals from a judgment in favor of defendants entered after the court granted their motion for judgment on the pleadings. We affirm in part, reverse in part and remand for further proceedings.

Defendants are the State of Oregon, Lane County District Attorney Harcleroad and Deputy District Attorneys Nissman, Hagen and Larson. ¹ The amended complaint contains claims for what plaintiff styles declaratory relief, malicious prosecution, infliction of severe emotional distress, false light invasion of privacy and violation of federal constitutional rights. Within some of these claims, there are multiple counts. Many of the allegations supporting the various claims are imprecise and ambiguous, but for purposes of discussion we have summarized them as best we can.

In May, 1987, Nissman was conducting a grand jury investigation about whether plaintiff had committed the crime of unauthorized use of a motor vehicle. During that investigation, Nissman discovered that plaintiff is a homosexual. Shortly thereafter, Nissman, either directly or with the assistance of one or more of the defendants, told representatives of the news media that plaintiff is a homosexual, has Acquired Immune Deficiency Syndrome (AIDS) and had "induced or compelled other individuals to engage with him in sexual intercourse or other sexual acts, without hygienic protection against infection of such persons and while concealing from such persons that he was suffering from or infected with AIDS." Other than the nature of plaintiff's sexual orientation, those statements were false.

Two months later, Hagen obtained a grand jury indictment charging plaintiff with recklessly endangering another. ORS 163.195(1). ² Shortly before plaintiff's arraignment in August, one or more defendants repeated the statements to the news media, informed them about the indictment and arranged for televised news coverage of the arraignment. The media gave the arraignment extensive coverage.

In January, 1988, Larson, without any advance notice to the media, obtained a dismissal of the charge against plaintiff. The defendant prosecutors did not have, and had not previously had, any admissible evidence to prove the allegations in the indictment. However, they continued to tell the news media that plaintiff is a homosexual, has AIDS and had endangered uninformed sexual partners. Larson told the media that the charge against plaintiff was dismissed because witnesses who had previously agreed to testify against him had later refused to do so.

Defendants filed an amended answer. The allegations are somewhat imprecise. However, a careful reading reveals that, to both the common law tort claims and the federal claims under 42 U.S.C. § 1983, defendants allege as affirmative defenses that they "are immune * * * by virtue of a prosecutorial immunity." To all claims, except those for declaratory relief and malicious prosecution, they allege that they are "immune by virtue of an absolute executive privilege as to any and all communication to the media." Other defenses, not relevant to this opinion, are also alleged.

In their motion for judgment on the pleadings, defendants characterize each of plaintiff's claims, other than the claim for declaratory relief, as "based upon his prosecution." The trial court denied the parties' requests for oral argument and resolved the motion in a brief order. Citing Watts v. Gerking, 111 Or. 641, 654, 228 P. 135 (1924), the court granted defendants' motion "in its entirety." Judgment was entered for all defendants on all claims.

The allowance of a defendant's motion under ORCP 21 B ³ is proper only when the allegations, taken together, affirmatively show that the plaintiff has no cause of action or that the defendant has a complete defense. Scott & Payne v. Potomac Ins. Co., 217 Or. 323, 330, 341 P.2d 1083 (1959). We must accept the allegations in the pleadings as true. Salem Sand v. City of Salem, 260 Or. 630, 636, 492 P.2d 271 (1971); Brown v. Insurance Company of North America, 93 Or.App. 355, 357, 762 P.2d 330 (1988), rev. den. 307 Or. 303, 767 P.2d 443 (1989).

In his first claim, plaintiff seeks a declaratory judgment that (1) the indictment for reckless endangerment was not subject to public inspection between July 28, 1987, and August 17, 1987; (2) between those dates, defendants had a duty not to disclose anything about the indictment, except to the extent necessary to achieve an arrest; (3) defendants breached their duties; (4) defendants acted outside the scope of their duties; and (5) defendants Harcleroad, Nissman, Hagen and Larson were executive officers subject to Executive Order EO-87-20. ⁴

"Declaratory judgment is preventive justice, designed to relieve parties of uncertainty by adjudicating their rights and duties before wrongs have actually been committed or damages suffered." LaMarche v. State of Oregon, 81 Or.App. 216, 220, 725 P.2d 378, rev. den. 302 Or. 299, 728 P.2d 531 (1986). (Emphasis supplied.) ⁵ Plaintiff is not seeking a declaration of a nature that lends itself to a final judgment in law, State Farm Fire and Cas. v. Reuter, 294 Or. 446, 449, 657 P.2d 1231 (1983), but rather is seeking a declaration of partial liability against the parties for past actions. That is not appropriate under ORS 28.010 to ORS 28.160. The court did not err in allowing defendants' motion for judgment on the pleadings on that claim, because the allegations affirmatively show that plaintiff is not entitled to declaratory relief. ⁶

Plaintiff's claim for malicious prosecution is more straightforwardly pled than are his other claims. In it, he alleges that "defendants * * * initiated and procured the prosecution of plaintiff for the crime of reckless endangerment, from the improper motive of malice and contempt for his homosexual activities and orientation, without probable cause to believe he had committed the said crime." That claim is based solely on defendants' decision to initiate a criminal proceeding against plaintiff. Defendants allege by way of affirmative defense that they are entitled to "prosecutorial immunity." Elsewhere in their answer, they admit that they are prosecutors. Prosecutors are immune from liability for civil damages on a malicious prosecution claim as a matter of state law. Watts v. Gerking, supra. The trial court did not err in allowing defendants' motion on the malicious prosecution claim, because, taken together, the allegations in the pleadings show that defendants have a complete defense.

Plaintiff's remaining claims blend allegations about the initiation of the criminal prosecution with allegations about defendants' statements to the media. The complaint may be read to involve three separate communications, the first of which began before plaintiff was formally charged with a crime and continued after the criminal charge was dismissed. However, the specific allegations that support the individual counts and claims for relief are unclear. In the section 1983 claims, plaintiff contends that defendants violated his rights to due process and equal protection under various theories. In the common law claims, plaintiff alleges that defendants placed him in a false light and intentionally inflicted emotional distress.

We first address the issue of whether the pleadings, standing alone, permitted the trial court to conclude that defendants are entitled to absolute immunity from civil damages in a section 1983 action under the principles announced in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). With respect to any action under section 1983, federal law controls both the substantive elements of the claim and all defenses based on immunity. Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 558 n. 8, 62 L.Ed.2d 481 (1980); Tennyson v. Children's Services Division, 308 Or. 80, 85, 775 P.2d 1365 (1989).

Two types of official immunity are recognized in claims under section 1983: qualified and absolute. Qualified immunity is the norm for state executive officials, such as prosecutors. It insulates defendants from liability for civil damages under section 1983 only if their conduct "does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). However, a defendant is entitled to absolute immunity from civil damages under section 1983, no matter how clear the federal right violated, for functions that are "integral parts of the judicial process." Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983). Consequently, judges engaging in judicial acts, Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967), police officers testifying at trials, Briscoe v. LaHue, supra, 460 U.S. at 345, 103 S.Ct. at 1120, and prosecutors initiating and litigating criminal prosecutions, Imbler v. Pachtman, supra, 424 U.S. at 431, 96 S.Ct. at 995, are entitled to absolute immunity.

Arguably, plaintiff's section 1983 claims seek to impose liability, not because defendants initiated criminal proceedings, but because they made one or more statements to the news media. Defendants allege, by way of affirmative defense,...