Harmon v. State of Oregon

406

404

320 Or App

Harmon

2022 v. State of Oregon June 23, 2022

Argued and submitted September 7, 2021; reversed in part and remanded,

otherwise affirmed June 23, 2022

Leslie C. HARMON II,

as Personal Representative of the

Estate of Annita Shirley Harmon,

Plaintiff-Appellant,

v.

STATE OF OREGON,

acting by and through the

Psychiatric Security Review Board,

acting by and through the

Oregon State Hospital,

Defendant-Respondent,

and

Mukesh MITTAL, M.D.,

Defendant.

Multnomah County Circuit Court

18CV58438; A172674

514 P3d 1131

Plaintiff, on behalf of the decedent, brought this wrongful death action

against the state—acting by and through the Psychiatric Security Review Board

(PSRB) and the Oregon State Hospital (OSH)—after the decedent was killed

by an individual, Montwheeler, who had recently been released from the juris-

diction of PSRB and released from commitment at OSH. Plaintiff alleged the

state was negligent in myriad ways, including in releasing Montwheeler; in its

treatment, testing, and assessment of Montwheeler; and in its failure to warn

the decedent about Montwheeler’s release. The trial court granted the state’s

motion for summary judgment, concluding quasi-judicial immunity barred plain-

tiff’s claim. Held: Quasi-judicial immunity barred plaintiff’s negligence claim

against the state arising from PSRB’s and OSH’s release of Montwheeler and

with regard to PSRB’s assessment of the Montwheeler’s mental health. But the

state was not entitled to quasi-judicial immunity with regard OSH’s assessment

of Montwheeler’s mental health. Nor was the state entitled to quasi-judicial

immunity with regard to claims that the state was negligent in its treatment and

testing of Montwheeler or in its failure to warn the decedent of Montwheeler’s

release.

Reversed in part and remanded; otherwise affirmed.

Angel Lopez, Judge.

Travis Eiva argued the cause and filed the briefs for

appellant.

Cite as 320 Or App 406 (2022) 407

Peenesh Shah, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Egan, Judge, and

Aoyagi, Judge.*

EGAN, J.

Reversed in part and remanded; otherwise affirmed.

______________

* Egan, J., vice Armstrong, S. J.

408 Harmon v. State of Oregon

EGAN, J.

Plaintiff, personal representative of the estate of

Annita Shirley Harmon, brought this wrongful death

action against the State of Oregon, acting by and through

the Psychiatric Security Review Board (PSRB) and the

Oregon State Hospital (OSH), after Harmon was killed

by her ex-husband Anthony Montwheeler following his

discharge from the jurisdiction of PSRB and release from

OSH. Plaintiff’s complaint alleged that the state, acting

by and through PSRB and OSH, was negligent in myriad

ways, including with regard to its treatment through med-

ication, psychological testing, assessment, and release of

Montwheeler, as well as in failing to warn Harmon about

Montwheeler’s release. The trial court granted summary

judgment to the state on the basis that quasi-judicial immu-

nity barred plaintiff’s claim. In her sole assignment of error,

plaintiff contends that the trial court erred in granting the

state’s motion for summary judgment.

For the reasons explained below, given the sum-

mary judgment record in this case and the allegations in

the complaint, we conclude that the trial court did not err in

concluding that quasi-judicial immunity barred plaintiff’s

negligence claim against the state arising from PSRB’s

and OSH’s release of Montwheeler.1 PSRB’s determination

regarding whether to discharge an individual from its juris-

diction shares enough of the characteristics of the judicial

process that the state is entitled to quasi-judicial immunity

regarding PSRB’s acts or omissions in making that deter-

mination, and quasi-judicial immunity likewise immunizes

the state from liability for OSH’s compliance with PSRB’s

release decision. Moreover, the trial court did not err when

it concluded that the state is entitled to quasi-judicial immu-

nity with regard to PSRB’s assessment of Montwheeler’s

1

In this opinion, we discuss the applicability of the doctrine of quasi-judicial

immunity to the state for actions undertaken by PSRB and OSH. In doing so,

we are mindful that the quasi-judicial immunity enjoyed by the state in this

case arises from whether PSRB and OSH would enjoy such immunity, which in

turn arises from whether individual employees of PSRB and OSH would enjoy

such immunity for their conduct. Nevertheless, given the way the complaint in

this case frames the claims at issue and the summary judgment record, in this

opinion we refer to conduct allegedly undertaken by PSRB and OSH, rather than

conduct undertaken by the employees thereof.

Cite as 320 Or App 406 (2022) 409

mental health—PSRB’s release decision is its assessment

of Montwheeler’s mental health, and the state is enti-

tled to quasi-judicial immunity regarding that decision by

PSRB. However, we conclude that the state is not entitled

to quasi-judicial immunity with regard to OSH’s treatment

through medication, psychological testing, and assessment

of Montwheeler. The treatment of mental illness through

medication, psychological testing, and assessment of men-

tal health by OSH are not functionally comparable to judi-

cial actions. Further, to the extent that PSRB, outside of

its quasi-judicial role, engaged in treatment of Montwheeler

through medication or psychological testing of Montwheeler,

the state is not entitled to quasi-judicial immunity for those

acts by PSRB.2 Finally, given the record in this case, we

conclude that the state is not entitled to quasi-judicial

immunity for PSRB’s and OSH’s failure to warn Harmon of

Montwheeler’s release.

Consequently, we reverse in part and remand.

I. ISSUES PRESENTED AND

STANDARD OF REVIEW

To frame our analysis, we start by identifying what

is—and is not—at issue in this appeal, as well as the legal

standards that govern our review of the trial court’s resolu-

tion of the issues presented.

As noted above, plaintiff alleges that the state was

negligent in its treatment through medication, psychological

testing, assessment, and release of Montwheeler, as well as

in failing to warn Harmon about Montwheeler’s release. The

state’s motion for summary judgment did not put at issue

plaintiff’s ability to prove those allegations of negligence or

2

Plaintiff’s complaint alleges that the state, acting by and through PSRB,

was negligent in failing to treat Montwheeler through implementation of a rea-

sonable medication management program and failing to “test or reasonably per-

form psychological testing” on Montwheeler.

On appeal, the state argues that it was entitled to summary judgment in

part because the PSRB was not authorized to undertake those acts. As explained

below, to the extent that the state is correct that PSRB is not authorized to imple-

ment a medication management program or perform psychological testing—and

we have no reason to believe that the state is not correct in that assertion—that

may provide a future basis for summary judgment (or other appropriate motion),

but it was not the basis for the state’s existing summary judgment motion in the

trial court.

410 Harmon v. State of Oregon

whether those allegedly negligent acts resulted in the harm

alleged. The only issue raised in the motion with respect to

actions taken by the state was whether, with regard to all

of the allegations of negligence made by plaintiff, absolute

quasi-judicial immunity barred plaintiff from recovering.3

Consequently, for purposes of this appeal, “we assume that

[the state] was negligent in each of the manners alleged,”

Robbins v. City of Medford, 284 Or App 592, 595, 393 P3d

731 (2017), and assume that that negligence resulted in the

harm alleged, Westfall v. Dept. of Corrections, 355 Or 144,

156, 324 P3d 440 (2014) (“Because the trial court granted

summary judgment for the state based on its claim of discre-

tionary immunity, we assume for purposes of analysis that

the department’s policy did result in a prison term calcula-

tion that was inconsistent with what the Josephine County

Circuit Court had intended by the sentence it imposed.”).

The sole question is the state’s entitlement to absolute quasi-

judicial immunity for the assumedly negligent acts and

omissions. ORCP 47 C; Eklof v. Steward, 360 Or 717, 731,

385 P3d 1074 (2016) (the only issues properly before a court

on summary judgment are those raised in the motion for

summary judgment). We do not consider—and we express

no opinion on—whether other immunity doctrines might

bar plaintiff’s claim. See Hofer v. OHSU, 319 Or App 603,

609 n 3, 511 P3d 414 (2022) (“OHSU, however, does not claim

that qualified privilege applies and we, therefore, address

only the question of the applicability of absolute privilege.”).4

3

The state also argued in its motion for summary judgment that Dr. Mukesh

Mittal, one of Montwheeler’s treating psychiatrists, was “entitled to absolute

privilege for his testimony made before the PSRB.” That issue is not before us on

appeal.

4

On appeal, the state argues that Harmon’s death was not a foreseeable

result of Montwheeler’s release. But foreseeability was not a ground on which

the state moved for summary judgment in the trial court; therefore, we reject

the state’s foreseeability argument as a basis for affirmance. See Eklof, 360 Or

at 730 (“ ‘Parties seeking summary judgment must raise by motion the issues on

which they contend they are entitled to prevail as a matter of law. Parties oppos-

ing summary judgment have the burden of producing evidence that creates a

material issue of fact as to those issues, but only as to those issues.’ ” (Quoting Two

Two v. Fujitec America, Inc., 355 Or 319, 326, 325 P3d 707 (2014); emphasis in

Eklof.)).

Similarly, on appeal, the state argues that plaintiff cannot prove causation,

because “any pre-release failures in treating, assessing, or supervising

Montwheeler were not causally related to Harmon’s death,” and, more specifi-

cally, “if Harmon’s death can be causally traced to Montwheeler’s release, then

Cite as 320 Or App 406 (2022) 411

We turn to the applicable standard of review. As

noted, the trial court resolved the issue of the state’s enti-

tlement to quasi-judicial immunity on summary judgment.

“On review of a grant of summary judgment, we must view

the summary judgment record in the light most favorable

to the nonmoving party—in this case, plaintiff—and deter-

mine whether there are genuine issues of material fact”

and whether the state, “as the moving party, is entitled to

judgment as a matter of law on the ground of” quasi-judicial

immunity. Robbins, 284 Or App at 595-96. The summary

judgment record “includes both the pleadings and the evi-

dence presented.” Hofer, 319 Or App at 615.

Further, because quasi-judicial immunity is an

affirmative defense for which the state would have the bur-

den of proof at trial, Jones-Clark v. Severe, 118 Or App 270,

273, 846 P2d 1197 (1993), “summary judgment is appro-

priate only if [the state] establishes all of the elements of

the defense as a matter of law,” Robbins, 284 Or App at 596

(internal quotation marks omitted). “Our task on appeal, as

circumscribed by our standard of review, is to determine

whether the uncontroverted evidence presented by defen-

dant in support of its motion for summary judgment is such

that all reasonable factfinders would have to find in defen-

dant’s favor on its affirmative defense of” quasi-judicial

immunity. Id. (internal quotation marks and brackets omit-

ted). “In other words, we must be able to conclude that no

reasonable factfinder could reject defendant’s defense.” Id.

(internal quotation marks omitted). Because plaintiff’s

allegations of negligence challenge several distinct alleged

acts and omissions by the state, “we consider [the state’s]

that release can be causally traced solely to the PSRB’s release order, and

any anterior links in that chain of causation—such as OSH’s treatment and

assessments—are too tenuous to support a verdict in plaintiff’s favor.” That prof-

fered basis for affirming the trial court’s grant of summary judgment presents

a materially different issue from the issue raised by the state’s motion for sum-

mary judgment. We consequently reject the state’s causation argument as a basis

for affirmance.

Finally, we note that, in its brief on appeal, in a footnote, the state argues

that “even if OSH was not entitled to absolute immunity against plaintiff’s alle-

gations, it was entitled to qualified immunity.” But qualified immunity was not

raised in the state’s motion for summary judgment and the state’s undeveloped

qualified immunity argument on appeal likewise does not provide a basis to

affirm.

412 Harmon v. State of Oregon

entitlement to [quasi-judicial] immunity with respect to

each act or omission alleged to be negligent.” Id.

II. THE FUNCTION OF PSRB AND OSH

At the outset, we briefly explain the roles of PSRB

and OSH, as helpful to an understanding of the facts and

our analysis of the application of quasi-judicial immunity.

A. PSRB

PSRB is a state agency created by ORS 161.385.

Pursuant to ORS 161.327, if the court finds that a person

found guilty except for insanity of a felony is “affected by

a qualifying mental disorder” and presents a “substantial

danger to others,” and the court “finds that the person is

not a proper subject for conditional release,” the court is

required to “order the person committed to a state hospital”

and “place the person under the jurisdiction” of PSRB.5 A

corollary of ORS 161.327, OAR 859-030-0010, provides that

the PSRB “will take jurisdiction over persons adjudged by

the court to be guilty except for insanity and who present a

substantial danger to others.”

ORS 161.351 requires that PSRB discharge any per-

son placed under its jurisdiction if, after a hearing, PSRB

“finds by a preponderance of the evidence that the person is

no longer affected by a qualifying mental disorder or, if so

affected, no longer presents a substantial danger to others

that requires regular medical care, medication, supervision

or treatment.”

A discharge hearing can be initiated when the

superintendent of the hospital where the person is commit-

ted applies to PSRB for an order of discharge. ORS 161.341(1)

provides:

“If at any time after a person is committed * * * to a

state hospital * * * the superintendent of the hospital * * *

is of the opinion that the person is no longer affected by

5

“A person is guilty except for insanity if, as a result of a qualifying men-

tal disorder at the time of engaging in criminal conduct, the person lacks

substantial capacity either to appreciate the criminality of the conduct or to

conform the conduct to the requirements of law.”

ORS 161.295.

Cite as 320 Or App 406 (2022) 413

a qualifying mental disorder, or, if so affected, no longer

presents a substantial danger to others * * * the superin-

tendent * * * shall apply to the Psychiatric Security Review

Board for an order of discharge * * *.”

A discharge hearing can also be initiated if a per-

son committed to a state hospital and under the jurisdiction

of PSRB applies for an order of discharge. ORS 161.341(3)

provides:

“Any person who has been committed to a state hospi-

tal, * * * or another person acting on the person’s behalf,

may apply to the board for an order of discharge or condi-

tional release upon the grounds:

“(a) That the person is no longer affected by a qualify-

ing mental disorder;

“(b) That the person, if so affected, no longer presents

a substantial danger to others; or

“(c) That the person continues to be affected by a qual-

ifying mental disorder and would continue to be a danger

to others without treatment, but that the person can be

adequately controlled and given proper care and treatment

if placed on conditional release.”

When the superintendent applies for an order of

discharge under ORS 161.346(1), the application must be

accompanied “by a report setting forth the facts support-

ing the opinion of the superintendent or director.” Similarly,

when a person committed to a state hospital, or another per-

son acting on behalf of the committed person, applies for

an order of discharge under ORS 161.346(3), PSRB “shall

require that a report from the superintendent of the hospital

be prepared and transmitted” containing the opinion of the

superintendent as to the discharge of the committed person.

ORS 161.341(4).

When an application for an order of discharge is

made under ORS 161.341(1) or ORS 161.341(3), PSRB must

hold a hearing pursuant to ORS 161.346.6 That statute

6

We note that there are certain restrictions on the timing of requests for

discharge under ORS 161.341(3).

We also note that the statutory scheme further provides that no person may

be held for more than two years without a hearing by PSRB to determine whether

the person should be discharged or conditionally released. ORS 161.341(6).

414 Harmon v. State of Oregon

requires that, at the hearing, the board “consider all evi-

dence available to it that is material, relevant and reliable

regarding the issues before the board.” ORS 161.346(3). It

also requires that the person about whom the hearing is

conducted, their attorney, the Attorney General, and the

district attorney of the county from which the person was

committed, receive notice of the hearing. ORS 161.346(4).

Further, the person about whom the hearing is

being held has the right:

“(a) To appear at all proceedings held * * *, except for

deliberations.

“(b) To cross-examine all witnesses appearing to tes-

tify at the hearing.

“(c) To subpoena witnesses and documents * * *.

“(d) To be represented by suitable legal counsel pos-

sessing skills and experience commensurate with the

nature and complexity of the case, to consult with counsel

prior to the hearing and, if financially eligible, to have suit-

able counsel appointed at state expense.

“(e) To examine all information, documents and reports

that the board considers.”

ORS 161.346(6).

After the hearing conducted pursuant to ORS

161.346, PSRB must enter an order with findings in support

of the order:

“If the board finds that a person under the jurisdiction

of the board:

“(a) Is no longer affected by a qualifying mental disor-

der, or, if so affected, no longer presents a substantial dan-

ger to others, the board shall order the person discharged

from commitment * * *.

“* * * * *

“(c) Has not recovered from the qualifying mental dis-

order, is a substantial danger to others and cannot ade-

quately be controlled if conditionally released on super-

vision, the board shall order the person committed to, or

retained in, a state hospital.”

ORS 161.346(1)(a), (c).

Cite as 320 Or App 406 (2022) 415

B. OSH

OSH is a mental health hospital operated and man-

aged by the Oregon Health Authority. ORS 179.321(1). It is

used by the state “for the care and treatment of persons with

mental illness.” ORS 426.010. As we explained in Adams v.

PERB, 180 Or App 59, 68, 42 P3d 911 (2002), people under

the care of OSH come to OSH through various avenues:

“They may have been civilly committed, transferred from

a correctional facility or a youth correctional facility, placed

within the jurisdiction of the PSRB after being found guilty

except for insanity, or ordered by a court for evaluation.”

III. HISTORICAL AND PROCEDURAL FACTS

With that background, we turn to the facts and pro-

cedural history of the instant case.

A. Montwheeler’s 1996 Conduct and Adjudication

In April 1996, Montwheeler held his then-wife, R,

and their three-year-old son hostage for approximately five

hours while armed with a rifle; in the course of those events,

he threatened his family with the rifle, threatened to drown

his son, and fired his rifle toward police. As a result of that

conduct, Montwheeler was charged with two counts of first-

degree kidnapping with a firearm, as well as six counts of

unlawful use of a firearm. Montwheeler was adjudicated

guilty except for insanity in 1997, placed under the jurisdic-

tion of PSRB for a period not to exceed 70 years, and admit-

ted to OSH.

B. Montwheeler’s Time under the Jurisdiction of PSRB

For much of the time Montwheeler was under the

jurisdiction of PSRB he was committed to OSH.7 Records

show that while at OSH Montwheeler was diagnosed with

“many mental illnesses,” and primarily “bipolar disorder.”

However, early in his time at OSH, in 1997, a clinician indi-

cated that there was “a reasonable medical probability that

7

While under PSRB jurisdiction, Montwheeler spent approximately 10 years

in the community on conditional release, where, although he did not exhibit vio-

lent behavior, he engaged in criminal activity, was adjudicated for that criminal

activity and spent time in the custody of the Department of Corrections and was

ultimately returned to OSH.

416 Harmon v. State of Oregon

[Montwheeler] may have simulated symptoms in order to

avoid the prison system [and] get into the mental health

care system instead.”

At times while under the jurisdiction of PSRB,

Montwheeler took medication for bipolar disorder, but OSH

discontinued Montwheeler’s medication in October 2015.

While Montwheeler was at OSH, treatment provid-

ers performed periodic assessments of the risk of violence

he posed. A July 2016 “risk assessment,” for example, stated

that Montwheeler was a “low risk for violent acts in an insti-

tutional setting, and a moderate risk for violence in the com-

munity if under supervision,” but that if Montwheeler was

“in the community without supervision, his risk of violence

would be high, and would most likely be targeted at his inti-

mate partner or other family members.”

On October 13, 2016, a psychiatrist treating

Montwheeler, Dr. Mukesh Mittal, completed a “progress note”

in which, after a review of records regarding Montwheeler—

including thousands of pages of documents—he concluded

that Montwheeler “more than likely does not have a qual-

ifying mental illness” and “therefore, does not satisfy the

criteria for PSRB jurisdiction.”

The next day—on October 14, 2016—Montwheeler’s

counsel sent a letter to PSRB requesting a hearing for

Montwheeler’s discharge from PSRB jurisdiction.

Shortly thereafter, on October 25, 2016, OSH con-

ducted a “risk review.” The report generated as a result

of that assessment explained that the interdisciplinary

team responsible for the risk assessment would request

“Jurisdictional Discharge Review for Mr. Montwheeler”

because they believed that he “was improperly placed under

the jurisdiction of the PSRB,” “does not suffer from mental

illness,” and “would be more appropriately placed outside

the hospital.” That report indicated that, during his time

at OSH, Montwheeler had never “displayed any symptoms

indicative of a mental disease or defect” and explained that,

after his 1996 crimes, Montwheeler’s “attorney gave him a

copy of the DSM and coached him well on how to act as if

Cite as 320 Or App 406 (2022) 417

he had a mental illness.” It opined that, if placed “unsuper-

vised in the community, it is probable that [Montwheeler]

would engage in substantially dangerous behavior, such as

defrauding vulnerable individuals,” but that that “substan-

tially dangerous behavior” would be caused by his personal-

ity disorder, not a mental disease or defect. The risk review

also indicated that, “if he is given a jurisdictional discharge,

he wants to return to his wife.”

The summary judgment record also contains evi-

dence that Montwheeler anticipated his release from PSRB

jurisdiction prior to PSRB making the decision to release

Montwheeler.

C. PSRB Discharges Montwheeler from its Jurisdiction

On December 7, 2016, PSRB held a hearing pursu-

ant to ORS 161.341(1). Montwheeler’s attorney requested dis-

charge on behalf of Montwheeler, arguing that “Montwheeler

no longer suffered from a qualifying mental disease or defect

and therefore must be discharged from the Board’s jurisdic-

tion.” An assistant attorney general, appearing on behalf of

the state, opposed the request for discharge. PSRB heard

testimony and received 227 exhibits.

In a written order of discharge, dated December 14,

2016, PSRB determined that “the State did not sustain its

burden of proving by a preponderance of the evidence that

* * * Montwheeler continues to be affected by a mental dis-

ease or defect.” Among the evidence to which PSRB pointed

in the order of discharge was testimony from Mittal that,

although Montwheeler had “carried a diagnosis of Bipolar

Disorder” for “approximately 20 years, there have been no

psychiatric symptoms observed or reported during [that]

time [that] validate this diagnosis” and testimony “to the

effect that Mr. Montwheeler does not suffer from a qualify-

ing mental disease or defect.” PSRB’s order also notes that

Mittal’s conclusion regarding Montwheeler was supported

by the “O.S.H. Risk Review Panel decision recommending a

jurisdictional discharge for Mr. Montwheeler.”8

8

PSRB’s order also noted that “Montwheeler regularly reports to O.S.H.

staff that he has been malingering symptoms of a mental illness in order to stay

out of prison and receive housing.”

418 Harmon v. State of Oregon

The order of discharge concludes, “as a matter of

law,” that “pursuant [to] ORS 161.346(1)(a),” Montwheeler

“must be discharged from the jurisdiction of the [PSRB].”

The state does not dispute that Harmon was not

notified by PSRB or OSH about Montwheeler’s release.

Evidence presented during the summary judgment proceed-

ing reflects that what notice people receive about release of

an individual from PSRB jurisdiction (if such notice were

to occur) would be an “administrative function” of PSRB, as

opposed to a “deliberative” function.

D. Montwheeler’s Release and Subsequent Crimes

After the PSRB discharged Montwheeler from its

jurisdiction, Montwheeler was released from his commit-

ment at OSH. Shortly thereafter, in January 2017,

Montwheeler kidnapped Harmon and stabbed her to death.9

In fleeing from that crime, he was involved in a vehicle acci-

dent in which a second person was killed, and a third person

was injured. As a result of that conduct, Montwheeler was

charged with various crimes.

E. The Instant Litigation

In December 2018, the personal representative for

Harmon filed this action against the state, alleging a sin-

gle count of wrongful death. Paragraph 16 of the complaint

alleged that the state, acting by and through PSRB and

OSH, was negligent in the following ways:

“(a) In failing to have and implement a reasonable

medication management program when the defendants

knew, or in the exercise of reasonable care should have

known that Montwheeler had a mental disorder as defined

by law and that he posed a foreseeable threat of harm to

Annita Harmon and society in general;

“(b) In failing to reasonably assess Montwheeler’s

mental health condition before releasing him on or about

December 7, 2016, when the defendants knew, or in the

exercise of reasonable care should have known that

Montwheeler had a mental disorder as defined by law

9

We note that Harmon was Montwheeler’s fourth wife and is a different per-

son from R, who was Montwheeler’s earlier wife and the victim of Montwheeler’s

1996 crimes.

Cite as 320 Or App 406 (2022) 419

and that he posed a foreseeable threat of harm to Annita

Harmon and society in general;

“(c) In failing to test or reasonably perform psycholog-

ical testing on Montwheeler when the defendants knew, or

in the exercise of reasonable care should have known that

Montwheeler had a mental disorder as defined by law and

that he posed a threat to Annita Harmon and society in

general;

“(d) In releasing Montwheeler on December 7, 2016,

when the defendants knew, or in the exercise of reasonable

care should have known, that they did not possess suffi-

cient information to make a decision that would support

releasing him to the public after 19 years in the jurisdic-

tion of the state mental hospital;

“* * * * *

“(g) In releasing Montwheeler without properly train-

ing or supervising its employees as to the proper standards

for evaluating the mental health of its residents, includ-

ing specifically Montwheeler, when the defendants knew,

or in the exercise of reasonable care should have known

that Montwheeler had a mental disorder as defined by law

and that he posed a foreseeable threat of harm to Annita

Harmon and society in general;

“* * * * *

“(i) In failing to warn Annita Harmon that Montwheeler

was in her community and presented a foreseeable risk of

harm to her while he was not subject to state assessment,

reporting, monitoring, accountability or control when the

defendants knew, or in the exercise of reasonable care

should have known that Montwheeler had a mental disor-

der as defined by law and that he posed a foreseeable threat

of harm to Annita Harmon and society in general.”10

The complaint further alleged that “the negligence

of defendants,” as alleged in paragraph 16(a) through (i),

“was a substantial factor in causing the pre-mature death of

Annita Harmon.”

10

On appeal, plaintiff has abandoned the allegations of negligence contained

in the omitted paragraphs, (e), (f), and (h). We note that the complaint refers to

“defendants” (plural), but that, technically, there is only one defendant named in

the complaint that was the subject of the state’s summary judgment motion, the

state, acting by and through PSRB and OSH.

420 Harmon v. State of Oregon

The state answered plaintiff’s complaint and, on

the same day, moved for summary judgment “based upon

judicial and/or quasi-judicial immunity,” submitting, as its

sole exhibit in support, PSRB’s order of discharge. In its

motion, the state argued that “the Order of Discharge con-

stituted a permissible exercise of quasi-judicial authority

by the PSRB, [OSH] was privileged in complying with the

Order of Discharge made [by] the PSRB, * * * the PSRB had

the exclusive authority and jurisdiction to enter the Order

of Discharge,” and “the employees or agents of [OSH] did

not make the decision [that was] the subject of the order of

discharge.” In the state’s view, the “employees and agents

of the PSRB are entitled to absolute immunity from civil

claims for damages with regard to the decision making and

entry of the Order of Discharge” and “employees or agents

of the Oregon State Hospital are absolutely immune from

civil claims for damages in complying with the Order of

Discharge.”

In response, plaintiff argued that OSH and PSRB

are “distinct,” that “OSH has absolutely no judicial or quasi-

judicial function,” and that therefore “OSH cannot be abso-

lutely immune.” Plaintiff pointed out that the complaint

includes allegations about “failure to train and to notify,”

which occurred “before and after” the December 7, 2016,

hearing. Plaintiff also argued—pointing to evidence that

Montwheeler and others anticipated his release from PSRB

jurisdiction prior the PSRB hearing—that “PSRB cannot

show that the December 7, 2016, hearing was the reason for

Montwheeler’s release”; that a jury could infer “the hearing

was neither an adjudication nor a deliberation” and was not

“quasi-judicial activity”; and that the hearing “bordered on

sham.”

The trial court granted the state’s motion for sum-

mary judgment, reasoning that “PSRB engaged in a quasi-

judicial * * * function in having [the] hearing, * * * and con-

sidering the record, and making the decision,” and that

nothing in the record suggested that PSRB was in “such

abdication of [its] function” that it would take PSRB “out

of any kind of protection.” The court then entered a limited

judgment of dismissal, which plaintiff appeals.

Cite as 320 Or App 406 (2022) 421

IV. ANALYSIS

As noted above, plaintiff’s sole assignment of error

is that the trial court erred in granting the state’s motion for

summary judgment. As also noted, the trial court granted

that motion on the basis of quasi-judicial immunity. We

therefore describe the doctrine of quasi-judicial immunity

before turning to its application with regard to the specific

allegations of negligence in this case.

A. Quasi-Judicial Immunity

“Judicial immunity has long been a part of the immu-

nities afforded public officials.” Praggastis v. Clackamas

County, 305 Or 419, 426, 752 P2d 302 (1988); see also id. (not-

ing judicial immunity is mentioned in the Book of Assizes,

27 Edw. III, pl. 18 (1354)). In Praggastis, the Supreme Court

explained the policy underpinnings of judicial immunity:

“[T]here is a public good to be gained from the principled

and fearless decision-making of judicial officers freed from

concern over suits by disappointed litigants. To gain this

good, it is necessary to cloak judicial officers with immu-

nity from civil liability for their acts, so long as these acts

are within the jurisdiction of the officer.”

Id.

“Judicial immunity depends on the performance of

a judicial function.” Id. at 427. Thus, “[j]udicial immunity is

granted or withheld on the basis of the nature of the func-

tion being performed, and not on the basis of the office.” Id.;

see Butz v. Economou, 438 US 478, 511, 98 S Ct 2894, 57

L Ed 2d 895 (1978) (“Judges have absolute immunity not

because of their particular location within the Government

but because of the special nature of their responsibilities.”).

“When such judicial functions are performed by a public

officer other than a judge, the immunity is often referred to

as quasi-judicial immunity, but this is a distinction of name

and not a distinction of immunity.” Praggastis, 305 Or at

426; see also Ramstead v. Morgan, 219 Or 383, 388, 347 P2d

594 (1959) (“The absolute immunity attaches to statements

made in the course of, or incident to a judicial proceeding.

* * * The rule of absolute privilege is applicable not only to

judicial proceedings but to quasi-judicial proceedings as

422 Harmon v. State of Oregon

well.”). For example, we have stated that the “decisions of

a parole board” are subject to such immunity. Jones-Clark,

118 Or App at 274.

“Several factors are commonly examined to deter-

mine if a particular duty can be considered judicial or quasi-

judicial for the purpose of extending immunity to the official

performing the action.” Praggastis, 305 Or at 426. Those fac-

tors include

“whether the official’s actions are functionally comparable

to judicial actions or involve decisions normally performed

by judges in their judicial capacity, whether the action

depends on legal opinions or discretionary judgments com-

paring the facts of a present situation with general legal

questions, and whether the acts in question are primar-

ily concerned with the official’s role as a judicial or quasi-

judicial officer.”

Id.

In a seminal case concerning judicial immunity,

Butz, the United States Supreme Court held that, under

federal law, “adjudication within a federal administrative

agency shares enough of the characteristics of the judicial

process that those who participate in such adjudication

should also be immune from suits for damages.” 438 US at

512-13. Among those shared characteristics are that the

“conflicts which federal hearing examiners seek to resolve

are every bit as fractious as those which come to court,” that

“federal administrative law requires that agency adjudica-

tion contain many of the same safeguards as are available

in the judicial process,” and that the “transcript of testi-

mony and exhibits together with the pleadings constitute

the exclusive record for decision.” Id. at 513. The Court

explained that “the role of the modern federal hearing exam-

iner or administrative law judge within this framework is

‘functionally comparable’ to that of a judge.” Id. The Court

also held that “agency officials performing certain functions

analogous to those of a prosecutor should be able to claim

absolute immunity with respect to such acts” so that they

can “make the decision to move forward with an adminis-

trative proceeding free from intimidation or harassment.”

Id. at 515-16.

Cite as 320 Or App 406 (2022) 423

Following Butz, both we and our Supreme Court

have explored the contours of the doctrine of judicial immu-

nity in a number of cases. We have held, for example, that

judicial immunity “extends to prosecutors for acts per-

formed in initiating prosecutions,” and that a prosecutor

is “absolutely immune with respect to his or her decision

as to when, how, and against whom to proceed.” Heusel v.

Multnomah County D.A.’s Office, 163 Or App 51, 56, 989 P2d

465 (1999) (internal quotation marks omitted). Similarly, in

the context of judicial immunity under 42 USC section 1983,

in Tennyson v. Children’s Services Division, 308 Or 80, 775

P2d 1365 (1989), the Supreme Court held that child protec-

tive agency caseworkers were entitled to absolute immunity

when filing petitions that initiate juvenile court proceed-

ings, because that act was analogous to a district attorney’s

initiation of a prosecution. Id. at 88. The Supreme Court also

held that child protective agency caseworkers were entitled

to absolute immunity when testifying in court, because

witnesses are an “integral part of the judicial process.” Id.

In contrast, the caseworkers were not entitled to absolute

immunity against 42 USC section 1983 claims when per-

forming investigations, taking children into custody and

limiting parents’ visitation. Id. at 89. The court explained

that “investigating abuse is not an integral part of the judi-

cial process,” because an investigation “may lead no further

or may lead to action not involving the court”; that taking a

child into custody was not “an integral part of the judicial

process because * * * defendants need not have involved the

court”; and that, unless ordered to do so by a court, “limiting

visits [is] not integral to the judicial process.” Id. (internal

quotation marks omitted).11

In addition to providing immunity for “judicial

functions,” judicial immunity also immunizes acts “per-

formed under a court order or directive,” so long as the

court order or directive is “a permissible exercise of judi-

cial authority” and the acts “comply with the court order or

directive.” Fay v. City of Portland, 311 Or 68, 73-74, 804 P2d

11

The court also held that, in the context of 42 USC section 1983 claims, the

caseworkers may be entitled to “qualified immunity,” which is the “norm for exec-

utive officials,” when “performing investigations, taking children into custody

and limiting parents’ visitation.” Tennyson, 308 Or at 85, 89.

424 Harmon v. State of Oregon

1155 (1991). However, “[a] judge has no authority to cloak

the future decisions of others with his own immunity or to

accomplish the same thing by signing a court order after

the fact.” Mendive v. Children’s Services Div., 102 Or App

317, 322, 794 P2d 807 (1990), rev den, 311 Or 87 (1991). In

Fossen v. Clackamas County, 271 Or App 842, 849, 352 P3d

1288 (2015), for example, we concluded that the defendant,

Clackamas County—which had arrested the plaintiff pursu-

ant to an arrest warrant issued by a New York magistrate—

was not entitled to quasi-judicial immunity. We explained

that the arrest warrant “at most” immunized the defendant

regarding the initial arrest made pursuant to the warrant,

but that the defendant had continued to hold the plaintiff

after the defendant “became aware that the factual basis for

the arrest had completely evaporated,” and that that action

was not immune. Id. We also held that an order by a judge

at an arraignment hearing setting a bail hearing for the

plaintiff for the next day did not entitle the defendant to

immunity because, “by the time of that court appearance” at

arraignment, the defendant was aware there was no basis

for the plaintiff’s arrest, so the “wrongful imprisonment had

already occurred.” Id.

B. Application in this Case

With that background, we turn to how the doc-

trine of quasi-judicial immunity applies with regard to the

allegedly negligent acts and omissions in this case. We con-

sider first the allegations related to release of Montwheeler,

then the allegations concerning negligent treatment, test-

ing, and assessment of Montwheeler, and, finally, the alle-

gation concerning negligent failure to warn Harmon of

Montwheeler’s release.

1. Negligent release

Paragraphs 16(d) and (g) of plaintiff’s complaint

allege that the state, acting by and through PSRB and OSH,

was negligent “in releasing” Montwheeler. More specifically,

paragraph 16(d) provides that PSRB and OSH, “combining

and concurring,” acted negligently as follows:

“(d) In releasing Montwheeler on December 7, 2016,

when the defendants knew, or in the exercise of reasonable

Cite as 320 Or App 406 (2022) 425

care should have known, that they did not possess suffi-

cient information to make a decision that would support

releasing him to the public after 19 years in the jurisdic-

tion of the state mental hospital[.]”

We conclude that the trial court did not err when it

concluded that the state had met its burden of establishing,

as a matter of law, that the state is entitled to quasi-judicial

immunity with regard to that allegation of negligence.

In our view, the state is entitled to quasi-judicial

immunity for PSRB’s decision to release Montwheeler from

PSRB’s jurisdiction. That is because PSRB’s determination

regarding whether to discharge an individual from its juris-

diction “shares enough of the characteristics of the judicial

process,” Butz, 438 US at 513, that PSRB is entitled to quasi-

judicial immunity in making that determination. The deci-

sion to release Montwheeler was undertaken by PSRB in its

quasi-judicial role: It occurred as a result of a hearing where

PSRB heard testimony and received exhibits, and included

numerous procedural safeguards, and where Montwheeler

was represented by counsel. ORS 161.346(4). PSRB’s deci-

sion to release Montwheeler was, therefore, “functionally

comparable” to a “judicial action” and is properly understood

to be a “judicial function.” Praggastis, 305 Or at 426.

Similarly, given PSRB’s discharge order, the state

is entitled to quasi-judicial immunity for OSH releasing

Montwheeler following PSRB’s order of discharge. As noted

above, in its order of discharge, the board concluded that,

“pursuant [to] ORS 161.346(1)(a),” Montwheeler “must be

discharged from the jurisdiction of the [PSRB].” We under-

stand that order to have been an order effectively dis-

charging Montwheeler from his commitment at OSH, see

ORS 161.346(1)(a)—as OSH no longer had a basis to hold

Montwheeler—and OSH’s actions releasing Montwheeler

were in accordance with that order. Just as judicial immu-

nity attaches to acts “performed under a court order or direc-

tive,” as long as the court order or directive is a “permissible

exercise of judicial authority” and “the acts * * * comply with

the court order or directive,” Fay, 311 Or at 73-74, quasi-

judicial immunity can attach to acts performed pursuant to

a quasi-judicial order or directive. After all, the distinction

426 Harmon v. State of Oregon

between “judicial immunity” and “quasi-judicial immunity”

is a “distinction of name and not a distinction of immunity.”

Praggastis, 305 Or at 427.

In seeking a different result on appeal, plaintiff

urges us to interpret the allegation of negligence in para-

graph (d) contrary to its plain language. Plaintiff contends

that her allegation that “the state was negligent in ‘releas-

ing’ Montwheeler goes to the conduct of OSH before the

Board’s order of discharge” and that plaintiff’s “theory of the

case does not prosecute any claims that [PSRB] was negli-

gent in its adjudicative order to discharge Montwheeler from

PSRB jurisdiction or otherwise release him.” But plaintiff’s

complaint—viewed as a whole—is not susceptible to the

interpretation plaintiff puts forth on appeal. In that regard,

we note that each of plaintiff’s allegations of negligence in

paragraph 16 allege that both PSRB and OSH were negli-

gent in precisely the same ways and make no distinction

between those two entities. In our view, there is a distinct

difference between an allegation that PSRB and OSH were

negligent “in releasing” Montwheeler and an allegation that

negligent acts undertaken by OSH prior to Montwheeler’s

release hearing were a substantial factor in PSRB’s decision

to release Montwheeler.

We now consider the allegation of negligent release in

paragraph 16(g) and reach the same conclusion. Paragraph

16(g) alleges that PSRB and OSH, “combining and concur-

ring,” were negligent:

“(g) In releasing Montwheeler without properly train-

ing or supervising its employees as to the proper standards

for evaluating the mental health of its residents, includ-

ing specifically Montwheeler, when the defendants knew,

or in the exercise of reasonable care should have known

that Montwheeler had a mental disorder as defined by law

and that he posed a foreseeable threat of harm to Annita

Harmon and society in general[.]”

Although the negligence allegation in paragraph

16(g) refers to conduct that occurred prior to the decision

to release Montwheeler—failure to train and supervise

employees—we understand it to allege that the decision to

release Montwheeler was negligent. For the same reason

Cite as 320 Or App 406 (2022) 427

that the state is entitled to quasi-judicial immunity for the

negligence alleged in paragraph 16(d), we believe quasi-

judicial immunity bars plaintiff’s negligence claim for the

conduct described in paragraph 16(g): PSRB’s decision to

release Montwheeler was undertaken by PSRB in its quasi-

judicial role, and OSH releasing Montwheeler from commit-

ment at OSH was undertaken by OSH pursuant to PSRB’s

discharge order.

2. Negligent treatment, testing, and assessment

We next address the allegedly negligent acts

described in paragraph 16(a), (b), and (c), turning our atten-

tion first to (a) and (c), which allege that PSRB and OSH,

“combining and concurring,” were negligent:

“(a) In failing to have and implement a reasonable

medication management program when the defendants

knew, or in the exercise of reasonable care should have

known that Montwheeler had a mental disorder as defined

by law and that he posed a foreseeable threat of harm to

Annita Harmon and society in general;

“* * * * *

“(c) In failing to test or reasonably perform psycholog-

ical testing on Montwheeler when the defendants knew, or

in the exercise of reasonable care should have known that

Montwheeler had a mental disorder as defined by law and

that he posed a threat to Annita Harmon and society in

general.”

On appeal, the state argues that PSRB was not

authorized to “implement a reasonable medication manage-

ment program” for Montwheeler or “test or reasonably per-

form psychological testing” on Montwheeler and, further,

that “once PSRB determined that Montwheeler did not suf-

fer from a mental disorder, OSH had no authority to do so

either.” Plaintiff responds, as we understand her argument,

that the negligence allegations in paragraphs 16(a) and (c)

“arise from [OSH’s] negligent treatment and assessment of

Montwheeler, before the Board’s hearing and decision to dis-

charge him from PSRB jurisdiction and release him.”

We conclude that the trial court erred when it con-

cluded that the state had met its burden to establish, as a

428 Harmon v. State of Oregon

matter of law, that it was entitled to quasi-judicial immu-

nity with regard to the allegations of negligence contained

in paragraphs 16(a) and (c).

With regard to whether the state is entitled to

quasi-judicial immunity for OSH’s conduct, in our view,

the performance of psychological testing and treatment of

mental illness through medication management by OSH

are not “functionally comparable to judicial actions” and do

not “involve decisions normally performed by judges in their

judicial capacity.” Praggastis, 305 Or at 427. Nor are they

acts “primarily concerned with [an] official’s role as a judi-

cial or quasi-judicial officer.” Id.

Although there are perhaps specific acts or omissions

undertaken by OSH that could be encompassed within the

allegations of negligence alleged in paragraph 16(a) and (c)

of plaintiff’s complaint for which the state would be entitled

to rely on the doctrine of quasi-judicial immunity, the doc-

trine does not sweep so broadly that all negligent acts by

OSH in the assessment and treatment of those committed

to its care and under the jurisdiction of the PSRB are immu-

nized, such that the state would be entitled to quasi-judicial

immunity for all such negligent acts. Nor do subsequent acts

by PSRB in its quasi-judicial role—e.g., holding a hearing

and making a release decision—cloak earlier negligent acts

performed by OSH with quasi-judicial immunity, such that

the state is entitled to quasi-judicial immunity for those ear-

lier acts by OSH. Mendive, 102 Or App at 322 (“A judge has

no authority to cloak the future decisions of others with his

own immunity or to accomplish the same thing by signing a

court order after the fact.”).12

With regard to whether the state is entitled to quasi-

judicial immunity for PSRB’s conduct, to the extent that the

state is correct that PSRB is not authorized to implement a

medication management program or perform psychological

testing—and we have no reason to believe that the state is

incorrect—that argument may provide a basis for summary

judgment (or other appropriate motion), but it was not the

basis for the state’s summary judgment motion in the trial

12

We do not foreclose the possibility that some other form of immunity might

be applicable.

Cite as 320 Or App 406 (2022) 429

court. In our view, for the same reasons that state is not

entitled to quasi-judicial immunity for the allegedly negli-

gent conduct undertaken by OSH in paragraphs 16(a) and (c)

of plaintiff’s complaint, it is not entitled to quasi-judicial

immunity if that same conduct was, instead, undertaken by

PSRB, outside of its quasi-judicial role.13

We reach a different conclusion with regard to the

allegation of negligence contained in paragraph 16(b) of

plaintiff’s complaint. That allegation provided that PSRB

and OSH, “combining and concurring,” were negligent as

follows:

“(b) In failing to reasonably assess Montwheeler’s

mental health condition before releasing him on or about

December 7, 2016, when the defendants knew, or in the

exercise of reasonable care should have known that

Montwheeler had a mental disorder as defined by law

and that he posed a foreseeable threat of harm to Annita

Harmon and society in general[.]”

On appeal, the state argues that it was entitled to

quasi-judicial immunity with regard to that allegation of

negligence because “PSRB’s discharge order amounts to its

assessment of Montwheeler’s mental health condition” and

because OSH’s conduct in assessing Montwheeler’s mental

health prior to the PSRB hearing “is part of the PSRB’s judi-

cial function.” Further, the state posits that “OSH did not

act on behalf of Montwheeler or on behalf of the state” when

assessing Montwheeler but, instead, acted as an “adjunct”

to the PSRB.

In our view, insofar as plaintiff’s complaint asserts

that PSRB was negligent in “failing to reasonably assess

Montwheeler’s mental health condition,” the state was enti-

tled to quasi-judicial immunity for that conduct. PSRB’s

release decision, as set forth in the order of discharge, reflects

its assessment of Montwheeler’s mental health, and that

assessment was undertaken by PSRB in its quasi-judicial

13

We do not foreclose the possibility that quasi-judicial immunity might be

available for treatment decisions in some contexts. That is, quasi-judicial immu-

nity may be available for treatment decisions made by quasi-judicial bodies when

operating in a quasi-judicial capacity. But this record does not provide a sufficient

basis to apply the doctrine of quasi-judicial immunity to the specifications of neg-

ligence found in paragraph 16(a) and (c) of plaintiff’s complaint.

430 Harmon v. State of Oregon

role. As described above, the state is entitled to quasi-

judicial immunity with regard to that decision undertaken

by PSRB.

But, in our view, the state was not entitled to quasi-

judicial immunity regarding the allegation that OSH was

negligent in “failing to reasonably assess Montwheeler’s

mental health condition.” We understand the allegation of

negligence contained in paragraph 16(b) to be directed at

OSH’s purportedly negligent assessment of Montwheeler’s

mental health condition, which occurred prior to the PSRB’s

hearing and decision to discharge Montwheeler from PSRB

jurisdiction and release him.

As noted, OSH is a mental health hospital operated

and managed by the Oregon Health Authority and is used

by the state for the “care and treatment of persons with men-

tal illness.” ORS 426.010. Montwheeler was committed to

OSH in 1997, and over the ensuing years, he was assessed

and treated by OSH staff on an ongoing basis. Concerning

the specification of negligence contained in paragraph 16(b)

of plaintiff’s complaint, to the extent that OSH’s negligent

assessment occurred in connection with PSRB’s quasi-

judicial role, OSH (and by extension the state) is, perhaps,

subject to quasi-judicial immunity, but OSH is not entitled

to quasi-judicial immunity for all acts constituting negligent

assessment of an individual’s mental health condition in its

care by virtue of the person being under PSRB jurisdiction,

and by extension, nor is the state.

3. Negligent failure to warn

We next address paragraph 16(i) of the complaint,

which alleged that PSRB and OSH were negligent:

“(i) In failing to warn Annita Harmon that Montwheeler

was in her community and presented a foreseeable risk

of harm to her while he was not subject to state assess-

ment, reporting, monitoring, accountability or control

when the defendants knew, or in the exercise of reasonable

care should have known that Montwheeler had a men-

tal disorder as defined by law and that he posed a fore-

seeable threat of harm to Annita Harmon and society in

general[.]”

Cite as 320 Or App 406 (2022) 431

As noted above, evidence adduced during summary

judgment reflected that what notice people receive about

the release of an individual from PSRB jurisdiction is an

“administrative function” of PSRB, as opposed to a “delib-

erative” function. Consequently, we conclude that the trial

court erred in concluding that the state had met its burden

of proving that, as a matter of law, the doctrine of quasi-

judicial immunity barred the negligence allegation set forth

in paragraph 16(i). See Praggastis, 305 Or at 427 (“Judicial

immunity is granted or withheld on the basis of the nature

of the function being performed * * *.”); see also Beason v.

Harcleroad, 105 Or App 376, 383, 805 P2d 700 (1991) (stat-

ing that in the context of 42 USC section 1983 claims, in

determining whether absolute immunity applies, “a court

must examine the function served by the conduct that gives

rise to a claim for relief and determine whether it is investi-

gative, administrative or quasi-judicial, i.e., integral to the

judicial process”).

On appeal, the state argues that it is entitled

to quasi-judicial immunity with regard to the failure to

warn allegation in paragraph 16(i), because “the only way

to attack the reasonableness of the state’s failure to warn

is to claim negligence or unreasonableness in the PSRB’s

determination that Montwheeler suffered from no mental

disorder, and judicial immunity bars that kind of claim.”

The state’s argument is premised on the state’s view that,

“[o]nce the PSRB determined that Montwheeler did not

suffer from a mental disorder, the state had no reason to

believe that Montwheeler was dangerous enough to require

any warning.”

The chief difficulty with the state’s position is that

Montwheeler was released after PSRB determined that the

“the State did not sustain its burden of proving by a pre-

ponderance of the evidence that * * * Montwheeler continues

to be affected by a mental disease or defect,” not because

PSRB determined that Montwheeler no longer presented

a substantial danger to others. Whether an individual is

“affected by a mental disease or defect” is a different ques-

tion from whether a person is dangerous. ORS 161.346.

Whether or not the failure-to-warn negligence allegation is

432 Harmon v. State of Oregon

ultimately tenable, in our view, the state failed to carry its

burden to show it was entitled to quasi-judicial immunity

as a matter of law in connection with the failure-to-warn

negligence allegation in paragraph 16(i).

V. CONCLUSION

Release of an individual from PSRB jurisdiction

requires that PSRB undertake a quasi-judicial process

resulting in a quasi-judicial decision. The state is entitled

to quasi-judicial immunity with regard to that decision by

PSRB, and the state is entitled to quasi-judicial immunity

when OSH complies with that decision. The state is also

entitled to quasi-judicial immunity when PSRB, through

PSRB’s quasi-judicial process, assesses an individual’s men-

tal health.

However, the state is not entitled to quasi-judicial

immunity for OSH’s negligent treatment through medica-

tion, psychological testing, or assessment of an individual

committed to its care, although quasi-judicial immunity

may immunize the state for certain OSH conduct with

regard to specific acts or omissions. Further, to the extent

PSRB engaged in medication management or psychological

testing outside its quasi-judicial role, the state likewise is

not entitled to quasi-judicial immunity for those acts, which

are not quasi-judicial in nature.14

Finally, given the record in this case, we conclude

that the state is not entitled to quasi-judicial immunity for

PSRB’s and OSH’s failure to warn Harmon of Montwheeler’s

release.

14

As previously noted, plaintiff argues PSRB was not authorized to “imple-

ment a reasonable medication management program” for Montwheeler or “test

or reasonably perform psychological testing” on Montwheeler. As also previously

noted, that was not a basis of the state’s motion for summary judgment, but, if

true, may be a basis for relief in the trial court.

We emphasize that our conclusion in this opinion does not reflect whether

the doctrine of quasi-judicial immunity or some other form of immunity will ulti-

mately bar recovery by plaintiff. It, instead, reflects only a conclusion that, given

the record in this case, our standard of review, and the limited basis of the state’s

motion for summary judgment, the state did not meet its burden for dismissal of

all of the allegations of negligence in plaintiff’s complaint on the basis of quasi-

judicial immunity.

Cite as 320 Or App 406 (2022) 433

Consequently, we conclude that the trial court

erred, in part, when it granted the state’s motion for sum-

mary judgment with respect to all of the specifications of

negligence alleged in plaintiff’s complaint.

Reversed in part and remanded; otherwise affirmed.