discretionary immunity in Oregon

2018Discretionary immunity applies to policy judgments made by a person or body with governmental discretion that are "decisions involving the making of policy, but not *749 to routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action." Lowrimore v. Dimmitt , 310 Or. 291 , 296, 797 P.2d 1027 (1990).

2018Discretionary immunity applies to policy judgments made by a person or body with governmental discretion that are "decisions involving the making of policy, but not *749 to routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action." Lowrimore v. Dimmitt , 310 Or. 291 , 296, 797 P.2d 1027 (1990).

2015To reiterate, ORS 30.265(6)(c) provides, in part: “Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for: * * * * “(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” (Emphases added.) We summarized the core principles applied in determining the existence of discretionary immunity in Ramirez v. Hawaii T & S Enterprises, Inc., 179 Or App 416, 419 , 39 P3d 931 , rev den, 335 Or 114 (2002): “One of th

2015To reiterate, ORS 30.265(6)(c) provides, in part: “Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for: * * * * “(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” (Emphases added.) We summarized the core principles applied in determining the existence of discretionary immunity in Ramirez v. Hawaii T & S Enterprises, Inc., 179 Or App 416, 419 , 39 P3d 931 , rev den, 335 Or 114 (2002): “One of th

2025Even assuming both those things are true, we would not exercise our discretion to correct any pre- sumed plain error here after considering the discretionary factors in Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991).

2025Even assuming both those things are true, we would not exercise our discretion to correct any pre- sumed plain error here after considering the discretionary factors in Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991).

2024The doctrine applies to decisions that are “the result of a choice involving the exercise of judgment.” Verardo v. Dept. of Transportation, 319 Or App 442, 447 , 510 P3d 983 (2022).

2024The doctrine applies to decisions that are “the result of a choice involving the exercise of judgment.” Verardo v. Dept. of Transportation, 319 Or App 442, 447 , 510 P3d 983 (2022).

2024Discretionary immunity does not attach, however, when an “employee applies an otherwise immune policy to inapplicable circumstances.” Id.

2024Discretionary immunity does not attach, however, when an “employee applies an otherwise immune policy to inapplicable circumstances.” Id.

2022Robbins v. City of Medford, 284 Or App 592, 596 , 393 P3d 731 (2017).

2022Robbins v. City of Medford, 284 Or App 592, 596 , 393 P3d 731 (2017).

2014See State v. Brumwell, 350 Or 93, 111-12 , 249 P3d 965 (2011), cert den, 132 S Ct 1028 (2012) (even assuming that the Sixth Amendment requires jury unanimity on penalty-phase aggravating evi- dence under ORS 163.150(1)(b)(D) as qualified by ORS 163.150(1)(c)(B), the latter is capable of constitutional appli- cation because it does not preclude the trial court from also instructing the jury in that regard to the extent that such an instruction is constitutionally required; accordingly, the statute is not facially unconstitutional); State v. Fanus, 336 Or 63, 70-74 , 79 P3d 847 (2003), cert den,

2014See State v. Brumwell, 350 Or 93, 111-12 , 249 P3d 965 (2011), cert den, 132 S Ct 1028 (2012) (even assuming that the Sixth Amendment requires jury unanimity on penalty-phase aggravating evidence under ORS 163.150(l)(b)(D) as qualified by ORS 163.150(l)(c)(B), the latter is capable of constitutional application because it does not preclude the trial court from also instructing the jury in that regard to the extent that such an instruction is constitutionally required; accordingly, the statute is not facially unconstitutional); State v. Fanus, 336 Or 63, 70-74 , 79 P3d 847 (2003), cert den, 541

2014See State v. Brumwell, 350 Or 93, 111-12 , 249 P3d 965 (2011), cert den, 132 S Ct 1028 (2012) (even assuming that the Sixth Amendment requires jury unanimity on penalty-phase aggravating evidence under ORS 163.150(l)(b)(D) as qualified by ORS 163.150(l)(c)(B), the latter is capable of constitutional application because it does not preclude the trial court from also instructing the jury in that regard to the extent that such an instruction is constitutionally required; accordingly, the statute is not facially unconstitutional); State v. Fanus, 336 Or 63, 70-74 , 79 P3d 847 (2003), cert den, 541

2014See State v. Brumwell, 350 Or 93, 111-12 , 249 P3d 965 (2011), cert den, 132 S Ct 1028 (2012) (even assuming that the Sixth Amendment requires jury unanimity on penalty-phase aggravating evidence under ORS 163.150(l)(b)(D) as qualified by ORS 163.150(l)(c)(B), the latter is capable of constitutional application because it does not preclude the trial court from also instructing the jury in that regard to the extent that such an instruction is constitutionally required; accordingly, the statute is not facially unconstitutional); State v. Fanus, 336 Or 63, 70-74 , 79 P3d 847 (2003), cert den, 541

1997Local No. 290, 323 Or at 566 .

1996The Supreme Court confirmed the limited nature of the holding in Rendler that we have just described: “The decision was based on the discretionary standard in ORCP 33 C that permits a trial judge to allow intervention in a case by a ‘person who has an interest in the matter.’ So understood, it does not inform the present inquiry.” Local No. 290, 323 Or at 566 .

1983See Smith v. Cooper, 256 Or 485, 509-11 , 475 P2d 78 (1970); Stevenson v. State of Oregon, 42 Or App 747, 753 , 601 P2d 854 , rev allowed 288 Or 173 (1979). * * *” 45 Or App at 831 .

1980See Smith v. Cooper, 256 Or 485, 509-11 , 475 P2d 78 (1970); Stevenson v. State of Oregon, 42 Or App 747, 753 , 601 P2d 854 , rev allowed, 288 Or 173 (1979).

1983See Smith v. Cooper, 256 Or 485, 509-11 , 475 P2d 78 (1970); Stevenson v. State of Oregon, 42 Or App 747, 753 , 601 P2d 854 , rev allowed 288 Or 173 (1979). * * *” 45 Or App at 831 .

1980See Smith v. Cooper, 256 Or. 485, 509-11 , 475 P.2d 78 (1970); Stevenson v. State of Oregon, 42 Or.

2025Nonprecedential Memo Op: 339 Or App 192 (2025) 195 we consider in determining whether to correct plain error and concluded that the petitioner’s interest in being present at a PCR hearing where facts are being considered is com- pelling and not outweighed by finality, judicial efficiency, and expenditure of the state’s resources.

2025In Frost, we analyzed the discretionary factors that 1 Dinh v. Zenon, 143 Or App 444, 449 , 923 P2d 1287 (1996) (PCR court had a clear duty to order petitioner to appear when he was in federal immigration custody pending deportation); Smith v. State of Oregon, 78 Or App 485, 488 , 717 P2d 240 (1986) (PCR court erred by not ordering petitioner to be present although petitioner was in custody in California; opinion did not consider possibility of remote appearance).

2025In Frost, we analyzed the discretionary factors that 1 Dinh v. Zenon, 143 Or App 444, 449 , 923 P2d 1287 (1996) (PCR court had a clear duty to order petitioner to appear when he was in federal immigration custody pending deportation); Smith v. State of Oregon, 78 Or App 485, 488 , 717 P2d 240 (1986) (PCR court erred by not ordering petitioner to be present although petitioner was in custody in California; opinion did not consider possibility of remote appearance).

2025In Frost, we analyzed the discretionary factors that 1 Dinh v. Zenon, 143 Or App 444, 449 , 923 P2d 1287 (1996) (PCR court had a clear duty to order petitioner to appear when he was in federal immigration custody pending deportation); Smith v. State of Oregon, 78 Or App 485, 488 , 717 P2d 240 (1986) (PCR court erred by not ordering petitioner to be present although petitioner was in custody in California; opinion did not consider possibility of remote appearance).

2025In Frost, we analyzed the discretionary factors that 1 Dinh v. Zenon, 143 Or App 444, 449 , 923 P2d 1287 (1996) (PCR court had a clear duty to order petitioner to appear when he was in federal immigration custody pending deportation); Smith v. State of Oregon, 78 Or App 485, 488 , 717 P2d 240 (1986) (PCR court erred by not ordering petitioner to be present although petitioner was in custody in California; opinion did not consider possibility of remote appearance).

2023Patton, 18 OTR at 125 ; Pelett v. Dept. of Rev., 11 OTR 364 , 365–66 (1990). 1 The court’s references to the Oregon Revised Statutes (ORS) are to 2021. 2 ORS 314.402(6) states: “The department may waive all or any part of the penalty imposed under this section on a showing by the taxpayer that there was reasonable cause for the understatement, or any portion thereof, and that the taxpayer acted in good faith.” ORDER DISMISSING COMPLAINT TC-MD 230345G 2 of 3 That is because ORS 305.560(1)(a), which governs the procedure for appealing to this court, excludes appeals from “an order, or portion th

2021Accordingly, we affirm the court’s grant of summary judgment on plaintiffs’ tort claims. 7 Below, plaintiffs argued, “So in this situation to the extent they’ve enacted an invalid ordinance then the discretionary immunity would go away because it’s an invalid exercise by definition, invalid exercise of their authority.” Cite as 315 Or App 647 (2021) 667 E.

2021The court found the statutory exception applied because the 1 In FedEx, the taxpayer argued it was entitled to a fee award under the “catalyst theory” because “its efforts in resisting the department led to the abatement.” 20 OTR at 550 , n3 Under the catalyst theory, “where a defendant voluntarily complies with a plaintiff’s requested relief, thereby rendering the plaintiff’s lawsuit moot, the plaintiff is a ‘prevailing party’ [for purposes of attorney fees and costs] if [the] suit is a ‘catalyst’ for the defendant’s voluntary compliance.” Clapper v. Oregon State Police, 228 Or App 172, 179 ,

2021The court found the statutory exception applied because the 1 In FedEx, the taxpayer argued it was entitled to a fee award under the “catalyst theory” because “its efforts in resisting the department led to the abatement.” 20 OTR at 550 , n3 Under the catalyst theory, “where a defendant voluntarily complies with a plaintiff’s requested relief, thereby rendering the plaintiff’s lawsuit moot, the plaintiff is a ‘prevailing party’ [for purposes of attorney fees and costs] if [the] suit is a ‘catalyst’ for the defendant’s voluntary compliance.” Clapper v. Oregon State Police, 228 Or App 172, 179 ,

2021The court found the statutory exception applied because the 1 In FedEx, the taxpayer argued it was entitled to a fee award under the “catalyst theory” because “its efforts in resisting the department led to the abatement.” 20 OTR at 550 , n3 Under the catalyst theory, “where a defendant voluntarily complies with a plaintiff’s requested relief, thereby rendering the plaintiff’s lawsuit moot, the plaintiff is a ‘prevailing party’ [for purposes of attorney fees and costs] if [the] suit is a ‘catalyst’ for the defendant’s voluntary compliance.” Clapper v. Oregon State Police, 228 Or App 172, 179 ,

2021The court applied a discretionary exception to the mootness doctrine found in ORS 14.175, under which a party alleging that an act, policy, or practice of a public body “is unconstitutional or is otherwise contrary to law * * * may continue to prosecute the action and the court may issue a judgment on the validity of the challenged act, policy or practice even though the specific act, policy or practice giving rise to the action no longer has a practical effect on the party if the court determines that: (1) The party had standing to commence the action; (2) The act challenged by the party is c

2020In contrast, in Moe—which involved part of the same statutory instruction contained in ORS 10.095(4), without the additional accomplice corroboration requirement of ORS 136.440—this court applied a discretionary standard of review. 189 Or at 71 .