Fay v. City of Portland

*70UNIS, J.

At issue in this case is whether plaintiffs’ claims for personal injury against defendant Multnomah County (county) are barred by absolute judicial immunity. The trial court granted summary judgment for the county1 on plaintiffs’ first and third claims for relief and directed entry of a judgment pursuant to ORCP 67 B.2 The Court of Appeals determined that the county was immune from liability and affirmed the judgment of the trial court. Fay v. City of Portland, 99 Or App 396, 782 P2d 182 (1989). We hold that plaintiffs’ claims are not barred by absolute judicial immunity and, therefore, reverse.

We review the record in the light most favorable to the party opposing the motion for summary judgment, in this case plaintiffs. Seeborg v. General Motors Corporation, 284 Or 695, 699, 588 P2d 1100 (1978). Plaintiffs Ginevra FayBabb and her mother, Jennifer Fay, were assaulted by defendant Hough six days after Hough had been released from the psychiatric unit of the Multnomah County Detention Center (MCDC). At the time of Hough’s release, the county was under a federal court order to limit population at MCDC to relieve jail overcrowding. The court order provided for a release-matrix system that ranked each prisoner’s order of release according to the severity of the crime with which the prisoner was charged. The court order also allowed the sheriff to alter the order of release based upon other specified criteria, such as the inmate’s propensity for violence, the history of arrest or convictions, and his institutional classification at MCDC (i.e., the inmate’s custody status). The federal court *71order required court approval before the criteria could be amended.

At the time of the assault, a special order complying with the court order and promulgated by the Multnomah County sheriff was in effect. The sheriffs special order required corrections officials at MCDC to score each inmate based upon the inmate’s highest ranking charge, any companion charges, any holding charge modifiers,3 the inmate’s custody status, the inmate’s behavior and criminal history. Those inmates with the lowest release-matrix scores were to be released before prisoners with higher scores.

Defendant Hough was given a release-matrix score of 50. That score, however, did not reflect Hough’s institutional classification, i.e., that he was being housed in the psychiatric unit. Under the sheriffs special order, Hough’s custodial status in that unit should have added another 20 points to his score. Additionally, Hough was released before at least six other inmates were released who had release-matrix scores of less than 50. Had the criteria set forth in the court order, as implemented by the sheriffs special order, been followed, Hough would not have been released.

The trial court granted summary judgment in favor of the county, ruling that the county was absolutely immune from plaintiffs’ claims. The Court of Appeals, in an in banc decision, affirmed. Fay v. City of Portland, supra. A majority of that court held:

“Calculation of Hough’s matrix score and authorization of his release were parts of the performance of a judicial function, because only judges are authorized to make release decisions and because the employes who actually released him were acting under the authority of the federal matrix release order. * * * In performing a judicial function, just as in performing any function, the actor can make a mistake or can be simply, simple-mindedly or even stupidly wrong. The function is still judicial.”

99 Or App at 399. Having determined that the county’s actions in releasing Hough were judicial in nature, the Court *72of Appeals concluded that the county was entitled to immunity.

Plaintiffs’ complaint alleges that the county was negligent “in releasing Defendant Hough in that Defendant Multnomah County failed to correctly apply the rules and procedures of its release-matrix system.” Specifically, plaintiffs allege that the county was negligent in two respects: first, because it failed to add points to Hough’s release-matrix score for being housed in the psychiatric unit and, second, because it did not release inmates with scores lower than Hough’s score before it released Hough.

Plaintiffs assert that the county cannot claim absolute immunity against these allegations because its decision to release Hough violated the court order and thereby exceeded the judicial authority given to it by the federal court to release prisoners.

Defendant county responds that it is entitled to absolute immunity from liability arising from the selection of inmates for release. The county argues that immunity is available to “public officials associated with judicial process” who “perform judicial functions.” The county asserts that its corrections officials were performing a judicial function when they decided to release Hough and thus it is protected from liability “regardless of whether there [was] a mistake in the execution of the judge’s order or the rules and procedures of the corrections division.”

This court last discussed judicial immunity4 in Praggastis v. Clackamas County, 305 Or 419, 752 P2d 302 (1988). Praggastis sued Clackamas County, claiming damages for the failure of a court clerk to docket a decree of dissolution as a judgment. The clerk did not docket the decree as a judgment *73because she had been instructed by the presiding judge to docket only documents which specifically contained language identifying the document as a judgment, and the decree did not qualify as such. We concluded that the clerk’s actions were protected from liability by absolute judicial immunity. That decision was based on our determination that the presiding judge’s decision as to what constituted a docketable judgment, even though wrong, was cloaked with immunity. The court held that in adhering to the court’s directive not to docket certain documents, the clerk also was entitled to immunity.

The Court of Appeals and the county oversimplify this court’s holding in Praggastis when they assert that whether absolute judicial immunity is recognized depends on the nature of the function being performed. Although there is language in Praggastis to that effect, its actual holding is that a court clerk who follows the direction of the court in carrying out an authorized judicial function will be immune from liability. Id. at 428-29, 432.5 Compare Charco, Inc. v. Cohn, 242 Or 566, 411 P2d 264 (1966) (party injured by the negligence of a county clerk in failing timely to file an order was entitled to recover against the clerk).

For a public official or employee to have absolute immunity for acts performed under a court order or directive, two criteria must be established. First, the court order or directive must be a permissible exercise of judicial authority.6 Second, the acts must comply with the court order or directive. If the only source of absolute judicial immunity is the court’s directions, and these directions do not authorize the *74public official’s or employee’s conduct, then the official or employee is not protected from liability by absolute judicial immunity.7

There is no contention that the federal court order constitutes an impermissible exercise of judicial authority. We must, therefore, consider whether the acts of the county corrections officials comply with that court order. We hold that the corrections officials exceeded the authority granted to them by the court order in two respects. First, in choosing to release Hough before inmates with lower matrix scores, corrections officials directly disregarded the court’s directive to release those inmates with the lowest matrix scores before releasing prisoners with higher scores. Second, in disregarding Hough’s institutional classification at MCDC, corrections officials failed to add points to Hough’s release-matrix score on the basis of his being housed in the psychiatric unit. The court order gave discretion to the sheriff to consider the inmate’s institutional classification when computing an inmate’s release-matrix score. The sheriff exercised that discretion and, as previously stated, directed corrections officials, through a special order, to determine each inmate’s release-matrix score based in part on the inmate’s housing status. The corrections officials had no authority to disregard the inmate’s institutional classification. The county’s corrections officials, therefore, were not authorized by the court order to release Hough without using the criteria approved by the federal court. The county’s claim for absolute judicial immunity from liability must, therefore, fail.

We conclude that it was not proper for the trial court to grant summary judgment based on absolute judicial immunity. The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.

Plaintiffs took a default judgment against defendant Hough. The City of Portland was voluntarily dismissed as a party.

ORCP 67 B provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

Holding charge modifiers refer to “[t]he number of FTA [failure to appear] warrant charges and the number of Revoke Recog[nizance] warrant charges.”

Immunity for performing acts associated with the judicial process extended to public officers other than judges is often referred to as quasi-judicial immunity. As we stated in Praggastis v. Clackamas County, 305 Or 419, 427, 752 P2d 302 (1988), the distinction between the immunity that protects a judge and the immunity that protects a public officer for performing a judicial function “is a distinction of name and not a distinction of immunity.” We, therefore, choose not to employ the term “quasi-judicial” immunity in the present case.

In Praggastis, this court “indicated that the common-law immunity for judicial * * * acts is part of those immunities preserved for discretionary acts under the OTCA, ORS 30.265(3).” Id.

Praggastis is consistent with other jurisdictions’ rulings that public officials assigned to cany out judges’ orders are shielded from liability in the performance of their duties. See, e.g., Valdez v. City and County of Denver, 878 F2d 1285, 1287-88 (10th Cir 1989) (listing federal cases providing immunity to court officers acting pursuant to court orders). The rationale normally given for such a rule is the public’s interest in requiring strict adherence to judicial decrees. See id. at 1289 (“[public] [officials such as the defendants must not be required to act as pseudo-appellate courts scrutinizing the orders of judges”).

Although a public official or employee will not be entitled to absolute immunity from liability for the consequences of an impermissible exercise of judicial authority, this opinion does not address whether or in what circumstances a claim of qualified immunity maybe established. The only immunity in dispute in the present case at this time is absolute judicial immunity. No claim of qualified immunity has been raised or argued by the parties.

As the Court of Appeals’ dissent in this case noted, Fay v. City of Portland, 99 Or App 396, 400 n 1, 782 P2d 182 (1989), other jurisdictions have declined to extend judicial immunity to public officials who acted beyond the authority granted to them by court orders or statutes. Examples are McCray v. State of Maryland, 456 F2d 1 (4th Cir 1972);Dalton v. Hysell, 56 Ohio App 2dl09, 381 NE2d 955(1978); U.S. Gov. ex rel Houck v. Folding Carton Admin. Committee, 121 FRD 69 (N D Ill 1988).