Van Patten v. Washington County
3:15-cv-00891
D. Or.Jun 29, 2017Background
- Plaintiff Melissa Van Patten, personal representative for the estate of Melinda Van Patten, pursues a single remaining state-law claim against Washington County for failure to arrest under ORS § 133.055(2) after an assault/menacing incident.
- County moved to certify five questions of Oregon law to the Oregon Supreme Court under ORS § 28.200 and LR 83-15, arguing those questions are dispositive and lack controlling Oregon precedent.
- The five proposed questions ask whether ORS § 133.055(2)(a) creates a new crime; whether a separate statutory tort exists for failure to investigate under § 133.055(2)(c); timing of the § 133.055(2)(c) factors (pre- or post-probable cause); whether statutory wrongful-death or OTCA limits apply to any § 133.055 claim; and what damages are available and subject to statutory caps.
- The magistrate judge reviewed the Western Helicopter certification criteria (five mandatory, seven discretionary) and determined the first three mandatory criteria were met (authority to certify, question of law, Oregon law), but focused on whether each question was determinative of the cause.
- The court concluded none of the five questions were potentially determinative of Plaintiff’s remaining failure-to-arrest claim because any resolution would not terminate that claim or would only affect admissible evidence or damages limits.
- Accordingly, the court denied the County’s motion to certify the questions to the Oregon Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS § 133.055(2)(a) creates a new crime triggering mandatory arrest | Van Patten proceeds under failure-to-arrest theory; interpretation should allow claim to proceed | County contends statutory text may create a new crime and seeks state guidance | Not determinative; certification denied because either interpretation would still allow the failure-to-arrest claim to proceed |
| Whether an independent statutory tort exists for an officer’s failure to investigate under § 133.055(2)(c) | Plaintiff does not assert a standalone failure-to-investigate claim; her claim derives from failure to arrest | County seeks clarification whether failure-to-investigate is an independent cause of action against governmental body | Not determinative; Plaintiff’s pleaded claim is failure-to-arrest, so question would not terminate the suit; certification denied |
| Whether the § 133.055(2)(c) factors are pre-arrest (probable cause) or post-probable cause (identity) considerations | Plaintiff seeks to admit evidence reasonably ascertainable at time deputies decided not to arrest | County seeks guidance on when factors apply | Not determinative; issue affects admissible evidence but would not dispose of the claim; certification denied |
| Whether wrongful-death statute or Oregon Tort Claims Act damage limits apply to a statutory liability under § 133.055 | Plaintiff’s damages theory tied to the failure-to-arrest claim; limits may be contested but do not end claim | County argues state statutes may limit or supplant damages available for § 133.055 liability | Not determinative; statutory damage limits affect remedy but not the viability of the claim; certification denied |
| If § 133.055 creates statutory liability, what damages are available and are they subject to OTCA or wrongful-death caps | Plaintiff seeks full available recovery for estate/beneficiaries under applicable law | County seeks state clarification on damages and applicability of statutory caps | Not determinative; damages questions do not terminate the claim and thus are inappropriate for certification |
Key Cases Cited
- Western Helicopter Services, Inc. v. Rogerson Aircraft Corp., 311 Or. 361 (1991) (sets Oregon certification criteria)
- White v. Edgar, 310 A.2d 668 (Me. 1974) (defining “determinative” for certification purposes)
- West Linn Corp. Park LLC v. City of West Linn, 534 F.3d 1091 (9th Cir. 2008) (example where state-law questions were determinative and required certification)
- Volvo Cars of N. Am., Inc. v. Ricci, 122 Nev. 746 (Nev. 2006) (holding pretrial evidentiary questions were not determinative and certification inappropriate)