# Harmon v. State of Oregon

> Court of Appeals of Oregon · June 23, 2022 · 320 Or. App. 406

URL: https://www.frixlaw.com/law-library/cases/10601824

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** June 23, 2022
- **Citations:** 320 Or. App. 406; 514 P.3d 1131
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Egan
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10601824

## How later opinions describe it (automated extraction)

- holding that absolute immunity does not “sweep so broadly . . . that all . . . acts by OSH in the assessment and treatment of those committed to its care and under the jurisdiction of the PSRB are immunized”
- explaining that qualified immunity had not been raised in the state’s motion for summary judgment and that the state’s undeveloped qualified immunity argument on appeal did not provide a basis to affirm
- finding that the PSRB is entitled to absolute immunity for its decision regarding whether to discharge an individual from its jurisdiction
- holding that judicial immunity applied to quasi-judicial decisions made by the Psychiatric Security Review Board
- describing judicial immunity for “judicial functions” and also for a sec- ond category, acts performed under a court order

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10601824. Public record. Not legal advice.