Donovan v. Barnes

• Decision Date: 22 April 1976
• Citation: 548 P.2d 980,274 Or. 701
• Parties: Thomas P. DONOVAN, Appellant, v. Stephen F. BARNES, Respondent.
• Court: Oregon Supreme Court

Page 980

548 P.2d 980

274 Or. 701

Thomas P. DONOVAN, Appellant, v. Stephen F. BARNES, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 5, 1976.

Decided April 22, 1976.

Ellen F. Rosenblum, Eugene, argued the cause for appellant. On the briefs were David L. Jensen, and Hammons, Phillips & Jensen, Eugene.

Robert E. Franz, Jr., Eugene, argued the cause for respondent. On the brief were William G. Wheatley, and Jaqua & Wheatley, Eugene.

HOWELL, Justice.

This is an action for malicious prosecution arising out of a disciplinary proceeding at the University of Oregon which was instigated by the defendant against the plaintiff. The trial court sustained a demurrer to plaintiff's complaint, and plaintiff appeals.

Plaintiff's complaint alleges that the defendant wrongfully filed an official charge sheet with the University of Oregon Student Court accusing plaintiff of several violations of the Code of Student Conduct. The violations charged were (a) obstruction of university functions, (b) malicious destruction of university property and (c) disorderly conduct. The complaint alleges that these charges were made maliciously and without probable cause and that defendant was aware that the charges were false. The complaint further alleges that, at the trial held on these charges before the Student Court, plaintiff faced the possible sanction of expulsion from the university. However, at the trial, the prosecutor moved for a judgment of acquittal, and a judgment for plaintiff was entered on that basis. Finally, the complaint alleges that, as a result of defendant's instigation of these proceedings, plaintiff suffered humiliation, anguish, mental distress and damage to his reputation and was forced to drop a class in order to prepare his defense. Plaintiff sought judgment for compensatory and punitive damages.

The only issue on appeal is whether plaintiff's allegations are sufficient to state a cause of action against the defendant for malicious prosecution.

Plaintiff contends that student disciplinary proceedings at the University of Oregon should be considered to be quasi-criminal in nature and, therefore, not subject to the 'special injury' requirement that normally attaches in actions for malicious prosecution based on civil proceedings. ¹ Defendant argues that, for reasons of public policy, actions for malicious prosecution should not be allowed in connection with student disciplinary proceedings, and that, if such actions are to be permitted, the 'special injury' restriction should be held applicable.

We do not agree with defendant's contention that malicious prosecution actions should never be allowed to be based upon the malicious prosecution of a student disciplinary proceeding. In the absence of any official duty to instigate or prosecute such an action, there would appear to be no basis for the application of an absolute privilege. Moreover, we doubt that the public interest in disciplining university students merits greater protection than the public's interest in bringing criminals to justice. Since there is no absolute privilege to initiate criminal proceedings, we would be hard pressed to justify a special rule extending an absolute privilege to instigate disciplinary proceedings.

Similarly, we find no basis for applying any different standards to this action merely because it is based on an adjudicatory proceeding before an administrative body rather than a proceeding before a judicial tribunal. ² We see no reason to apply a different set of rules to actions for malicious prosecution based on administrative proceedings of an adjudicatory nature than those which are applied to similar actions based on judicial proceedings. Since the adjudicatory function performed is essentially the same, we believe that the same criteria should be applied to the actions of both types of bodies. As was stated by one of the earlier courts to consider this question:

'* * * Much of the jurisdiction formerly residing in the courts has been transferred to administrative tribunals, and much new jurisdiction involving private rights and penal consequences has been vested in them. In a broad sense their creation involves the emergence of a new system of courts, not less significant than the evolution of chancery. The same harmful consequences may flow from the groundless and malicious institution of proceedings in them as does from judicial proceedings similarly begun. When one's livelihood depends upon a public license, it makes little difference to him whether it is taken away by a court or by an administrative body or official. Nor should his right to redress the injury depend upon the technical form of the proceeding by which it is inflicted. The administrative process is also a legal process, and its abuse in the same way with the same injury should receive the same penalty.

'* * *

'In our judgment no other conclusion would be tenable. When private as well as public rights more and more are coming to be determined by administrative proceedings, it would be anomalous to have one rule for them and another for the courts in respect to redress for abuse of their powers and processes.' Melvin v. Pence, 76 U.S.App.D.C. 154, 130 F.2d 423, 426--27 (1942).

See also Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494 (1957); Kauffman v. A. H. Robbins Co., 223 Tenn. 515, 448 S.W.2d 400 (1969); Annot., 143 A.L.R. 157 (1943); Restatement of Torts § 680 (1938).

We conclude that an action for malicious prosecution may be based upon the initiation or instigation of an administrative proceeding of a judicial nature and that the rules and standards that govern actions based upon civil proceedings should also apply to actions based upon administrative proceedings. ³

The most recent pronouncement of the rule applied to actions for the malicious prosecution of civil proceedings in Oregon is found in Buck v. Gale, 271 Or. 90, 530 P.2d 1248 (1975), which quotes the following language from an earlier case, Balsiger v. American Steel, 254 Or. 204, 206, 451 P.2d 868, 458 P.2d 932, 40 A.L.R.3d 289 (1969):

"The general rule, followed in most states, is that a civil action, although commenced with malice and without probable cause, does not give rise to a cause of action for malicious prosecution unless there has been arrest of the person, seizure of property, or other Special injury to the defendant in that action which would not ordinarily result in all similar causes seeking recovery of damages. Carnation Lbr. Co. v. McKenney et al, 224 Or. 541, 356 P.2d 932 (1960); Mitchell v. Silver Lake Lodge, 29 Or. 294, 45 P. 798 (1896). * * *." 530 P.2d at 1249.

An exception to the requirement that some 'special injury' be pleaded and proved has been made in a limited number of situations thought to involve an 'inherent' interference with person or property. In Oregon, this exception has been recognized in insanity proceedings. Hill v. Carlstrom, 216 Or. 300, 338 P.2d 645 (1959); in involuntary bankruptcy proceedings, Balsiger v. American Steel, supra; and in attachment cases, Alvarez v. Retail Credit Ass'n, 234 Or. 255, 381 P.2d 499 (1963). Other jurisdictions have recognized this exception in other similar situations. See, e.g., Lueptow v. Schraeder, 226 Wis. 437, 277 N.W. 124 (1938) (juvenile delinquency); Chappelle v. Gross, 26 A.D.2d 340, 274 N.Y.S.2d 555 (1966) (lis pendens filed). See also, Prosser, Law of Torts 851--52, § 120 (4th ed. 1971).

Plaintiff would have us recognize this exception in cases involving student disciplinary proceedings before the University of Oregon Student Court. Plaintiff contends that these proceedings, like insanity and juvenile delinquency proceedings, are 'quasi-criminal' in nature and therefore that they involve an 'inherent' interference with personal liberty. He argues that the offenses with which he was charged are criminal in nature, that the procedures followed by the Student Court closely parallel those applicable to criminal actions, and that the sanctions which could have been imposed are penal in character.

An examination of the Code of Student Conduct lends some credence to plaintiff's claims. As a result of defendant's actions, plaintiff was charged with three offenses under the Code: (a) malicious destruction of university property, (b) obstruction of university functions and (c) disorderly conduct. Two of these offenses are also crimes under state law. ⁴ Had plaintiff been found guilty of these offenses by the Student Court, he would have been subject to a possibility of expulsion, suspension or disciplinary probation by the university. Other possible sanctions included restitution of damaged property or money and the rendition of labor or services. ⁵

Similarly, the procedural aspects of the Student Court do seem to closely parallel criminal procedures in the courts. The Code provides that the defendant shall be apprised in writing of the charges and evidence against him, of the referral of his case to the Student Court and of his rights under the Code. At his hearing, the defendant may appear personally or through counsel and, at his request, he may have a law student appointed to defend him. He must plead either 'guilty' or 'not guilty.'

If the defendant pleads 'not guilty,' both the Student Prosecutor and the defendant or his counsel may make opening statements. Next, the Student Prosecutor will present his evidence and call his witnesses. The defendant has the right to confront and cross-examine these witnesses. The defendant may then present evidence on his own behalf. The Code also provides for objections and motions and for an opportunity to make closing arguments by both the prosecution and the defense. If the defendant is found guilty he may offer additional evidence and arguments pertinent to sanctioning. A written copy of the decision must be given to the student, and he must be advised in writing of his right to appeal to the University Appeals Board.

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