United States District Court, D. Oregon, Portland Division
MELISSA VAN PATTEN, Personal Representative for the Estate of Melinda Van Patten, Plaintiff,
WASHINGTON COUNTY, by and through the Washington County Sheriff's Office, Defendant.
OPINION AND ORDER
V. ACOSTA United States Magistrate Judge.
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.
the issues that the County seeks to certify are dispositive
of plaintiff Melissa Van Patten's
(“Plaintiff”) sole remaining claim.
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
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
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
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 §§
5. Assuming a violation of ORS § 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,