*1 21, 1987, Argued June reversed remanded reconsidera- and submitted October (305 433) 29, 1988 January petition tion denied for review denied March al,
VAN DAAM et
Appellants,
al,
HEGSTROM et
Respondents.
A40742)
(85-2146; CA
Before Judges. Rossman,
WARREN, J. concurring part; dissenting part. J.,
Rossman, WARREN, J.
Plaintiffs in this class action are of children who have been found to be within the jurisdiction juve- which, nile court because committed acts if committed by adult, law, an would have been violations of criminal ORS 419.476(1) (a), and who have been committed to a secure train- school or to a ing temporary training camp.1 work and sought statutory obligation state has to enforce children, 109.010, charging them for the custody. care of the children while are in secure Defen- agencies dants are the administrators of the state involved for the children and in caring enforcing support obliga- tion. Plaintiffs seek a declaration that the policy charging for the of children in secure violates various state and federal constitutional provisions injunction an requiring stop money defendants to and to refund already collected. The trial court granted summary judgment for defendants and dismissed the case. We hold that one apparent present program feature of the state’s violates the state constitution. judge
When court commits child to secure *3 but does not enter a order under ORS 419.513, Support the Depart- Enforcement Division of the ment of Justice determines the amount which the pay should for the child’s maintenance and issues an appropri- ate order. See ORS 416.400 to ORS 416.470. The amount of parents’ ability pay, the order is based on the to but in no case greater charged parents is it than the maximum of children equal who are in foster care. That maximum is to the amount pays which the state foster for the care of foster chil- considerably support- dren and is less than the actual cost of custody, education, security ing the child exclusive of personnel capital outlays.2 liability is parents’
Defendants assert the 109.010, general duty, derived from their codified in ORS to children, their minor and that ORS 416.400 to ORS 1 custody.” We refer hereafter these facilities as “secure 2 formerly supporting charged full of a child in secure state the cost custody. predicated present practice charging parents Our decision is on its of of children on the same basis as those of children foster care. institutionalized procedure duty.3 416.470 establishes enforcing constitutionality of Plaintiffs make number attacks of requiring obligation them to fulfill their to their dependent children while those children are in custody. arguments Most do not merit are discussion. Some policy based on defendants’ former of charging the full cost of care; others, institutional such as the claim that defendants’ present is a bill of policy attainder or works a corruption estate, blood and forfeiture of patently frivolous. The arguments discussing worth that the violates the equal privileges and provisions I, immunities of Article section 20,4 Oregon Constitution Equal and the Protection Clause of the Fourteenth Amendment. We turn first to the state constitution. I, 20, prohibits
Article
section
the state from granting
any person
or
persons
privileges
class
or immunities
which are not available to all on the same terms. It is directed
Clark,
against state
231, 236-237,
favoritism. State v.
810,
630 P2d
cert
sub
Oregon,
den
nom Clark v.
4 I, Article section 20: passed granting any privileges, shall be “No law to citizen or class of citizens immunities, which, terms, upon equally belong all the same shall not to cit- izens.”
44 (1987); 47 v. State 89, 304 Or 742 P2d Baillie rev dismissed Educ., 705, 708-709, P2d Higher App Or 719 1330 Board 79 (1986).5 determining exactly what difficulty have some We under the state improper believe is the classification plaintiffs both the stat arguments generally ignore Their constitution. dependent a child and obligation utory to enforce court under ORS 419.513 ability juvenile recognize They a also fail to by direct order. obligation that pay sup care must child parents with children foster plaintiffs seek to collect what and that defendants port It is thus were in foster care. if their children would owe state is argument to understand difficult which special tax on them to institutions levying a excep one private than functions.6 With public have rather compare to other tion, simply do not themselves plaintiffs or immu privileges they allege greater receive classes which do not state an Article they they nities than do. Without I, 20, improper claim of classification. section generally compelling objection, raised
Plaintiffs’ one in their specifically, though cryptically, complaint in their attempt memorandum, do not that defendants trial were convicted from of children who recover a remand from court but a in adult court after of crime adult, secure rather than juvenile, then who are as may young children be as custody.7 See 419.533. Those crimes, they are 15; they have been convicted of although very which is not statute under attack and A which was created class I, separate is not for Article section as a class a class otherwise identifiable Rev., (1986); v. 131-132, Dept. State purposes. Wilson 302 Or Freeland, supra, n at 375 7. concerning maintaining arguments, homes to the costs of such as those Other travelling leaving custody to visit after or the cost their children can return which institutions, properly issues which are children while are in state raise administrative, judicial, legislative consideration. supplement permission argument, the record After oral defendants received support payments suggest collect from fact do with two affidavits as from remanded to adult court on the same basis children affidavits were not court. Those children committed to summary granted, Thus, judgment issue of was an the trial court. at the time before summary judgment improper. question Plaintiffs have was to that existed and fact as point. opportunity on that This is matter which an to submit material not had parties court on remand. can resolve the trial *5 indistinguishable otherwise from children in secure custody groups direct court action. Both live under same conditions receive the same treatment. The remanded be may difference that children transferred to an adult institution after turn 18. require parents
If the state does not of unemanci- pated remanded children to support their children while custody, are in secure it provided has those an immu- to nity provided members of plaintiffs’ class. The distinc-
tion between of remanded children and nonremanded children independently exists statutes plaintiffs challenge. subject two classes are thus I, 20, scrutiny. Article section cannot any We find rational basis the distinction in either the state’s penological pur- poses or interest enforcing parents’ duty its support. suggest any state does not rational basis for it. We hold if plaintiffs’ claim is proven, defendants have violated I, 20, by giving parents Article section of remanded children an immunity which is not available to of nonre- manded children.
Plaintiffs argue also that defendant’s violates equal protection federal requirements. We need not consider validity federal constitutional of the distinction which we I, 20; hold violates perceive Article section we poten no other tal violation of the Fourteenth Contrary Amendment. plaintiffs’ position, classifications; there are no suspect that assuming maintaining family unit is a fundamental right, challenged policy impair does not other than as necessary consequence implementing unchallenged juve nile court jurisdiction over the children. gov There is a clear ernmental enforcing interest a parent’s support obligation, and defendants do not seek to collect more than the amount that obligation. rely heavily C., Plaintiffs on re Jerald Cal Rptr 3d 201 Cal but neither the plurality opinion nor the concurring that case convinces us any there is impropriety Oregon’s statutory federal scheme or in defendants’ reject plain actions. We therefore arguments. tiffs’ federal proceedings
Reversed remanded for further opinion. inconsistent with this
ROSSMAN, J., dissenting concurring part; part. opinion portion majority
I concur with major- I dissent from the plaintiffs’ most of claims. dismissing money from the holding that state collection of ity’s not from oth- in secure but parents of certain minors Arti- privileges and immunities clause of ers would violate the I, cle section 20. with, I that the issue is before begin
To do not believe majority has seized appears It me the court. to build a case assertion in memoranda simple *6 on the majority opinion turns where none exists. factual state collects memoranda the statement cus- of minors in secure money from but to collect from the tody by the court fails by the adult corrections remanded to secure of minors this in their memoran- first made assertion system. Plaintiffs .summary judgment: motion for dum in of their equal practice protection for a “The violates defendants’ payment independent requiring of from individuals reason its distinguishes between two for state function: the a engaged in criminal of minors found to have classes of liability and, basis, imposes financial logical no conduct with on one class alone. over, provides that children who
“ORS 419.533 may be committed a ‘criminal offense’ alleged to have ORS disposition as an adult. to adult court for remanded 137.124(4) years juveniles under 18 requires that all remanded imprisonment to term of who been sentenced a age have custody of Division shall be transferred the the Corrections physical custody. juvenile training a school “Thus, juveniles convicted court and incarcerated adult 137.124(4) training secure schools under the juveniles as to the virtually the situation committed same being of crime result convicted training schools as a state, however, treats their court. reimbursement; unequal purposes this differently for the equal protection the parent’s right treatment violates a adult juveniles, just like relatives of Parents of remanded laws. charged child’s prisoners, are for the costs the confine- ment.”
It is clear plaintiffs whether meant that this dis- parate treatment what the state does in fact it is require majority what statutes the state to do. The treats it as a factual statement. One must be mindful this case comes to us on a summary judgment. Plaintiffs submitted no pleadings, depositions, affidavits other material in the quoted complaint record to statement. The con- tains the bare assertion that “[defendants, charging plaintiffs for the incarceration of their children committed to training schools plaintiffs’ rights violated the to due * * process equal protection repeated Plaintiffs statement at oral argument below and in their briefs to this court. The state did not contend that there were no material in dispute. facts The state never this addressed factual issue argument until court, before this where contended as a fact, matter the state does not in seeking sup- discriminate port.
ORCP provides: 47C judgment “The sought shall be if rendered forthwith file, pleadings, depositions, and together admissions with affidavits, any, if genuine show that there is no issue as to any material moving party fact and that the is entitled ato judgment as a matter of law.” Oregon Elliot v. Mining Co., International 60 Or App P2d 663 parties opposing summary judgment to allege failed sufficient facts in their pleading to bring them- *7 purview selves within the a particular attempted statute but to allege such facts at oral argument on motion for sum- mary judgment. We held:
“Although plaintiffs’ argued summary judg- counsel at the hearing ment damages were entitled to under federal regulations, requires ORCP 47C only the court to consider * * pleadings, depositions, and on file *.” admissions 60 Or App at 479. Pishioneri, Falkenstein v. App 80 Or 1341 rejected we examination of material outside the ORCP 47C list in evaluating summary judgment: parties fact,
“The agreed that there was no issue of material disagree. rely may may but we We do not what be determining on appeal propriety admitted the briefs summary judgment only pleadings, depositions, but 48 by on file and considered the trial
affidavits and admissions App court.” Or 206. 80 at holdings language
Applying rule, I and the would those discriminatory by merely stating particular hold plaintiffs alone, in their could not state brief summary judgment, it is on a not before assert the claim court.1 this
A in a brief is not sufficient to raise a statement genuine of material fact: issue exists, fact courts deciding genuine
“In whether a issue of Before a generally ‘genuine issue’ to mean ‘triable issue.’ read issue, must have evi- party a triable he she sufficient has Seeborg v. Gen- jury dence to be entitled to a determination.” 695, 700, Corporation, Motors P2d 1100 eral 284 Or (1978). competent plaintiffs’ memoranda
Neither is a statement could decide this case. evidence on which we plaintiffs hand, intended to assert the other if On required law to treat certain minors that the state is differently, they wrong. In their brief before court, cited above as cite the statutes this are com- statement, tell us that some minors custody by juvenile courts and that others mitted to secure adult courts. rely on the Administra- Plaintiffs also CSD Service provides: VIII-A-l-III-C, which tion Manual mandatory require to SED are referral “C. Cases which following, placement expected to more than last where days: pro- care paid residential substitute “1. All children (includes Independent Liv- grams Substitute Care Parole custody pursuant , either Division’s ing) Children’s Services voluntary agreement. to a court order or “2. All children committed training schools and MacLaren, Hillcrest, camps.” (Emphasis residing or the at supplied.) summary judgment, Although which was cross motion for the state submitted a entirety, that there were no granted not mean that the state conceded in its that does Gilbert, App theory of the case. McKee
issues of fact as to (1983). P2d 97 *8 They the argue that the use of term means the “committed” applies only manual section to adult court who are minors by Division, the “committed” statute to Corrections “only physical custody transfers the and not the commitment However, the person the schools.” training the cited manual section does not refer to the statute or otherwise “committed,” term simply define so that could refer trans- any case, of physical custody. provision fer consistent is an agency with to seek from of adult court minors.
Finally, plaintiffs principles state that “well settled of law” They apparently factual statement. are referring general family to a rule that members are not required for provide support family other who members However, prisons. cite, find, did nor can I any authority proposition for the that the state does cannot seek from the parents of adult court minors. The by plaintiffs statutes cited state the obvious: Some placed by minors secure there the juvenile court system and are placed system. some the adult court The manual citation also us nothing. question tells comes down to: is the policy “What of the state?” There no competent is evidence in the record to raise that as an issue and, therefore, this court cannot decide merits. merits, I to uphold
Were reach the I would pur- ported practice of the I agree state. with the majority that the ultimate issue whether there is a rational basis for dis- tinguishing between the placed of minors custody by juvenile court and placed minors secure custody However, adult criminal court. I would hold that there rational is a basis for such a distinction. for simple basis the distinction flows from the
fact that some minors been custody by have the adult system, and some have placed by been system. The underlying purposes of confinement under the systems two reflect policies different state policies. The behind the exercise of jurisdiction juvenile adjudica- under system tion are stated in ORS 419.474: provisions 419.597, “The of ORS 419.472 to 419.800 to be liberally 419.839 shall construed to the end child that a coming jurisdiction may within the of the court receive such
care, control, guidance, preferably in the child’s own home, to the welfareand the best interest of as will lead child’s public, is removed from the control and that when child may secure the child of the child the court *9 the child.” care that best meets the needs of system are found custody Minors committed of a custody juvenile to within the of the court the basis be However, “an adjudica- ORS 419.509. finding delinquency. is jurisdiction a that a child is within its tion court juvenile a 419.543. a conviction of crime or offense.” ORS as criminals of minors convicted adult situation Obviously, they convicted of a crime. In is different. quite court, addition, juvenile a court to remand minor to adult criteria, including whether findings variety make on a must over, alleged that the offense either a age the minor is felonies, murder, includ- felony, A B or certain class C Class degree, protection in the third robbery assault and ing 419.533(1). community. ORS of the difference in state Further evidence of crimes in court is that eman- minors convicted adult toward if were minors are to be tried for crimes as adults cipated duty apply and that the ORS 109.010 does short, purposes the different situation. ORS 109.555. systems provide ample juvenile the adult and behind minors and their holding policy treating for a state has a rational basis. See system differently under each Dundon, 271 NE2d Jesmer NY2d NYS2d (1971). equal protection argu-
Finally, plaintiffs’ primary custody for charge of minors in secure ment is that there, them and not of which court sent support, regardless (who duty of adult criminals also have charge the families 109.010) equal protection. This is violates support under purpose of minors and primary for secure because the society. majority rejects this protection is the adults equal problem with protection If it finds no argument. stop and hold that minors incarce- halfway cannot logically be treated the same as system the adult must rated under system. between If the distinctions minors under and the practices system juve- of the adult purposes valid, then the system majority holding implies, as the nile constitutionally valid as results of those distinctions must be applied in adult court and to different treatment minors minors in court. respectfully
Accordingly, I dissent.