Barcik v. Kubiaczyk

DURHAM, J.,

concurring.

I concur in the result reached by the majority. I write separately to state the basis for my concurrence with the majority’s conclusion that the Senior plaintiffs’ state law claims are moot.

*202 Senior plaintiffs argue that their claim for declaratory relief will resolve a live controversy regarding the lawfulness of defendants’ past actions and, therefore, is not moot due to Senior plaintiffs’ graduation. That answer is not obvious, because they make no showing that a judgment resolving that controversy will affect, as a practical matter, the rights of any party. They attempt to bolster that argument by suggesting that their prayer for nominal damages defeats defendants’ contention that the dispute is now purely hypothetical.

The majority rejects that argument on the following rationale:

“In Hunter v. City of Eugene, 309 Or 298, 304 , 787 P2d 881 (1990), this court held that a private right of action for damages against a municipality or its employees does not exist directly under the Oregon Constitution, but is limited to extant common-law, equitable, and statutory remedies.

“* * * Under Hunter , Senior plaintiffs’ claims for nominal damages for past deprivations of Oregon constitutional rights can be sustained only if they can make that claim under an extant common-law, equitable, or statutory theory that provides nominal damages as a remedy; they cannot claim nominal damages solely under Article I, section 8.

“Like Article I, section 8, the Declaratory Judgment Act, standing alone, does not provide for awards of nominal damages. * * * Senior plaintiffs’ attempt to combine a constitutional provision (Article I, section 8) and a statutory provision (the Declaratory Judgment Act) into a claim for nominal damages cannot succeed when neither provision, standing alone, provides for an award of nominal damages.” Barcik v. Kubiaczyk, 321 Or at 189-91 (emphasis in original).

Hunter answered in the negative the following certified question:

“ ‘(1) May persons whose rights under Article I, section 8 of the Oregon Constitution were allegedly violated by a municipality and by municipal employees bring an action for damages against the municipality and its employees directly under the Oregon Constitution?’ ” Hunter, 309 Or at 302 .

*203 The court explained:

“[W]e are very reluctant to impose any civil responsibility in the form of damages for violation of such a right, absent specific legislation or clear legislative intent.

“Oregon’s Bill of Rights provides no textual or historical basis for implying a right to damages for constitutional violations. There is no clear indication as to the state, for example, that the legislature or the people intended to waive sovereign immunity in the Oregon Tort Claims Act, ORS 30.260 et seq, to permit such implied private rights of action, and that waiver can only be accomplished by the legislature, . not by this court. See Hale v. Port of Portland, 308 Or 508, 516-17 , 783 P2d 506 (1989). Neither can we impute from the Tort Claims Act any intent on the part of the legislature to create or recognize such a cause of action against the city or its servants.” Hunter, 309 Or at 302-03 (emphasis in original, citations and parenthetical omitted).

Hunter purports to decide whether Article I, section 8, of the Oregon Constitution, affords a basis for “implying” a cause of action for a claim based “directly” on that provision. The majority adopts that reading. Barcik v. Kubiaczyk, 321 Or at 189-90. Hunter did not discuss any issue related to nominal damages. The Hunter court’s answer to the question before it may be debatable, and I leave that potential debate for another day. However, I am concerned that Hunter failed to analyze fully the question whether Oregon citizens may rely on the alleged violation of duties imposed by the Oregon Constitution on public bodies and governmental actors in bringing actions for damages or for protective remedies under the Oregon Tort Claims Act, ORS 30.260 to 30.300.

The Oregon Constitution does not stand alone as a potential source of judicial remedies. By statute, the state expressly has made public bodies liable for their “torts,” within statutory limits. 1 ORS 30.265(1) provides, in part:

“Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties * * *.”

*204 ORS 30.260(8) defines “tort” in this context as follows:

“ ‘Tort’ means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.”

Under that definition, the breach of a noncontractual duty that injures a specific person and that would give rise to a protective remedy is a “tort.” In my view, such duty could include those imposed by certain provisions of the Oregon Constitution, including Article I, section 8.

Whether the breach of a noncontractual duty also gives rise to a damages remedy depends primarily on the nature of the harm done, not on the nature of the duty that the actor violates. See Urban Renewal Agency v. Lackey, 275 Or 35, 38 , 549 P2d 657 (1976) (“Any breach of a legal duty resulting in damages, other than those duties created by contract, is a tort, whether that duty is imposed by the common law or by statute.”). If public actors falsely arrest, imprison, and physically injure a citizen without justification and in violation of constitutional standards, it is easy to recognize that damages are an appropriate remedy. Similarly, if students are physically assaulted or their property injured in the course of exercising their state constitutional right to speak, write, or print freely on any subject, the resulting injury is remediable through money damages. Under those circumstances, the defendants could not claim immunity if they acted unconstitutionally.

It is less clear that the violation of other state constitutional rights would lead so easily to a damages remedy. An example would be the failure to appoint counsel for an indigent defendant who is never questioned, booked, or prosecuted. What is absent there is not a constitutional violation, but a harm that calls for compensatory damages.

If the courts award money damages for the intentional invasion of a person’s interest in person, property, or reputation, I see no reason why a public actor’s intentional invasion of the same interest, in violation of constitutional rights protected by Article I, section 8, should not equally *205 support a claim for damages. In that circumstance, a violation of a constitutional right can serve as the predicate for a damages remedy. It is difficult to read ORS 30.260(8) and 30.265(1) to mean anything else.

In the present case, Senior plaintiffs assert only a claim for nominal damages. Because the focus of the case at trial was different, Senior plaintiffs did not have an occasion to brief or argue the effects of Hunter , or the Oregon Tort Claims Act and its definition of “tort,” on their claim for nominal damages. Understandably, they do not attempt to interject those issues here. Under those circumstances, I concur in the court’s judgment.

Fadeley and Unis, JJ., join in this concurring opinion.

Other statutory sources of judicial remedial power include the writ of review, ORS 34.010 etseq, the writ of mandamus, ORS 34.105 et seq, and the Administrative Procedures Act, ORS 183.310 to 183.550.