Doe v. Medford School Dist. 549C

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Landau
• Citation: Doe v. Medford School Dist. 549C, 221 P.3d 787, 232 Or. App. 38 (Or. App. 2009)
• Decision Date: 18 November 2009
• Docket Number: 073765E2.,A137804.
• Parties: Jane DOE, Plaintiff-Appellant, v. MEDFORD SCHOOL DISTRICT 549C, Defendant-Respondent.

221 P.3d 787

232 Or. App. 38

Jane DOE, Plaintiff-Appellant, v. MEDFORD SCHOOL DISTRICT 549C, Defendant-Respondent.

073765E2.

A137804.

Court of Appeals of Oregon.

Argued and Submitted April 13, 2009.

Decided November 18, 2009.

James E. Leuenberger, Lake Oswego, argued the cause and filed the briefs for appellant. Timothy C. Gerking, Medford, argued the cause for respondent. With him on the brief were Thaddeus G. Pauck and Brophy Mills Schmor Gerking Brophy & Paradis, LLP.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief amicus curiae for State of Oregon.

Rebekah R. Cook filed the brief amicus curiae for Oregon School Boards Association.

Bruce L. Campbell, Jeffrey G. Condit, Portland, Michael Porter, and Miller Nash LLP filed the brief amicus curiae for Portland Public School District No. 1J and Portland Community College District.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

Medford School District 549C adopted a policy that prohibits its employees from possessing firearms on school district property or at school-sponsored events. Plaintiff, a school district employee who wishes to carry a handgun while teaching, initiated this declaratory judgment action challenging the lawfulness of that policy. The scope of that challenge is a narrow one: Plaintiff contends that the school district's policy violates a statute, ORS 166.170, which she contends legislatively preempts the school district from regulating firearms in any manner. She sought a declaration in the circuit court to that effect. ORS 28.010-28.160. The school district moved to dismiss plaintiff's complaint for failure to state a claim. The trial court granted the motion, concluding that ORS 166.170 does not preempt the school district from adopting its policy. The court entered judgment dismissing plaintiff's complaint.

Plaintiff appeals, arguing that the trial court erred in concluding that ORS 166.170 does not have the effect of preempting the school district's policy prohibiting an employee's possession of firearms on school district property or at school-sponsored events. We conclude that the trial court did not err in reaching that conclusion. We also conclude, however, that the proper disposition of the case is not the dismissal of the complaint but, rather, the issuance of a judgment declaring the effect of ORS 166.170. We therefore vacate the judgment and remand for entry of such a judgment.

I. FACTS

In 2005, the school district adopted the following policy concerning the possession of firearms:

"Employees, district contractors and/or their employees and district volunteers shall not possess a dangerous or deadly weapon or firearm on district property or at school-sponsored events. This prohibition includes those who may otherwise be permitted by law to carry such weapons.

"* * * * * "Employees in violation of this policy will be subject to discipline up to and including dismissal. Individuals contracting with the district and volunteers will be subject to appropriate sanctions. A referral to law enforcement may be made."

By its terms, the policy relates only to employees, contractors, and volunteers; it is undisputed that the policy does not relate to third parties who come onto school property.

Plaintiff is employed by the school district as a teacher. She is also licensed to carry a concealed handgun. Because she fears a violent confrontation with her former husband, she wants to carry her handgun with her at all times, including while she is at school teaching.

In 2007, the school district learned that petitioner possessed a license to carry a concealed handgun and that she wished to bring the weapon with her to school. The school district's human resources department informed plaintiff of its no-weapons policy and warned her of the consequences of violating that policy. Plaintiff agreed to follow the policy while it remained in force.

Plaintiff then initiated this declaratory judgment action, seeking a declaration from the court that the school district's policy is void under ORS 166.170, which provides:

"(1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

"(2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void."

In her complaint, petitioner cited only ORS 166.170(2) and omitted any reference to ORS 166.170(1). She alleged that because the school district's policy "regulates" her possession of a firearm, the policy violates the statute and is void.¹

The school district moved to dismiss the action for failure to state a claim for relief pursuant to ORCP 21 A(8), asserting that the statute does not preempt reasonable employee-related policies such as the one at issue in this case. In response to the school district's motion, plaintiff asserted that the school district's policy was preempted by ORS 166.170(2), but also noted that ORS 166.170(1) serves as important context to understanding that provision because it vests sole authority in the legislature to "regulate in any matter whatsoever" relating to firearms. In addition, she asserted that ORS 166.170(1), "standing alone," should be read to preempt the school district's policy in this case.

The school district responded that its policy is merely a valid employment policy pertaining to the use of its own property by its own employees. According to the school district, ORS 166.170 limits the authority of "districts," which it contended refers not to school districts but to a specific municipal government entity, "special districts." Aside from that, the school district argued, the statute applies only to "ordinances," a specific form of municipal legislation. In this case, the school district contended, its policy is not a form of municipal legislation; rather, it is merely an employment policy that applies only to school district employees.

The trial court concluded that the policy was not preempted and granted the school district's motion to dismiss. The court first concluded that ORS 166.170(1) does not have separate and independently enforceable effect. Rather, the court concluded, that subsection states the general policy of the legislature, which ORS 166.170(2) then implements. As for the application of ORS 166.170(2), the court explained that, even assuming for the sake of argument that the school district is a "district" within the meaning of that subsection, the school district's policy simply is not a prohibited "ordinance" regulating, restricting, or prohibiting the possession of firearms. According to the court, from the text of the statute and its legislative history, it is clear that the legislature's focus in enacting ORS 166.170 was "to have uniform laws throughout the state," not to regulate employment practices. The court then entered a judgment of dismissal.

On appeal, plaintiff contends that the school district's policy violates both ORS 166.170(1) and ORS 166.170(2). In her view, the statutory text is clear evidence of the legislature's intent to preempt any restriction of her possession of a firearm, even if that restriction is contained in an employer's internal workplace policy.

The school district responds, as an initial matter, that plaintiff did not preserve her claim that the policy is preempted by ORS 166.170(1) because she cited only ORS 166.170(2) in her complaint. On the merits, the school district advances several arguments. First, it argues that ORS 166.170 preempts only "regulations"—that is, enactments that have "the force of law," such as "ordinances." Because the school district's policy applies only to employees and does not have the force of law, the school district asserts, it is neither a "regulation" nor an "ordinance" and, thus, is not preempted by ORS 166.170. In any event, the school district contends, even if its policy is an "ordinance," it is not preempted because ORS 166.170 preempts only ordinances enacted by "districts" and the school district is not a "district" as the legislature used that term in the statute.

In support of its conclusion, the school district cites a decision of the Washington Supreme Court, Cherry v. Municipality of Metro. Seattle, 116 Wash.2d 794, 808 P.2d 746 (1991), regarding that state's similarly worded statute.² In that case, the court rejected a similar argument to the one that plaintiff advances in this case, concluding that Washington's preemption statute "is intended to preempt regulatory city, town or county firearms laws and ordinances, but does not address internal employment rules limiting on-duty possession of firearms by public employees in the workplace." Id. at 798, 808 P.2d at 748. Further, the court held that, in enacting the preemption statute, Washington's legislature

"sought to eliminate a multiplicity of local laws relating to firearms and to advance uniformity in criminal firearms regulation. The Legislature did not intend to interfere with public employers in establishing workplace rules. The `laws and ordinances' preempted are laws of application to the general public, not internal rules for employee conduct."

Id. at 801, 808 P.2d at 749 (emphasis added). The school district urges us to adopt the same reasoning in this case.

Several amici curiae have appeared in...