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Van patten v. Washington County

United States District Court, D. Oregon, Portland Division

June 29, 2017

MELISSA VAN PATTEN, Personal Representative for the Estate of Melinda Van Patten, Plaintiff,
v.
WASHINGTON COUNTY, by and through the Washington County Sheriff's Office, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA United States Magistrate Judge.

         Introduction

         Defendant Washington County (“the County”) moves to certify five questions of law to the Oregon Supreme Court, pursuant to ORS § 28.200, which allows certification of dispositive questions of Oregon law. (ECF No. 115.) The court finds this motion appropriate for disposition without oral argument, pursuant to Local Rule of Civil Procedure 7-1(d)(1). The motion is denied.[1]

         None of the issues that the County seeks to certify are dispositive of plaintiff Melissa Van Patten's (“Plaintiff”) sole remaining claim.

         Legal Standard

         Local Rule of Civil Procedure 83-15 establishes the substantive and procedural criteria for certification. Substantively, the certification criteria stated in Western Helicopter Services, Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 364-71 (1991), govern when certification is appropriate. Western Helicopter established five mandatory criteria and seven discretionary criteria. Id. Procedurally, LR 83-15 requires the moving party to file a memorandum addressing the Western Helicopter factors. The assigned trial judge then determines whether certification is appropriate. If the assigned trial judge determines that certification is appropriate, he or she makes a recommendation to the Chief Judge. The Chief Judge then confers with the other members of the court, and certifies the question if the court concurs with the recommendation to certify.

         The mandatory criteria are (1) statutorily authorized certifying court, (2) a question of law, (3) the law at issue is Oregon law, (4) the question must be determinative of at least one claim in the case, and (5) a lack of controlling Oregon precedent. W. Helicopter Serv., 311 Or. at 364-65. Of these, the certifying court may objectively determine the first four issues, while the fifth issue is a subjective judgment. Id. at 366. The discretionary factors, analyzed by the Oregon Supreme Court after certification are (1) an independent assessment by the Oregon Supreme Court of whether controlling precedent exists, (2) whether the certifying court has applied Pullman abstention, (3) comity between federal and state courts, (4) importance of the question, (5) an actual dispute regarding the issue, (6) the procedural posture of the case, with cases ready for trial best suited for certification, and (7) the Supreme Court's ability to restate the questions. Id. at 366-71.

         Analysis

         The County moves for certification of five questions of law:

1. Whether ORS § 133.055(2)(a) reflects the legislature's intent to create a new crime, other than assault or menacing, to trigger mandatory arrest when a “person has placed the other in fear of imminent serious physical injury”?
2. In addition to the failure to arrest under ORS § 133.055, is there an independent right of action for the “failure of an officer to investigate” as a new statutory tort against a governmental body when an officer fails to investigate the factors under ORS § 133.055(2)(c) as part of the determination of whether probable cause exists?
3. Do the factors under ORS § 133.055(2)(c) (A) through (D) only apply, post-probable cause, to the officer's determination of the correct person to arrest or are they factors that the officer must consider as part of the pre-arrest, initial determination of whether probable cause exists?
4. If a violation of ORS § 133.055 is grounds for an independent right of action as a statutory tort, does that statutory liability supplant or supplement the sole remedy for wrongful death actions under ORS §§ 30.020-.100?
5. Assuming a violation of ORS ยง 133.055 is grounds for an independent right of action, what damages are available to the personal representative or beneficiary of a claimant's estate for that violation and are those damages subject to the limits of the Oregon Tort Claims Act, ORS ...

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