Opinion
TC 420 089, SC 25344
Argued March 10, 1978
Reversed and remanded May 23, 1978
Appeal from Circuit Court, Multnomah County.
Alan F. Davis, Judge.
Reversed and remanded.
Michael E. Kohlhoff, Portland, argued the cause and filed a brief for appellant.
Edward H. Warren, of Hershiser, Mitchell Warren, Portland, argued the cause for respondent. With him on the brief was Bruce L. Mowery.
1. Plaintiff brought an action against defendant, a police officer assigned to the Youth Division of the Portland Police Bureau, for interference with plaintiff's right to custody of her eight-month-old son. Her complaint alleged as one "cause of action" that defendant "intentionally, maliciously and without probable cause, caused [her son] to be placed in protective custody," and as a second "cause of action" that defendant was negligent in making an investigation and report of burns suffered by the child, thereby causing him to be taken into protective custody and plaintiff to be subjected to judicial proceedings. Although the complaint purported to state two causes of action, it actually stated a single cause of action with several counts. Defendant demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action, ORS 16.260 (6), specifically asserting that defendant had an absolute immunity from civil liability when acting in the official capacity appearing on the face of the complaint. The trial court sustained the demurrer, and plaintiff appeals from the judgment entered on the demurrer. Because the complaint alleges facts which, if proved, would establish plaintiff's right to recover for an intentional, malicious and unjustified interference with custody of her child, we conclude that the demurrer should have been overruled. See Shires v. Cobb, 271 Or. 769, 770 n. 1, 534 P.2d 188 (1975).
Since the demurrer should have been overruled on one of plaintiff's theories, we do not reach the remaining theories of the complaint. See Chaney v. Fields Chevrolet Co., 264 Or. 21, 27-28, 503 P.2d 1239, 59 ALR3d 1199 (1972); Rich v. Tite-Knot Pine Mill, 245 Or. 185, 189, 421 P.2d 370 (1966); ORS 16.270.
2. Although in the past a parent had a legally protected interest in the custody of a child only on the theory that the parent was entitled to the child's services, that theory long ago turned into one of the fictions of pleading and was eventually abandoned. The history was traced in a leading opinion of the New York Court of Appeals, Pickle v. Page, 252 N.Y. 474, 169 N.E. 650 (1930), annotated in 72 ALR 842 (1931), which affirmed a tort recovery against a sheriff who had taken a five-year-old boy from the custody of his adoptive parents at the behest of his natural mother. Pickle v. Page was followed by the Supreme Court of Michigan in Oversmith v. Lake, 295 Mich. 627,295 NW 339 (1940), on facts similar to those pleaded in this case, when the court affirmed a father's recovery of damages against a county welfare agent and a juvenile officer who took plaintiff's children into custody upon an allegation of neglect. We have no doubt that a parent's right to the custody of a child is equally protected against unjustified interference also in Oregon. See ORS 163.245, 419.519; cf. McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977). Of course, the interference may be justified under the statutes specifically authorizing such action for the protection of children, ORS 419.569 and (with respect to investigations and reports) ORS 418.745- 418.775 and perhaps also apart from statute, see Restatement of Torts 2d, § 700, Comment e. But that is a matter of defense rather than demurrer. We turn, therefore, to defendant's claim of absolute immunity from liability on the facts pleaded in the complaint.
3.4. Defendant claims immunity on the premise that she was necessarily engaged in a "discretionary" official act within the meaning of Jarrett v. Wills, 235 Or. 51, 383 P.2d 995 (1963), and similar decisions. However, her authority to exercise discretion does not appear on the face of the complaint or in ORS 418.745- 418.775. Of course, making an investigation and a report involves judgment and evaluation of factual circumstances. Many officers or employees carrying out the functions entrusted to them by others must frequently assess facts and choose how to act or not to act upon them. But not every exercise of judgment and choice is the exercise of discretion. It depends on the kind of judgments for which responsibility has been delegated to the particular officer. Discretion, as this court has noted in other contexts, involves "room for policy judgment," Smith v. Cooper, 256 Or. 485, 502, 475 P.2d 78, 45 ALR3d 857 (1970), quoting Dalehite v. United States, 346 U.S. 15, 36 (1953), or the responsibility for deciding "the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued," Antin v. Union High School Dist. No. 2, 130 Or. 461, 469, 280 P. 664 (1929). It involves the delegated responsibility for "assessment and ranking of the policy objectives explicit or implicit in the statute" and for the judgment that one or more of these objectives will be served by a given action, Dickinson v. Davis, 277 Or. 665, 673, 561 P.2d 1019 (1977). In other words, insofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has "discretion" to the extent that he has been delegated responsibility for the latter kind of value judgment.
The kind of delegated authority that involves discretion is illustrated by the cases. In Jarrett v. Wills, supra, the superintendent of a state institution for mentally deficient persons was held immune from tort liability for granting leave to an inmate because the relevant statute and regulations in broad terms delegated that responsibility to him. In Watts v. Gerking, 111 Or. 641, 222 P. 318, rev'd on rehearing, 228 P. 135 (1924), a divided court accorded immunity from an action for malicious prosecution to a district attorney. The Court of Appeals has recognized the tort immunity of the director of the state department of environmental quality for administrative orders issued by him, Chemical Waste Storage and Disposition, Inc. v. Day/Mann, 14 Or. App. 515, 513 P.2d 1193, review denied (Or 1973), and of a department head and the personnel director of the University of Oregon in making personnel recommendations, Donahue v. Bowers/Steward, 19 Or. App. 50, 526 P.2d 616, review denied (Or 1974). On the other hand, tort claims for false arrest, false imprisonment, and malicious prosecution have been brought and upheld against police officers without any claim of immunity. Christ v. McDonald, 152 Or. 494, 52 P.2d 655 (1935); cf. Rogers v. Hill, 281 Or. 491, 576 P.2d 328 (1978). Although policy discretion is more likely to be found at or near the level of political responsibility, it is not simply a matter of the defendant's office but of the scope and nature of the choices delegated to him. Thus a judge was denied tort immunity when he issued an arrest warrant without having received a sworn complaint as required by law, Utley v. City of Independence, 240 Or. 384, 402 P.2d 91 (1965), while employees as well as members of the highway commission were immune in making a broadly delegated range of choices in constructing a highway. Smith v. Cooper, supra, distinguishing Ogle v. Billick, 253 Or. 92, 453 P.2d 677 (1969).
By these criteria, defendant did not have immunity at the time this complaint was filed, and the demurrer should have been overruled.
The effect of chapter 609, Oregon Laws 1975, and chapter 823, Oregon Laws 1977, and of ORS 418.762 and their compatibility with article I, section 10, of the Oregon Constitution if applied to this action are not before us on this appeal, and we express no opinion thereon.
Reversed and remanded.