Fay v. City of Portland

• Decision Date: 17 January 1991
• Citation: 804 P.2d 1155,311 Or. 68
• Parties: Jennifer FAY and Ginevra Fay-Babb, by Robert Babb, her Guardian Ad Litem, Petitioners on Review, v. CITY OF PORTLAND, a municipal corporation; and Anthony Lee Hough, Defendants (below), and The County of Multnomah, a political subdivision, Respondent on Review. TC A8711-06906; CA A50271; SC S36751.
• Court: Oregon Supreme Court

Page 1155

804 P.2d 1155

311 Or. 68

Jennifer FAY and Ginevra Fay-Babb, by Robert Babb, her Guardian Ad Litem, Petitioners on Review, v. CITY OF PORTLAND, a municipal corporation; and Anthony Lee

Hough, Defendants (below),

and

The County of Multnomah, a political subdivision, Respondent

on Review.

TC A8711-06906; CA A50271; SC S36751.

Supreme Court of Oregon.

Argued and Submitted April 12, 1990.

Reassigned May 7, 1990.

Decided Jan. 17, 1991.

Cynthia Cumfer, Portland, argued the cause and filed the petition for petitioner on review.

J. Michael Doyle, Asst. County Counsel for Multnomah County, Portland, argued the cause for respondent on review. With him on the response to the petition was Laurence Kressell, County Counsel for Multnomah County, Portland.

Before PETERSON, C.J., and CARSON, JONES, ^* GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

UNIS, Justice.

At issue in this case is whether plaintiffs' claims for personal injury against defendant Multnomah County (county) are barred by absolute judicial immunity. The trial court granted summary judgment for the county ¹ on plaintiffs' first and third claims for relief and directed entry of a judgment pursuant to ORCP 67 B. ² The Court of Appeals determined that the county was immune from liability and affirmed the judgment of the trial court. Fay v. City of Portland, 99 Or.App. 396, 782 P.2d 182 (1989). We hold that plaintiffs' claims are not barred by absolute judicial immunity and, therefore, reverse.

We review the record in the light most favorable to the party opposing the motion for summary judgment, in this case plaintiffs. Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). Plaintiffs Ginevra Fay-Babb and her mother, Jennifer Fay, were assaulted by defendant Hough six days after Hough had been released from the psychiatric unit of the Multnomah County Detention Center (MCDC). At the time of Hough's release, the county was under a federal court order to limit population at MCDC to relieve jail overcrowding. The court order provided for a release-matrix system that ranked each prisoner's order of release according to the severity of the crime with which the prisoner was charged. The court order also allowed the sheriff to alter the order of release based upon other specified criteria, such as the inmate's propensity for violence, the history of arrest or convictions, and his institutional classification at MCDC (i.e., the inmate's custody status). The federal court order required court approval before the criteria could be amended.

At the time of the assault, a special order complying with the court order and promulgated by the Multnomah County sheriff was in effect. The sheriff's special order required corrections officials at MCDC to score each inmate based upon the inmate's highest ranking charge, any companion charges, any holding charge modifiers, ³ the inmate's custody status, the inmate's behavior and criminal history. Those inmates with the lowest release-matrix scores were to be released before prisoners with higher scores.

Defendant Hough was given a release-matrix score of 50. That score, however, did not reflect Hough's institutional classification, i.e., that he was being housed in the psychiatric unit. Under the sheriff's special order, Hough's custodial status in that unit should have added another 20 points to his score. Additionally, Hough was released before at least six other inmates were released who had release-matrix scores of less than 50. Had the criteria set forth in the court order, as implemented by the sheriff's special order, been followed, Hough would not have been released.

The trial court granted summary judgment in favor of the county, ruling that the county was absolutely immune from plaintiffs' claims. The Court of Appeals, in an in banc decision, affirmed. Fay v. City of Portland, supra. A majority of that court held:

"Calculation of Hough's matrix score and authorization of his release were parts of the performance of a judicial function, because only judges are authorized to make release decisions and because the employes who actually released him were acting under the authority of the federal matrix release order. * * * In performing a judicial function, just as in performing any function, the actor can make a mistake or can be simply, simple-mindedly or even stupidly wrong. The function is still judicial."

99 Or.App. at 399, 782 P.2d 182. Having determined that the county's actions in releasing Hough were judicial in nature, the Court of Appeals concluded that the county was entitled to immunity.

Plaintiffs' complaint alleges that the county was negligent "in releasing Defendant Hough in that Defendant Multnomah County failed to correctly apply the rules and procedures of its release-matrix system." Specifically, plaintiffs allege that the county was negligent in two respects: first, because it failed to add points to Hough's release-matrix score for being housed in the psychiatric unit and, second, because it did not release inmates with scores lower than Hough's score before it released Hough.

Plaintiffs assert that the county cannot claim absolute immunity against these allegations because its decision to release Hough violated the court order and thereby exceeded the judicial authority given to it by the federal court to release prisoners.

Defendant county responds that it is entitled to absolute immunity from liability arising from the selection of inmates for release. The county argues that immunity is available to "public officials associated with judicial process" who "perform judicial functions." The county asserts that its corrections officials were performing a judicial function when they decided to release Hough and thus it is protected from liability "regardless of whether there [was] a mistake in the execution of the judge's order or the rules and procedures of the corrections division."

This court last discussed judicial immunity ⁴ in Praggastis v. Clackamas County, 305 Or. 419, 752 P.2d 302 (1988). Praggastis sued Clackamas County, claiming damages for the failure of a court clerk to docket a decree of dissolution as a judgment. The clerk did not docket the decree as a judgment because she had been instructed by the presiding judge to docket only documents which specifically contained language identifying the document as a judgment, and the decree did not qualify as such. We concluded that the clerk's actions were protected from liability by absolute judicial immunity. That decision was based on our determination that the presiding judge's decision as to what constituted a docketable judgment, even though wrong, was cloaked with immunity. The court held that in adhering to the court's directive not to docket certain documents, the clerk also was entitled to immunity.

The Court of Appeals and the county oversimplify this court's holding in Praggastis when they assert that whether absolute judicial immunity is recognized depends on the nature of the function being performed. Although there is language in Praggastis to that effect, its actual holding is that a court clerk who follows the direction of the court in carrying out an authorized judicial function will be immune from liability. Id. at 428-29, 432, 752 P.2d 302. ⁵ Compare Charco, Inc. v. Cohn, 242 Or. 566, 411 P.2d 264 (1966) (party injured by the negligence of a county clerk in failing timely to file an order was entitled to recover against the clerk).

For a public official or employee to have absolute immunity for acts performed under a court order or directive, two criteria must be established. First, the court order or directive must be a permissible exercise of judicial authority. ⁶ Second, the acts must comply with the court order or directive. If the only source of absolute judicial immunity is the court's directions, and these directions do not authorize the public official's or employee's conduct, then the official or employee is not protected from liability by absolute judicial immunity. ⁷

There is no contention that the federal court order constitutes an impermissible exercise of judicial authority. We must, therefore, consider whether the acts of the county corrections officials comply with that court order. We hold that the corrections officials exceeded the authority granted to them by the court order in two respects. First, in choosing to release Hough before inmates with lower matrix scores, corrections officials directly disregarded the court's directive to release those inmates with the lowest matrix scores before releasing prisoners with higher scores. Second, in disregarding Hough's institutional classification at MCDC, corrections officials failed to add points to Hough's release-matrix score on the basis of his being housed in the psychiatric unit. The court order gave discretion to the sheriff to consider the inmate's institutional classification when computing an inmate's release-matix score. The sheriff exercised that discretion and, as previously stated, directed corrections officials, through a special order, to determine each inmate's release-matrix score based in part on the inmate's housing status. The corrections officials had no authority to disregard the inmate's institutional classification. The county's corrections officials, therefore, were not authorized by the court order to release Hough without using the criteria approved by the federal court. The county's claim for absolute judicial immunity from liability must, therefore, fail.

We conclude that it was not proper for the trial court to grant summary judgment based on absolute judicial immunity. The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.

PETERSON, Chief Justice, specially concurring.

This is a negligence action for damages allegedly sustained by the plaintiffs following the release...