Smith v. Washington County
| Citation | 180 Or. App. 505,43 P.3d 1171 |
| Parties | John E. SMITH; Robin Sherwin; Timothy M. Bowman; Marsha Cordon; Anthony W. Furniss; Marvin J. Garland; David N. Hobson, Jr.; Carol Jones; John D. Peterson; and Andrew M. Rich, Appellants, v. WASHINGTON COUNTY; Olympic Security Services, Inc., a Washington corporation; and The Hon. Gayle A. Nachtigal, Respondents. |
| Decision Date | 10 April 2002 |
| Court | Court of Appeals of Oregon |
Andrew M. Rich, Hillsboro, argued the cause and filed the briefs for appellants.
William G. Blair, Senior Assistant County Counsel, argued the cause for respondents Washington County and Olympic Security Services, Inc. With him on the brief was Dan R. Olsen, County Counsel.
Jas. J. Adams, Assistant Attorney General, argued the cause for respondent The Hon. Gayle A. Nachtigal. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before LINDER, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.
Plaintiffs brought this action seeking a declaration that certain security procedures implemented as a condition of entry into the Washington County court facilities, together with the order of the presiding judge authorizing those procedures, violate Article I, section 9, of the Oregon Constitution. The trial court granted defendants' motion for judgment on the pleadings pursuant to ORCP 21 B, concluding that, under the allegations of the complaint, the challenged procedures are constitutional. Plaintiffs appeal from the resulting judgment, primarily challenging the grant of defendants' motion for judgment on the pleadings. We conclude that, based on the allegations of the complaint, the security searches are constitutional. We therefore affirm.
We review the trial court's disposition of the motion for judgment on the pleadings to determine whether the "allegations in the pleadings affirmatively show that plaintiffs cannot prevail as a matter of law." Withers v. State of Oregon, 133 Or.App. 377, 382, 891 P.2d 675, rev. den. 321 Or. 284, 896 P.2d 1213 (1995). In that regard, we accept the following well-pleaded allegations of fact in plaintiffs' complaint as true. Slogowski v. Lyness, 324 Or. 436, 439, 927 P.2d 587 (1996).
Plaintiffs are citizens of the State of Oregon who, from time to time, enter the courthouse and Justice Services Building located in Hillsboro, Oregon, for a variety of reasons, including to transact business. Defendants are Washington County (the county), a municipal corporation and county government in the State of Oregon; Olympic Security Services, Inc. (Olympic), a Washington corporation; and the Honorable Gayle Nachtigal (Judge Nachtigal), the "Presiding Judge of the Circuit Court of the State of Oregon for Washington County."1
Plaintiffs' complaint sets forth two claims. In the first, the key allegations are these: Pursuant to a contract between the county and Olympic, security searches for weapons and contraband are conducted of all people who enter the courthouse complex buildings, except employees and certain others who are exempted from the search policy by Judge Nachtigal. The contract between the county and Olympic "was drafted by, is administered by[,] and is subject to modification and amendment by the Washington County Sheriff's Office." "[A]ll but specifically excepted persons entering the Courthouse complex, in the absence of probable cause, reasonable suspicion, or any other lawful or constitutional justification or basis, are seized, stopped, detained and subjected to intrusive and extensive searches[.]" Individuals are required "to walk through highly sensitive electronic magnetic devices which are activated by small amounts of metal"; to submit their belongings, briefcases, and other parcels to employees of Olympic, who use x-ray machines and conduct hand searches of their persons, effects, and clothing; and "to hand over for inspection all belongings and garments as demanded by Olympic employees." If a person seeking entrance to the courthouse refuses to consent to the conduct as described above, Olympic employees instruct that he or she may not enter. If the person enters contrary to such an instruction, Washington County deputy sheriffs are summoned to order that person to leave the courthouse on pain of arrest for criminal trespass.2 As part of their first claim for relief, plaintiffs specifically allege that the contract between the county and Olympic, pursuant to which the security procedures are performed, "is not the legislative product of a politically accountable body."
Plaintiffs' second claim for relief is aimed at the judicial order directing that the security procedures be implemented. In that claim, the key allegations are these: Judge Nachtigal "issued and filed `General Order 130' requiring and ordering that all but specifically excepted persons submit their persons and belongings to seizure and search upon command by the employees of Olympic Security Services, Inc." The order was issued "without an affidavit alleging facts amounting to probable cause or a hearing from which a court might find probable cause," "describes no particular individual to be searched," and requires "all persons, other than those specifically excepted by the Presiding Judge, to submit themselves and their belongings to seizure and search by persons who are not commissioned law enforcement officers upon other than individualized suspicion and without probable cause." The order is a "`general search warrant'" and is "unlawful and in violation of [the] Oregon Constitution including the provisions of Article I, [s]ection 9."
On the basis of those allegations, plaintiffs sought declaratory and injunctive relief. In particular, they requested a judgment:
In their amended answers, defendants denied many of plaintiffs' allegations, and they pleaded four affirmative defenses: (1) plaintiffs have an adequate remedy at law; (2) there is no justiciable controversy; (3) plaintiffs lack standing; and (4) the court should exercise its discretion to deny the complaint because it is overly broad. Judge Nachtigal moved for judgment on the pleadings based on the first two affirmative defenses, and the county and Olympic orally joined that motion. Judge Nachtigal also moved for summary judgment, arguing, among other points, that the searches were constitutional as a matter of law because they were either valid administrative searches or were based on the consent of persons entering the courthouse. The motion for judgment on the pleadings incorporated the memorandum that Judge Nachtigal filed in support of the motion for summary judgment, thus effectively expanding the legal grounds for the motion for judgment on the pleadings to include the arguments that the searches were valid as administrative or consent searches.
At the hearing on that motion, the parties and the court focused primarily on defendants' assertion that, under State v. Brownlie, 149 Or.App. 58, 941 P.2d 1069 (1997), the search procedures as described in the complaint are constitutional because they are conducted pursuant to consent. The trial court agreed with that proposition and granted defendants' motion for judgment on the pleadings. In its judgment, the trial court declared that "[t]he actions of defendants Washington County and Olympic Security Services, Inc. in establishing the perimeter security system described in plaintiffs' complaint do not violate the Oregon Constitution." The trial court also declared that "Presiding Judge Gayle A. Nachtigal's `General Order 130' is not a general search warrant and does not violate the Oregon Constitution, including the provisions of Article I, section 9."
On appeal, plaintiffs' primary challenge is to the trial court's ruling that the searches described in their complaint do not violate Article I, section 9.3 Plaintiffs argue that the courthouse security procedures cannot be justified on the basis of consent, because "[p]laintiffs expressly do not consent to being searched" and "[a]ny consent that is implied by application of Brownlie * * *, is the produc[t] of coercion and not an act of free will." Alternatively, plaintiffs argue that, because no statute explicitly provides for courthouse security searches and because neither General Order 130 nor the contract was properly authorized, the searches were not valid administrative searches. In response, defendants renew their reliance on the decision in Brownlie, asserting that the allegations of the complaint establish as a matter of law that the security searches are performed pursuant to implied consent. Defendants also argue in the alternative that the searches are valid administrative searches because they are authorized by a politically accountable body.
We begin with the question of whether the security search practices or procedures, as alleged, are constitutional...
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