Utley v. City of Independence

• Decision Date: 19 May 1965
• Citation: 240 Or. 384,402 P.2d 91
• Parties: George S. UTLEY, Respondent, v. CITY OF INDEPENDENCE, Harvey E. Shellenbarger and The General Insurance Company of America, Defendants, Don Hardy, Appellant.
• Court: Oregon Supreme Court

Page 91

402 P.2d 91

240 Or. 384

George S. UTLEY, Respondent, v. CITY OF INDEPENDENCE, Harvey E. Shellenbarger and The

General Insurance Company of America, Defendants,

Don Hardy, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 5, 1964.

Reargued Dec. 9, 1964.

Decided May 19, 1965.

Myron L. Enfield, Salem, argued the cause for appellant. With him on the briefs were Geo. A. Rhoten and Rhoten, Rhoten & Speerstra, Salem.

John Daniel Callaghan and Norma J. Paulus, Salem, argued the cause for respondent. With them on the brief were William G. Paulus and Paulus & Callaghan, Salem.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

GOODWIN, Justice.

This is an action for false arrest. The plaintiff was arrested upon a warrant issued by the defendant Hardy, who was the city recorder of Independence. Hardy issued the warrant without a sworn complaint having been filed. All defendants except Hardy were granted a nonsuit. The jury awarded the plaintiff $7,500, and Hardy appeals.

Because under the city charter the city recorder also serves as municipal judge, Hardy claimed a defense of judicial immunity. The trial court ruled that Hardy was not protected by judicial immunity because he had acted without authority. The court submitted only the issue of damages to the jury.

Although a number of collateral issues were urged at trial and on appeal, the most significant issue in this case is whether or not the doctrine of judicial immunity will protect a judicial officer who, without a sworn complaint charging the person with an offense, orders the arrest of such person.

The plaintiff concedes that the judge of a municipal court duly created by a city charter is clothed with immunity from personal liability while in the performance of his authorized judicial business. Immunity also protects the judge when he acts in a matter in which his jurisdiction is questionable. In Cottam v. Oregon City, 98 F. 570 (C.C.D.Or.1899), immunity was said to apply unless a clear absence of jurisdiction is at once apparent to the ordinary understanding. A similar rule is discussed in 2 Harper and James, The Law of Torts, 1643, § 29.10 (1956).

The city of Independence has an ordinance, the validity of which is not before us, which provides that persons delinquent in the payment of sewer assessments will be subject to prosecution which may result in a fine or imprisonment. The plaintiff fell five months behind in his payments and, consequently, owed the city five dollars.

At the time that the plaintiff was arrested, Hardy was the custodian of the city's records showing the status of sewer assessments. As recorder, Hardy thus had personal knowledge of the plaintiff's delinquency.

On April 23, 1962, Hardy sent a demand letter to the plaintiff. The letter, a mimeographed form, advised the plaintiff of his delinquency and of the penalty provisions of the ordinance. A month went by. The charges were not paid.

Purporting to act in his judicial capacity, but without a written complaint having been filed, Hardy issued a warrant for the plaintiff's arrest. The plaintiff was arrested.

The plaintiff brought this action on the theory that the issuance of a warrant of arrest without a sworn complaint being on file was an act wholly outside the jurisdiction of the municipal court. We need not consider whether or not immunity would shelter the acts of a judge who, within his jurisdiction, acted in violation of the due-process clause of the Fourteenth Amendment. (See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).) It is necessary only to decide whether the action of the recorder (municipal judge) in issuing the warrant in the instant case was an action wholly outside the jurisdiction of the court or an action within the colorable jurisdiction of the court. To answer these questions, we must look to the sources of the jurisdiction of the municipal judge.

Section 20 of the Charter of the City of Independence designates the city recorder as the ex officio municipal judge and provides:

'* * * The municipal judge shall have authority to issue process for the arrest of persons accused of an offense against the ordinances of the city * * *. When not governed by ordinance or this charter, all proceedings in the municipal court for the violation of a city ordinance shall be governed by the general laws of the state governing justices of the peace and justice courts.'

In defining the general provisions and proceedings prior to judgment in Justices' Courts, the Oregon Revised Statutes include the following:

'Upon the filing of the complaint, the justice shall issue a warrant of arrest for the defendant named therein.' ORS 156.050.

ORS 133.040 provides as follows:

'When complaint is made to a magistrate of the commission of a crime, the magistrate shall examine the informant on oath, reduce his statement to writing, cause the same to be subscribed by him and take the depositions of any witnesses that he produces in support thereof.'

In the case of a search warrant, this court has held that the requirement of a sworn statement was jurisdictional. The issuance of a search warrant without an affidavit thus was not the erroneous performance of an authorized judicial function, but was the performance of a wholly unauthorized act by one having no jurisdiction to act. Shaw v. Moon et al., 117 Or. 558, 245 P. 318, 45 A.L.R. 600 (1926). Under statutes very similar to our own, a Minnesota municipal judge similarly was held liable for issuing a warrant without first having a complaint reduced to writing and subscribed as required by law. Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 173 A.L.R. 819 (1947).

It has been contended that present case is analogous to a case under ORS 133.340, which authorizes a magistrate to command any person to arrest an offender who commits a crime in the presence of the magistrate. In the instant case, it is not contended that the plaintiff committed a crime in the presence of the defendant. However, it is argued that the situations are alike because in both situations the magistrate has personal knowledge of the offense.

One purpose of an oath, affirmation, or complaint is to guarantee that the officer who issues the warrant is relatively sure that an offense has been committed. However, a sworn complaint, particularly when memorialized in writing, also has other legal consequences. The complaint records the statements and names of the complaining witnesses. It creates a record. It provides a formal and visible basis for governmental action. Upon this record, the complaining witness may later be held for false statements. Furthermore, the knowledge that it is necessary to swear to a complaint, and that there may be later liability for swearing falsely, may serve to inhibit complaints.

The power of a magistrate to order the assistance of officers to maintain order, either in his own court, or outside court, in the event of a riot or disturbance, includes the power to order an arrest for an offense committed in the presence of the magistrate. Frazier v. Moffatt, 108 Cal.App.2d 379, 239 P.2d 123 (1952). The power to order an arrest for an offense committed in the presence of the magistrate, however, is a power necessary to the judicial office. This exception to the general rule that no warrant shall issue without an oath or affirmation is grounded in the historic necessity for preventing breaches of the peace. No reason has been suggested why a judge should be authorized to issue warrants without a formal complaint in any other circumstances.

The warrant of arrest, signed by the recorder, shows that Hardy must have been aware of the correct procedure. The warrant begins:

'Complaint upon oath having been made before me that the Crime of failure to pay monthly sewage charge under Ordinance No. 790 has been committed * * *.'

We hold that, except for those cases covered by ORS 133.340, when a judicial officer issues a warrant without a sworn complaint having been made, there is no judicial business properly before him, and he acts as a private citizen. The unauthorized action is not, therefore, merely the erroneous exercise of colorable judicial power, but it is the usurpation of judicial power, and is not protected by immunity. Shaw v. Moon, supra; Hoppe v. Klapperich, supra.

While the defense of immunity is not available in this action, two other assignments of error require discussion.

The trial court permitted the jury to consider an allegation, made during the trial and added to the complaint as an amendment, to the effect that the wrongful arrest caused the plaintiff to suffer a loss of employment. Both the ruling which permitted the plaintiff to add the the allegation of damage to his pleading and the ruling which permitted the allegation to go to the jury are challenged.

The allowance of the amendment was discretionary. We cannot say, as a matter of law, that the trial court abused its discretion in allowing the plaintiff to amend. There was some evidence to the effect that the plaintiff may have lost an opportunity for employment because of the arrest. That evidence was for the jury to consider.

Another assignment of error, however, challenges the sufficiency of certain evidence to go to the jury. Plaintiff alleged in his complaint, and the jury was allowed to consider, that the plaintiff's reputation for honesty and integrity was adversely affected by the arrest. On this appeal, the defendant Hardy contends that injury to plaintiff's reputation, as distinguished from injury to his feelings, was not proved. See Paget v. Cordes, 129 Or. 224, 277 P. 101 (1929).

The plaintiff contends, however, that an inference that the arrest caused a loss of reputation may be drawn from the way in which one employer explained why he would not hire the plaintiff:

'I think until the heat goes off around here you better try and...