Rosacker v. Multnomah County

• Citation: 43 Or.App. 583,603 P.2d 1216
• Decision Date: 10 December 1979
• Docket Number: No. A,A
• Parties: Donald ROSACKER, Appellant, v. MULTNOMAH COUNTY, Respondent. 7701-00032; CA 12577.
• Court: Oregon Court of Appeals

Page 1216

603 P.2d 1216

43 Or.App. 583

Donald ROSACKER, Appellant, v. MULTNOMAH COUNTY, Respondent.

No. A 7701-00032; CA 12577.

Court of Appeals of Oregon.

Argued and Submitted Sept. 21, 1979.

Decided Dec. 10, 1979.

Magar E. Magar, Portland, argued the cause and filed the briefs for appellant.

John D. Hoffman, Deputy County Counsel, Portland, argued the cause for respondent. With him on the brief was John B. Leahy, County Counsel, Portland.

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

BUTTLER, Judge.

Plaintiff appeals from a judgment entered against him after the trial court sustained defendant's demurrer to plaintiff's second cause of action, ¹ the only one involved in this appeal. In that cause of action, plaintiff alleged that on or about December 2, 1976, Sergeant Gatsky was employed by Multnomah County and was acting within the scope of his employment. He then alleged:

"On or about December 2, 1976, a hearing was held by Sergeant Gatsky at Rocky Butte Jail to determine whether or not plaintiff created a disturbance on November 29, 1977 (sic). At said hearing, defendant Gatsky, acting within the scope of his employment, wrongfully and unlawfully deprived plaintiff of the due process of the law * * * by not allowing plaintiff to call witnesses on his behalf * * *."

At trial, defendant county demurred on the ground that the second cause of action alleged a violation of 42 U.S.C. § 1983, ² under which municipalities may not be sued directly for the acts of their employees, relying on Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Defendant does not otherwise contend that it is immune under the Oregon Tort Claims Act (ORS 30.260-30.300) or that the complaint does not state a cause of action if the county may be sued.

Plaintiff contends that he may maintain this action under ORS 30.265, which provides:

"(1) Subject to the limitations of ORS 30.260 to 30.300, every public body is liable for its torts and those of its officers, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function. As used in ORS 30.260 to 30.300, 'tort' includes any violation of 42 U.S.C. section 1983."

He contends that by virtue of the last sentence of the subsection quoted above the legislature has provided that every public body is liable for its torts, including the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, and that a county is a "public body." ORS 30.260(2). In short, it is plaintiff's position that the Oregon legislature has provided that a county may be sued if it, or its officers, employees, and agents acting within the scope of their employment or duties, deprive a person of any rights, privileges or immunities secured by the Constitution of the United States.

Defendant, on the other hand, contends that where a plaintiff claims a deprivation of any rights, privileges or immunities secured by the Constitution of the United States, the only statute under which that claim is cognizable is 42 U.S.C. § 1983, and the claim is subject to the limitations on the right imposed by the federal courts. The United States Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1967), held that municipalities were not persons within the meaning of § 1983 and therefore could not be sued directly. That decision was modified by the Supreme Court in Monell v. Dept. of Social Services of City of New York, supra, to permit direct suit against municipalities if the alleged unconstitutional act was taken pursuant to official municipal policy.

In order to accept defendant's contention we must construe the last sentence of ORS 30.265(1) to mean that a person may maintain an action under 42 U.S.C. § 1983 in the state courts. To so construe that sentence, however, would result in the legislature's having done nothing because, as defendant points out, it is generally accepted that state courts have concurrent jurisdiction for the assertion of § 1983 claims. Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). It is presumed that the legislature did not perform a useless act; it intended to accomplish something by adding the sentence in question.

We construe the last sentence of ORS 30.265(1) to incorporate by reference the wrongful conduct set forth in § 1983 as constituting a tort by definition under the Oregon Tort Claims Act thereby providing a state-created right for those deprived of any rights, privileges or immunities...