Ettner v. City of Medford ( 1998 )

DE MUNIZ, P. J.,

concurring.

I agree with the majority’s holding. I also agree that plaintiff is entitled to prevail in this appeal either if the writ of review is not an “available” remedy, or, even if it is available, it is not an exclusive remedy that precludes this action under ORS chapter 659. I am of the view that the second question is the more important one for purposes of clarifying this area of the law and that the answer to it is far clearer than the answer to the first. Because I conclude that the writ of review cannot be plaintiffs exclusive remedy here, I reach the same result that the majority does for different reasons.¹

ORS 34.020 provides, as relevant, that “any party to any process or proceeding before or by any inferior court, officer or tribunal may have the decision or determination thereof reviewed for errors, as provided in ORS 34.010 to 34.100, and not otherwise.” (Emphasis supplied.) ORS 34.102 contains corresponding language. The city bases its exclusivity argument on the emphasized phrase and on a number of decisions by the Supreme Court and this court.

The case on which the city relies principally is Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988), which it says, along with other cases, “make[s] clear that the writ of review is the exclusive means by which the decision to terminate can be” challenged. The court held in Koch that a disciplinary action against a police officer by the Mayor of Portland, acting in the capacity of police commissioner, was subject to review through the writ of review procedure. However, in its later decision in Shockey v. City of Portland, 313 Or 414, 837 P2d 505 (1992), a common-law wrongful-discharge action, the court rejected an argument by the defendant city that relied on Koch for essentially the same proposition as the city does here. The court said:

“Defendants next contend that the circuit court lacked subject matter jurisdiction over plaintiffs common law wrongful discharge claim because, defendants assert, plaintiffs sole judicial remedy under state law is a writ of review under ORS 34.010 to 34.100. Defendants rely on Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988), to support that assertion. Defendants’ assertion is incorrect, and their reliance on Koch is misplaced.

“The sole issue before this court in Koch v. City of Portland, supra, was whether the decision of the Mayor of the City of Portland, acting in his capacity as Commissioner of Public Safety, to suspend a Portland police officer ‘was made “in the exercise of judicial or quasi judicial functions[.]” ’ Id. at 447. This court held that the suspension decision was a quasi-judicial act and, therefore, was reviewable by writ of review. Id. at 448-49. This court did not hold in Koch, or in any other case that has been brought to our attention, that, because writ of review is available to review a termination decision, the affected employee is precluded from bringing an action for damages based on the common law tort of wrongful discharge.” Shockey, 313 Or at 421-22.

Shockey therefore is clear authority for the proposition that the writ of review is not invariably an exclusive remedy when it is available.² As noted, Shockey involved a common-law wrongful-discharge action, while the present action is one for unlawful employment practices that are actionable under ORS 659.121. To whatever extent that difference leaves Shockey short of directly controlling here, the answer to the exclusivity question is even clearer in this case than it was in Shockey.

Both the writ of review and the unlawful employment practice remedial scheme are governed by statute in this state. Nothing in the writ of review statutes or in the unlawful employment practices statutes, as they have been construed, expressly indicates that they are mutually exclusive in their operation or that a discharged employee is precluded from pursuing both or electing between them. Viewing the relevant statutes in context, I conclude that the availability of a remedy by writ of review—if one is available-does not bar plaintiff from bringing this action under ORS chapter 659.

ORS 659.010(6) defines “employer” for purposes of the provisions of chapter 659 that are relevant here:

“ ‘Employer’ means any person who in this state, directly or through an agent, engages or utilizes the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed. ‘Employer’ also includes any public body that, directly or through an agent, engages or utilizes the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed, including all officers, agencies, departments, divisions, bureaus, boards and commissions of the legislative, judicial and administrative branches of the state, all county and city governing bodies, school districts, special districts, and municipal corporations, and all other political subdivisions of the state.”

Although that definition appears to encompass virtually every imaginable form of governmental employer, the city’s argument would make the remedies of ORS chapter 659 illusory in many or most cases where public employers have allegedly engaged in the discriminatory or other conduct that the chapter proscribes. As illustrated by Koch, the scope of personnel and employment actions by governmental bodies for which the writ of review is available is wide. At the same time, the matters that are reviewable by writ of review are limited, see ORS 34.040, and the relief that the writ of review statutes can provide is neither as broad as the equitable and legal remedies for which ORS 659.121 provides, nor is it targeted at the redress and prevention of discriminatory conduct in the way that the ORS 659.121 remedies are. Compare ORS 34.100; see,also State ex rel Parmenter v. Wallowa County Court, 114 Or App 362, 835 P2d 152, rev den 314 Or 574 (1992).

I conclude that the unlawful employment practices statutes and the writ of review statutes are aimed at wholly different problems, and there is no basis in either for inferring a legislative intent that the applicability of one should exclude the availability of the other as an avenue of redress for the respective employment-related matters with which they deal.

Accordingly, I join in the majority’s disposition of the appeal.

1 It is therefore unnecessary for me to address the first question or the correctness of the majority’s answer to it.

2 The city also relies on Decker v. Clark, 95 Or App 320, 769 P2d 228, rev den 308 Or 405 (1989). Insofar as that case is contrary to Shockey, it does not survive the Supreme Court’s decision.