Scott v. Jackson County

• Decision Date: 27 July 2011
• Docket Number: 091455E2; A144157.
• Citation: 244 Or.App. 484,260 P.3d 744
• Parties: Diane L. SCOTT, Plaintiff–Appellant,v.JACKSON COUNTY, Defendant–Respondent.
• Court: Oregon Court of Appeals

244 Or.App. 484

260 P.3d 744

Diane L. SCOTT, Plaintiff–Appellant,

v.JACKSON COUNTY, Defendant–Respondent.

091455E2; A144157.

Court of Appeals of Oregon.

Argued and Submitted Dec. 2, 2010.Decided July 27, 2011.

G. Jefferson Campbell, Jr., Medford, argued the cause for appellant. With him on the briefs was G. Jefferson Campbell, Jr., P.C.Michael Jewett argued the cause and filed the brief for respondent.Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Senior Judge.WOLLHEIM, J.

Plaintiff conducted a rabbit breeding operation on property located in Jackson County. In 2001, plaintiff pleaded no contest to animal abuse, and, in conjunction with the criminal proceedings, the county seized her rabbits. The county housed, treated, and fed the rabbits before declaring them abandoned, at which point the county gave them away. In 2003, plaintiff filed an action against the county in federal court, alleging civil rights violations and common-law tort claims. After the Ninth Circuit affirmed summary judgment as to some of plaintiff's claims, she filed a complaint in state court based on the same factual allegations. The trial court granted the county's motion for summary judgment based on issue preclusion, and plaintiff now appeals that judgment. We reverse and remand.

This much is undisputed. In May 2001, animal control officers investigated a complaint about the condition of plaintiff's rabbits. The officers discovered and seized four dead rabbits, and plaintiff was charged with animal neglect. In August 2001, county officials executed a search warrant on plaintiff's property and seized approximately 300 rabbits; they left some 300 additional rabbits on the property. Plaintiff subsequently pleaded no contest to one count of animal neglect, and she was sentenced to probation. The sentence, however, also prohibited plaintiff from possessing animals and ordered that she forfeit her remaining rabbits.

The county seized the remaining rabbits immediately after plaintiff's sentence was pronounced. Two weeks later, the sentencing judge reconsidered the conditions of her order. The judge deleted the forfeiture provision but left in place the condition that plaintiff not possess any animals. Plaintiff thereafter sought the return of the rabbits that were in the county's custody, but the county refused to return them (ostensibly because plaintiff still could not herself possess them). Instead, the county cared for and treated the rabbits, declared them abandoned under county law, and gave away those that had survived.

On July 22, 2003, plaintiff filed an action in federal court, the specifics of which will be discussed later. In short, plaintiff alleged that the county had unlawfully entered her property, unlawfully seized her rabbits and other property, and had then killed, lost, failed to properly treat and care for, or given away the seized rabbits. Her claims ranged from civil rights violations (taking of property; denial of substantive due process; illegal search and seizure) to state common-law claims of trespass to land, trespass to chattels, and conversion. The district court granted the county's motion for summary judgment on all claims.

Plaintiff appealed that judgment. The Ninth Circuit affirmed with respect to plaintiff's federal claims but reversed in part the district court's ruling regarding the state law tort claims. Scott v. Jackson County, 297 Fed.Appx. 623 (9th Cir.2008). The case was remanded and, on remand, plaintiff moved to dismiss her complaint, asking the court to decline to exercise supplemental jurisdiction over her remaining state law tort claims. The court granted the motion and dismissed those common-law claims without prejudice.

Plaintiff then filed this action in Jackson County Circuit Court in April 2009. Her complaint, the first 101 paragraphs of which are taken verbatim from her federal complaint, re-alleged her tort claims: trespass to land, trespass to chattels, and conversion. At the same time, plaintiff moved for a change of venue to Klamath County, on the ground that she could not get a fair trial in Jackson County due to the coverage that her case had received in the press.

Four days after the complaint and change of venue motion were filed, plaintiff's attorney of record, G. Jefferson Campbell, Jr., began serving a 60–day suspension from the practice of law.¹ During that suspension period, plaintiff filed a reply to the county's response to the motion to change venue. The reply was signed by William S. Dames, as an attorney for G. Jefferson Campbell, Jr., P.C.

With the venue motion still pending, the county filed a motion for summary judgment. In that motion, the county argued that all three of plaintiff's claims were barred by issue or claim preclusion, because the same claims and underlying facts had been previously litigated in plaintiff's federal case. In support of the motion, the county, through a declaration from its counsel, offered copies of the district court opinion granting summary judgment and the Ninth Circuit's memorandum disposition. The county's counsel further averred that he had reviewed plaintiff's complaints in both federal and state court and that “[h]er federal complaint contained 105 paragraphs of preliminary factual allegations,” all but four of which were included in her state complaint as a “verbatim repetition of the federal allegations.”

The following day, the trial judge assigned to the case, Judge Arnold, denied plaintiff's venue motion. In his order, Judge Arnold stated that “[n]one of [plaintiff's] reasons constitutes justification for granting the motion.” He then went on to explain that he had not considered plaintiff's reply brief on the motion because he believed that, notwithstanding Dames's signature on the brief, Campbell had actually written it during his suspension and was thereby engaged in the unauthorized practice of law. Judge Arnold simultaneously sent a letter to the Oregon State Bar detailing his suspicion that Campbell was engaged in the unauthorized practice of law. (The Bar later investigated the accusation and found insufficient evidence that Campbell—as opposed to his paralegal—had drafted the brief for Dames's review.)

Two months after the venue motion was denied, on the morning of July 13, 2009—the day scheduled for a hearing before Judge Arnold on the county's summary judgment motion—plaintiff filed a motion to disqualify the judge and to have the case reassigned to another judge.² Later that day, Judge Arnold commenced the summary judgment hearing by stating, “A motion was filed today to disqualify me. That motion is denied.” The parties then argued their respective positions on summary judgment; nothing more was said of the motion to disqualify. The court ultimately granted defendant's motion for summary judgment, explaining:

“It is for this Court to determine whether or not issues remain in this case to be decided after the 9th Circuit's order.

“Defendant's motion for summary judgment analyzes on a claim by claim basis how the opinion of the 9th Circuit, in affirming parts of the District Court's opinion has decided the issues presented in plaintiff's 56 page, 120 paragraph complaint.

“In attempting to argue against the motion for summary judgment, plaintiff does not point to any of her 120 paragraphs of allegations which have not been decided. Rather, she paints with a broad brush that something remains. This Court has reviewed the entire complaint for undecided issues and has found none.

“The Court finds that the motion for summary judgment is well taken, that all of the issues raised in plaintiff's complaint have been decided adversely to plaintiff and grants the motion. * * * ”

The court entered judgment accordingly, and plaintiff now appeals.

Plaintiff advances two assignments of error. In her first assignment, she contends that her state common-law claims survived the federal court action and that the court therefore erred in granting summary judgment. In her second assignment, she contends that Judge Arnold erred in ruling on a motion to disqualify when he was the very subject of the motion. We address her assignments in that order.

As previously set out, the trial court granted the county's motion for summary judgment on the ground that “all of the issues raised in plaintiff's complaint have been decided adversely to plaintiff” in an earlier federal action. It is therefore necessary to discuss the pleadings and procedural history of that earlier action in some detail. Plaintiff's federal complaint alleged five separate claims for relief against the county and its actors, four of which are relevant here.³ Her first claim was brought under 42 USC section 1983 for “money damages to redress the deprivation by the Defendants of the civil rights secured to the Plaintiff.” Among those alleged civil rights violations were deprivations of her rights to due process, to be free of unreasonable searches and seizures, and to not have her property taken without just compensation.

Plaintiff's second claim for relief was for “trespass to real property” and was based on the theory that, “[b]etween May 8, 2001 and August 1, 2001, the Defendants, as alleged, made continual and repeated entries onto Plaintiff's property without the Plaintiff's consent or knowledge, and without any search warrant or other legal justification or excuse.” Her third claim was for trespass to chattels. She alleged that she was the owner of rabbits, other animals, and various other items of personal property that were seized or harmed by the county. She further alleged that

“[d]efendants, by and through the acts alleged, intentionally interfered with the Plaintiff's right to possession of her personal property and chattel by entering onto the Plaintiff's property and seizing the same, as alleged, all without Plaintiff's consent and without any lawful authority and excuse, and thereby committed a trespass as to such...