Sulliger v. Lane County

SCHUMAN, J.,

concurring.

The majority holds that the trial court had jurisdiction in this case because the case did not fall under the writ of review statute, ORS 34.020, and its 60-day time limit for filing; that statute applies only to decisions that are judicial or quasi-judicial, while the county official’s decision refusing to classify plaintiff as a police officer was “ministerial.” I agree that the record as it has been developed so far, interpreted so as to give plaintiff the benefit of all favorable factual inferences, Granewich v. Harding, 329 Or 47, 51, 985 P2d 788 (1999), supports that conclusion. The only relevant fact in the record is plaintiffs assertion in his amended complaint that “on September 29, 1999, Defendant by and through David Suchart, Director of Management Services, notified Plaintiff that Plaintiff‘was not... employed by Lane County as a peace officer.’ ” That statement could mean that Suchart’s decision was completely ministerial; for example, it could mean that Suchart simply looked at plaintiff’s employment records to determine whether he had checked or not checked certain boxes in such a way as to automatically put himself into a “police” or non-police” category. That seems unlikely but not impossible. If, on remand, the parties adduce facts showing *369that plaintiffs request to the county for benefits required the county, by and through Suchart, to make a decision involving the exercise of discretion in applying pre-existing criteria to plaintiffs particular situation, then the decision was quasi-judicial and plaintiffs appeal to the circuit court was not timely. Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 602-03, 601 P2d 769 (1979). The fact that Suchart may have made the decision without providing anything resembling a quasi-judicial process does not make his decision something other than quasi-judicial; rather, it makes his quasi-judicial decision susceptible to the charge that plaintiff was deprived of due process.

It is worth noting that these anachronistic, imprecise, and difficult distinctions have long outlived their usefulness. Nothing has improved since then-Chief Justice Peterson wrote in 1984:

“If a person intended to create an inefficient, unpredictable, ineffective, expensive, unresponsive system for review of governmental acts, he or she would use the system we have in Oregon as a perfect model. Ours is senseless and cries for revision. * * *
“Under our monstrous system, the most intelligent lawyer rarely can advise the client with any measure of confidence. The wealthy client risks his fortune by venturing into the morass of review of a public body’s action. The middle class and the poor can’t afford the risk. Any administrative or judicial procedure which is so complex that intelligent persons cannot know how to bring their claims or objections to the appropriate tribunal is more than suspect; it is incompatible with a system of effective government.
* * * *
“[GJallons of ink, hours of time and millions of dollars (not to mention the unfair results) * * * have senselessly been spent and wasted because Oregon’s system for review of actions of governmental bodies is so bad.”

Forman v. Clatsop County, 297 Or 129, 133-34, 681 P2d 786 (1984) (Peterson, C. J., concurring).