Smith v. Washington County

43 P.3d 1171, 180 Or. App. 505, 2002 Ore. App. LEXIS 551
CourtCourt of Appeals of Oregon
DecidedApril 10, 2002
DocketC98-0531CV; A106905
StatusPublished
Cited by16 cases

This text of 43 P.3d 1171 (Smith v. Washington County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Washington County, 43 P.3d 1171, 180 Or. App. 505, 2002 Ore. App. LEXIS 551 (Or. Ct. App. 2002).

Opinion

*507 LINDER, P. J.

Plaintiffs brought this action seeking a declaration that certain security procedures implemented as a condition of entry into the Washington County court facilities, together with the order of the presiding judge authorizing those procedures, violate Article I, section 9, of the Oregon Constitution. The trial court granted defendants’ motion for judgment on the pleadings pursuant to ORCP 21 B, concluding that, under the allegations of the complaint, the challenged procedures are constitutional. Plaintiffs appeal from the resulting judgment, primarily challenging the grant of defendants’ motion for judgment on the pleadings. We conclude that, based on the allegations of the complaint, the security searches are constitutional. We therefore affirm.

We review the trial court’s disposition of the motion for judgment on the pleadings to determine whether the “allegations in the pleadings affirmatively show that plaintiffs cannot prevail as a matter of law.” Withers v. State of Oregon, 133 Or App 377, 382, 891 P2d 675, rev den 321 Or 284 (1995). In that regard, we accept the following well-pleaded allegations of fact in plaintiffs’ complaint as true. Slogowski v. Lyness, 324 Or 436, 439, 927 P2d 587 (1996).

Plaintiffs are citizens of the State of Oregon who, from time to time, enter the courthouse and Justice Services Building located in Hillsboro, Oregon, for a variety of reasons, including to transact business. Defendants are Washington County (the county), a municipal corporation and county government in the State of Oregon; Olympic Security Services, Inc. (Olympic), a Washington corporation; and the Honorable Gayle A. Nachtigal (Judge Nachtigal), the “Presiding Judge of the Circuit Court of the State of Oregon for Washington County.” 1

Plaintiffs’ complaint sets forth two claims. In the first, the key allegations are these: Pursuant to a contract *508 between the county and Olympic, security searches for weapons and contraband are conducted of all people who enter the courthouse complex buildings, except employees and certain others who are exempted from the search policy by Judge Nachtigal. The contract between the county and Olympic “was drafted by, is administered by[,] and is subject to modification and amendment by the Washington County Sheriffs Office.” “[A]ll but specifically excepted persons entering the Courthouse complex, in the absence of probable cause, reasonable suspicion, or any other lawful or constitutional justification or basis, are seized, stopped, detained and subjected to intrusive and extensive searches[.]” Individuals are required “to walk through highly sensitive electronic magnetic devices which are activated by small amounts of metal”; to submit their belongings, briefcases, and other parcels to employees of Olympic, who use x-ray machines and conduct hand searches of their persons, effects, and clothing; and “to hand over for inspection all belongings and garments as demanded by Olympic employees.” If a person seeking entrance to the courthouse refuses to consent to the conduct as described above, Olympic employees instruct that he or she may not enter. If the person enters contrary to such an instruction, Washington County deputy sheriffs are summoned to order that person to leave the courthouse on pain of arrest for criminal trespass. 2 As part of their first claim for relief, plaintiffs specifically allege that the contract between the county and Olympic, pursuant to which the security procedures are performed, “is not the legislative product of a politically accountable body.”

Plaintiffs’ second claim for relief is aimed at the judicial order directing that the security procedures be implemented. In that claim, the key allegations are these: Judge Nachtigal “issued and filed ‘General Order 130’ requiring and ordering that all but specifically excepted persons submit *509 their persons and belongings to seizure and search upon command by the employees of Olympic Security Services, Inc.” The order was issued “without an affidavit alleging facts amounting to probable cause or a hearing from which a court might find probable cause,” “describes no particular individual to be searched,” and requires “all persons, other than those specifically excepted by the Presiding Judge, to submit themselves and their belongings to seizure and search by persons who are not commissioned law enforcement officers upon other than individualized suspicion and without probable cause.” The order is a “ ‘general search warrant’ ” and is “unlawful and in violation of [the] Oregon Constitution including the provisions of Article I, [s]ection 9.”

On the basis of those allegations, plaintiffs sought declaratory and injunctive relief. In particular, they requested a judgment:

“1. Declaring the conduct and practices of the Defendants Olympic Security Services, Inc., and Washington County, and The Hon. Gayle A. Nachtigal, and each of them, as set forth above to be unlawful and in violation of the provisions of the Oregon Constitution; and
“2. Permanently enjoining and prohibiting Defendants Olympic Security Services, Inc., Washington County, and The Hon. Gayle A. Nachtigal from any and all stopping, detaining, searching and seizing of citizens without individualized suspicion and probable cause consistent with the provisions of the Oregon Constitution, including Article I, [s]ection 9; and
“3. Declaring ‘General Order 130’ to be unlawful and in violation of the provisions of the Oregon Constitution, including Article I, [s]ection 9; and
“4. Permanently enjoining the Hon. Gayle A. Nachtigal, Washington County, and Olympic Security Services, Inc. from further enforcing or in any way seeking to have others enforce the terms and directives of‘General Order 130’; and
5. For the costs and disbursements incurred herein.”

*510 In their amended answers, defendants denied many of plaintiffs’ allegations, and they pleaded four affirmative defenses: (1) plaintiffs have an adequate remedy at law; (2) there is no justiciable controversy; (3) plaintiffs lack standing; and (4) the court should exercise its discretion to deny the complaint because it is overly broad. Judge Nachtigal moved for judgment on the pleadings based on the first two affirmative defenses, and the county and Olympic orally joined that motion. Judge Nachtigal also moved for summary judgment, arguing, among other points, that the searches were constitutional as a matter of law because they were either valid administrative searches or were based on the consent of persons entering the courthouse. The motion for judgment on the pleadings incorporated the memorandum that Judge Nachtigal filed in support of the motion for summary judgment, thus effectively expanding the legal grounds for the motion for judgment on the pleadings to include the arguments that the searches were valid as administrative or consent searches.

At the hearing on that motion, the parties and the court focused primarily on defendants’ assertion that, under State v.

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Bluebook (online)
43 P.3d 1171, 180 Or. App. 505, 2002 Ore. App. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-washington-county-orctapp-2002.