Westfall v. State of Oregon ( 2014 )

144 April 10, 2014 No. 18
IN THE SUPREME COURT OF THE
STATE OF OREGON
CHESTER C. WESTFALL,
Respondent on Review,
v.
STATE OF OREGON,
by and through the actions of its agency
the Oregon Department of Corrections,
Petitioner on Review.
(CC 07C23164; CA A140772; SC S060416)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 8, 2013.
Erin C. Lagesen, Assistant Attorney General, Salem,
argued the cause for petitioner on review. With her on the
brief were Ellen F. Rosenblum, Attorney General, and Anna
M. Joyce, Solicitor General.
Richard L. Cowan, Salem, argued the cause and filed the
brief for respondent on review.
LINDER, J.
The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
______________
*  Appeal from Marion County Circuit Court, Claudia M. Burton, Judge. 247
Or App 384, 271 P3d 116 (2011).
Cite as 355 Or 144 (2014) 145
Plaintiff filed a complaint against the state, alleging that the Department of
Correction negligently miscalculated his prison term and, because of the miscal-
culation, falsely imprisoned him for 13 months. The state, moved for summary
judgment, arguing that the department’s employees who computed plaintiff’s
total prison term had correctly applied the department’s written policy, and the
choices reflected in the written policy were entitled to discretionary immunity
under ORS 30.265(6)(c). The trial court granted the state’s motion for summary
judgment. The Court of Appeals reversed. Held: A discretionary policy choice by
upper-level governmental officials does not lose the protection of discretionary
immunity under ORS 30.265(6)(c) whenever lower-level employees apply that
policy to particular circumstances. Rather, the Court reaffirmed the “general
principle that employees who are following the explicit orders of their superiors
who have exercised discretionary authority in making such decisions will not be
answerable for performing their duty.” Praggastis v. Clackamas County, 305 Or
419, 429, 752 P2d 302 (1988). The Court further concluded that the department’s
policy did not, as plaintiff argued, require the department’s employees to make
choices about how to structure sentences — sentences that, in plaintiff’s view, are
not protected by discretionary immunity. Rather, the text of the policy, in context,
directs the department’s employees how to interpret a judgment of conviction
that imposes a consecutive sentence and leaves the employee with no choice to
make in calculating a prison term like plaintiff’s.
The decision of the Court of Appeals is reversed, and the matter is remanded
to the Court of Appeals for further proceedings.
146 Westfall v. Dept. of Corrections
LINDER, J.
Plaintiff brought a civil action against the State of
Oregon, alleging that the Department of Corrections had
kept him in prison longer than his lawful term of incarcera-
tion. Specifically, plaintiff alleged that the department had
extended his prison term unlawfully by having a sentence
run consecutively to another sentence imposed the same
day, rather than running consecutive to a sentence that
had been imposed previously. The state moved for summary
judgment, asserting that it was entitled to discretionary
immunity under ORS 30.265(6)(c) because the department’s
written policies required its employees to treat the sentence
as consecutive to other sentences imposed the same day.1
The trial court agreed and granted summary judgment for
the state. The Court of Appeals reversed on appeal, con-
cluding that any discretionary immunity that applies to the
department’s decision to adopt the written policies did not
also apply to those employees who carried out the policies.
Westfall v. Dept. of Corrections, 247 Or App 384, 392-93, 271
P3d 116 (2011). On review, we conclude that the Court of
Appeals erred in its analysis, and we reject plaintiff’s alter-
native argument that the actions of the department and
its employees are not of a kind protected by discretionary
immunity. We remand, however, for the Court of Appeals
to consider other arguments by plaintiff that the Court of
Appeals did not address.
I.  BACKGROUND, FACTS, AND
PROCEDURAL POSTURE
On review, we examine the trial court’s grant of
summary judgment to determine whether there was no gen-
uine issue of material fact such that the state was entitled
1
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.”
In 2011, the legislature amended ORS 30.265. Or Laws 2011, ch 270, § 1. Those
amendments do not affect our analysis. They did, however, renumber the rele-
vant subsection from ORS 30.265(3)(c) to ORS 30.265(6)(c). For simplicity, we
will refer to the statute throughout this opinion by its current numbering.
Cite as 355 Or 144 (2014) 147
to judgment as a matter of law. See ORCP 47 C; Hughes
v. Wilson, 345 Or 491, 500-01, 199 P3d 305 (2008). In this
case, the facts are essentially undisputed. Before we turn to
the particular events at issue, however, we first describe in a
general way how prison terms are calculated, because doing
so is helpful context for the particular calculation made in
this case.
A.  Overview of Sentences and Sentence Calculation
As noted, this case arose because plaintiff dis-
puted the department’s calculation of the amount of time
that plaintiff was required to serve in prison as a result of
multiple sentences. For that purpose, there are two differ-
ent types of sentences: concurrent and consecutive. See ORS
137.123 (so providing).2 Concurrent sentences are served at
the same time, while consecutive sentences are served in
sequence, one following the other. See generally Black’s Law
Dictionary 1485 (9th ed 2009) (defining “concurrent sen-
tences” and “consecutive sentences”). By statute, sentences
are concurrent unless the sentencing court specifically
orders otherwise. ORS 137.123(1).
If a prisoner has multiple sentences that are all con-
current, then the length of time that the prisoner spends
in prison will essentially be determined by the longest sen-
tence. That is so because, in effect, all the sentences are
running at the same time, so the shorter sentences will have
been served before the final release date.
The trial court may, however, impose a sentence
consecutive to any combination of existing sentences. See
ORS 137.123(1) (sentence may be “concurrent or consecutive
to any other sentence which has been previously imposed
or is simultaneously imposed”). Thus, a court may order a
particular sentence to be served consecutive to some or all
prior sentences, concurrent with some or all prior sentences,
2
ORS 137.123(1) provides:
“A sentence imposed by the court may be made concurrent or consecutive
to any other sentence which has been previously imposed or is simultane-
ously imposed upon the same defendant. The court may provide for consecu-
tive sentences only in accordance with the provisions of this section. A sen-
tence shall be deemed to be a concurrent term unless the judgment expressly
provides for consecutive sentences.”
148 Westfall v. Dept. of Corrections
or both consecutive to some sentences and concurrent with
others. No law prescribes the precise terminology that a
court must use in imposing a consecutive sentence, however.
As a result, courts may—and in fact do—use widely vary-
ing terminology to describe the extent to which a particular
sentence is consecutive, concurrent, or both.
The legislature has entrusted to the Department of
Corrections (at least in the first instance) the task of calcu-
lating a prisoner’s prison term based on the variable text
that trial courts often use in their judgments to impose
concurrent and consecutive sentences. ORS 137.320(3).3 In
2004, the department promulgated an extensive written pol-
icy directing how a prison term analyst (PTA) should calcu-
late a prisoner’s term of incarceration. That policy contains
two sections relevant to this case. The first section, which
addresses “facially invalid and/or problem judgments,” pro-
vides that the PTA will make all calculations based on the
judgment alone, although in some circumstances the PTA
must bring apparent problems with the judgment to the
attention of a supervisor or the court. Specifically, the policy
states:
“Occasionally, courts issue judgments that do not com-
ply with statutory requirements. If a PTA becomes aware
of a problem with a judgment, particularly a problem that
might result in a violation of the inmate’s rights or a depri-
vation of a liberty interest of the inmate, the PTA must
immediately bring the problem to the attention of a lead-
worker or technician.
“Such problems include clerical mistakes or oversights
(including typographical errors) as well as substantive
errors in the application of sentencing laws. Where an error
in a judgment appears to be a clerical error, the PTA will
contact the court for clarification and to allow the court the
3
ORS 137.320(3) provides:
“Upon receipt of the information described in subsection (1) or (2) of this
section, the Department of Corrections shall establish a case file and compute
the defendant’s sentence in accordance with the provisions of ORS 137.370.”
The cross-referenced subsections, ORS 137.320(1) and (2), provide that the sher-
iff will deliver a defendant to the department for its custody, together with copies
of the relevant entries of judgment and a statement or statements about any time
already served.
Cite as 355 Or 144 (2014) 149
opportunity to correct the error. The PTA may contact the
court by telephone, but will follow-up with written confir-
mation or notification to the court of the problem.
“The PTA must also request that the court send an
amended judgment. The PTA must not rely solely on verbal
instructions regarding changes to a written judgment.
“Note: In order for [the department] to accept a judg-
ment as valid, the judgment must be received from an official
source, such as a court, District Attorney, Board of Parole
and Post Prison Supervision (BPPPS), community correc-
tions office, etc. [The department] may not make adjust-
ments to inmate’s sentences based on a judgment received
from a defense attorney, inmate, or other unofficial source.
Additionally, [the department] may not accept letters or
verbal instructions from the court, District Attorney, or
other sources for use in sentence calculation. [The depart-
ment] is bound by the judgment and must receive amended
judgments before any changes can occur.”
(Emphases in original.)
The second relevant part of the policy describes
various ways in which a judgment of conviction and sen-
tence could describe a consecutive sentence and directs the
PTA how to calculate the term of imprisonment. The policy
states:
“1. ‘Consecutive to Sentences Previously Imposed’
“A consecutive sentence begins on the date of comple-
tion of the preceding sentence in the sequence of sentences.
If the court orders that a sentence be served ‘consecutive
to sentences previously imposed,’ the sentence will be set
up as consecutive to any other sentences imposed the same
date or on an earlier date. (Sentences imposed the same
date will be considered as ‘previously imposed.’) * * *
“2. ‘Consecutive to Sentences Simultaneously Imposed’
“If the court orders that a sentence be served ‘consecu-
tive to sentences simultaneously imposed,’ the sentence will
be set up as consecutive to any other sentences imposed the
same date. (Sentences imposed on an earlier date will not
be considered ‘simultaneously imposed.’)
150 Westfall v. Dept. of Corrections
“3. ‘Consecutive to Sentences Currently Being Served’
“If the court orders that a sentence be served ‘consecu-
tive to sentences currently being served,’ the sentence will
be set up as consecutive to any other sentences imposed the
same date or on an earlier date. (Sentences imposed the
same date will be considered as [‘]currently serving.’)”
(Emphases in original.) 4
The policy also provides that a sentence that is
consecutive to more than one sentence will be calculated to
begin when the last of those other sentences ends:
“If a sentence is consecutive to more than one other sen-
tence, the PTA will determine which of the other sentences
will be completed last and enter the consecutive sentence[ ]
as CS [consecutive] to that sentence.”
B.  Facts of Plaintiff’s Case
With that background, we turn to the particular
facts of plaintiff’s sentences. Preliminarily, we note that
plaintiff’s sentences formed a complicated mosaic of at least
19 different sentences arising from seven criminal cases
heard in four counties. Because a number of those sentences
did not bear on the proper calculation of plaintiff’s term of
imprisonment, we will omit any discussion of them here.
Plaintiff was serving a prison sentence when he
escaped from custody. In July 2001, after he was recaptured,
the Marion County Circuit Court sentenced plaintiff to a
20-month consecutive sentence for second-degree escape II.
Because the sentence was “consecutive to any sentence pre-
viously imposed,” plaintiff’s prison term would end when
that 20-month sentence was served.
In September 2002, plaintiff received six prison sen-
tences in a Josephine County Circuit Court case. Those sen-
tences are the essential source of plaintiff’s complaint here.
4
The policy goes on to address six other possibilities that have to do with the
substance of the sentence, rather than the particular phrasing used by the trial
court in imposing the sentence. Those additional possibilities are: (1) sentencing
guideline sentences consecutive to a matrix sentence; (2) matrix sentences con-
secutive to a matrix sentence; (3) sentences consecutive to a parole revocation;
(4) sentences consecutive to a post-prison supervision revocation; (5) matrix sen-
tences consecutive to a sentencing guideline sentence; and (6) matrix sentences
consecutive to an out-of-state sentence.
Cite as 355 Or 144 (2014) 151
Four of the sentences were concurrent, and two were con-
secutive. Plaintiff received 12-month concurrent sentences
on Counts 14 and 22, and 13-month concurrent sentences on
Counts 10 and 46. On Count 49, however, the judgment pro-
vided that the trial court sentenced plaintiff to 26 months
“consecutive to all previously imposed sentences.” Finally,
on Count 5 the trial court sentenced plaintiff to 10 months
consecutive to the sentence imposed in Count 49.
At that time, then, plaintiff’s term of imprisonment
would have ended when he completed three consecutive
sentences sequentially: The 20-month Marion County sen-
tence, the 26-month sentence for Josephine County Count
49, and the 10-month sentence for Josephine County Count
5. All plaintiff’s other outstanding concurrent sentences—
including the four concurrent sentences in Josephine
County—had no effect on the term of imprisonment, at
least at that time. They were running concurrently with the
20-month Marion County sentence and would have expired
before the Marion County sentence was completed.
In 2005, however, the 20-month Marion County
escape sentence was vacated and remanded. On resentenc-
ing, the new sentence in that case was so reduced that plain-
tiff had already completed that sentence.
The department thus had to recalculate plaintiff’s
remaining term of imprisonment. In particular, the depart-
ment needed to determine which sentence would, when
it expired, trigger the beginning of plaintiff’s 26-month
consecutive sentence for Josephine County Count 49. The
department’s employees interpreted the department’s
written policy to dictate that the words “consecutive to all
previously imposed sentences” in the Josephine County
judgment for Count 49 meant consecutive not only to sen-
tences imposed previously, but also consecutive to sen-
tences imposed the same day. Because the longest outstand-
ing remaining sentences that met those criteria were the
two 13-month sentences on Counts 10 and 46 imposed by
the Josephine County Circuit Court on the same day, the
department recalculated plaintiff’s term of imprisonment so
that the 26-month sentence on Count 49 would start when
the 13-month sentences on Counts 10 and 46 expired. Thus,
152 Westfall v. Dept. of Corrections
plaintiff would serve a total of 49 months on his Josephine
County sentences: 13 months on Counts 10 and 46, followed
by 26 months on Count 49, followed by 10 months on Count 5
(with the two 12-month sentences in Counts 14 and 22 run-
ning concurrently).
When plaintiff learned of the department’s recalcu-
lation, he objected. He asserted that the Josephine County
Circuit Court had not intended the 26-month sentence in
Count 49 to run consecutively to any sentence entered that
same day. The court, he maintained, had intended the sen-
tence to be consecutive to only the sentences imposed in
earlier cases. Plaintiff noted that his plea agreement in the
Josephine County case specifically stated that he would only
serve a total of 36 months for the sentences imposed on that
case.5 Plaintiff thus contended that the Josephine County
Circuit Court had intended the total time served in that
case to be the 26-month consecutive sentence on Count 49
plus the 10-month consecutive sentence in Count 5, with all
the other sentences being concurrent.
The department refused to change its calculations.
By a written memo, a PTA informed plaintiff that the depart-
ment was bound by the written text of the Josephine County
judgment and that plaintiff would need to seek an amended
judgment before the department could take action:
“Unfortunately I cannot structure your sentences based
on the plea agreement. The wording in the plea agreement
[for Count 49] states the sentence would be ‘consecutive to
any other sentence.’ This is the same as the wording in the
judgment. I see the intent of the court was to make your
sentence a total of 36 months. If you will note in the line [of
the plea agreement] above * * * it states that the court is not
required to accept or comply with any agreement between
[plaintiff] and the District Attorney.
“I must abide by the wording in the judgment. Until
an amended judgment is received from the court your sen-
tences will remain as they are[.]”
5
The specific text from the plea agreement states: “The effective time of
incarceration would be 36 months consecutive to any time or sentence I am cur-
rently serving.”
Cite as 355 Or 144 (2014) 153
Before receiving that memo, however, plaintiff had
already filed a formal motion with the Josephine County
Circuit Court asking it to amend its judgment to indicate
that the 26-month sentence for Count 49 would not be con-
secutive to the other sentences imposed in that case on the
same day.6 That motion was still pending when the depart-
ment advised plaintiff to seek an amended judgment from
the circuit court. Plaintiff sent a copy of the department’s
memo to the circuit court. Some time later, the court denied
the motion to amend the judgment without explanation. The
department released plaintiff in December 2005, at which
point plaintiff had served his prison term as calculated by
the department.
C.  Plaintiff’s Action Against the State
In December 2007, plaintiff filed a complaint against
the state. In it, he alleged two causes of action: negligence
(in the calculation of his sentence) and false imprisonment.
He maintained that the state, by interpreting his Josephine
County sentences to require him to serve 49 rather than
36 months, had unlawfully imprisoned him for an extra
13 months.
After answering the complaint, the state moved
for summary judgment. It asserted that the department’s
employees who computed plaintiff’s total sentence had
correctly applied the department’s written policy and the
choices reflected in the written policy were entitled to dis-
cretionary immunity under ORS 30.265(6)(c).7
Plaintiff opposed the motion. He argued, among other
points, that the PTA’s decision about how to calculate the
6
Specifically, plaintiff asked the court to amend the judgment to state that
the sentence was “ ‘consecutive to all previously imposed consecutive sentences,’
or some other similar language.”
7
The state added that, even if one accepted plaintiff’s theory of how the
Josephine County sentences should have been applied, he had not been unlaw-
fully held for 13 months, but only for two. In July 2002, plaintiff had been con-
victed in Douglas County and sentenced to three 13-month concurrent sentences.
If the 26-month sentence for Josephine County Count 49 should have run con-
secutively to only sentences entered in previous cases, the state contended, then
the 26-month sentence would have begun when the Douglas County sentences
ended. The net result would have been that plaintiff would have been released on
November 9, 2005, rather than his actual release date of December 30, 2005.
154 Westfall v. Dept. of Corrections
sentence was a ministerial one, not the sort of exercise of
discretion entitled to immunity. Plaintiff also asserted that
the department’s policy could not override the Josephine
County Circuit Court’s intent to limit the Josephine County
sentences to a total of 36 months.
The trial court agreed with the state that discre-
tionary immunity applied to plaintiff’s negligence claim, but
it asked for additional briefing as to whether discretionary
immunity might also apply to plaintiff’s claim in intentional
tort for false imprisonment. After receiving that additional
briefing, the trial court concluded that discretionary immu-
nity also applied to intentional torts, and the court granted
summary judgment for the state.
D.  Appeal to the Court of Appeals
Plaintiff appealed to the Court of Appeals. On appeal,
plaintiff did not renew his contention that the department’s
policy could not override the Josephine County Circuit
Court’s alleged intent. Instead, plaintiff assumed that the
policy itself was protected by discretionary immunity, but he
argued that the policy required the department’s employees
to make decisions about how to apply the policy that were
not protected by that immunity. Specifically, plaintiff main-
tained that the policy required the department’s employees
to make a choice: A PTA could decide to have the sentence
in Count 49 run consecutively either to sentences imposed
previously or to other sentences imposed the same day. The
PTA’s choice to have the sentence run consecutive to sen-
tences imposed the same day, plaintiff argued, was not the
sort of decision that qualified for discretionary immunity.
Plaintiff also alternatively asserted that (1) discretionary
immunity did not apply to intentional torts such as his false
imprisonment claim; and (2) the policy obligated the depart-
ment’s employees to notify a supervisor or the Josephine
County Circuit Court about his questions regarding the
judgment. The state renewed its argument that the depart-
ment’s employees had followed the written policy and that
the written policy was entitled to discretionary immunity as
to all claims.
The Court of Appeals ruled for plaintiff on a broader
theory than plaintiff had advanced. The court noted that,
Cite as 355 Or 144 (2014) 155
while the department may have been exercising discretion
when it established the written policy, the department’s
employees who carried it out (the PTAs) were not the ones
who had adopted the policy. The Court of Appeals did not
accept plaintiff’s position that the policy allowed the PTAs to
choose whether the consecutive sentence would run consec-
utive to previous sentences or same-day sentences. Instead,
the court held that discretionary immunity did not protect
the department’s employees who carried out the departmen-
tal policy, even if the employees had no choice but to follow
the policy and even if the policy itself was subject to discre-
tionary immunity:
“Although, as the state argues, the adoption of the [depart-
ment’s] policy may reflect a choice among competing policy
objectives by individuals within the agency to whom the
responsibility to make such a choice has been delegated,
the [department’s] employees implementing that policy
were not delegated similar responsibility; the policy choice
had been made for them through the instructions in the
[department’s] policy that required them to make certain
decisions when confronted with particular language in a
judgment. Put differently, even if the employees’ sentence-
restructuring decisions in this case were made in per-
fect conformity with the [department’s] sentencing policy,
those decisions were not the product of policy choices by the
employees.”
Westfall, 247 Or App at 392-93 (emphasis in original). The
Court of Appeals summarized its reasoning by stating,
“[W]hen the [department’s] employees implemented the
sentencing policy, they made routine decisions in the course
of their everyday activities—viz., computing an inmate’s
prison sentence—that were not choices among competing
policy objectives,” and so those “decisions” were not entitled
to discretionary immunity. Id. at 393.
We allowed the state’s petition for review. On
review, the state contends that the Court of Appeals decision
wrongly limited the protection provided by discretionary
immunity. The trial court, the state argues, correctly held
that discretionary immunity extends to the department’s
employees when they interpret a trial court judgment of
156 Westfall v. Dept. of Corrections
conviction in accordance with the department’s discretion-
ary policy for doing so.
For his part, plaintiff does not defend the rationale
that the Court of Appeals used to decide the case. Instead,
he renews his argument that the policy gave the depart-
ment’s employees a choice and that choice was not entitled
to discretionary immunity. We should, plaintiff effectively
contends, affirm the Court of Appeals on other grounds.
II. DISCUSSION
Preliminarily, we note that the issues before us
do not require us to determine whether the department
correctly calculated plaintiff’s prison term based on the
Josephine County judgment of conviction. Because the trial
court granted summary judgment for the state based on
its claim of discretionary immunity, we assume for pur-
poses of analysis that the department’s policy did result in
a prison term calculation that was inconsistent with what
the Josephine County Circuit Court had intended by the
sentence it imposed. See Garrison v. Deschutes County, 334
Or 264, 272, 48 P3d 807 (2002) (on review of grant of sum-
mary judgment to county for discretionary immunity, this
court must “assume that the county, were it a private party,
could have been found liable to plaintiffs for their injuries”).
We also assume, because plaintiff does not argue otherwise,
that the department’s adoption of its policy was a discre-
tionary choice that is entitled to discretionary immunity. We
must decide only whether, assuming that the policy that the
department adopted was protected by discretionary immu-
nity, discretionary immunity extended as well to the PTA’s
calculation of plaintiff’s prison term.
With that, we turn to the doctrine of discretionary
immunity. Discretionary immunity has its origins in the
common law. See Smith v. Cooper, 256 Or 485, 494, 475 P2d
78 (1970) (“this immunity for public employees is court made”
and citing cases). Today, however, discretionary immunity is
codified by statute. That statute, ORS 30.265(6)(c), is part
of the Oregon Tort Claims Act (OTCA).
The OTCA generally makes governmental bod-
ies subject to liability for the torts of its employees. ORS
30.265(1). But the OTCA also creates certain exceptions to
Cite as 355 Or 144 (2014) 157
that liability. The exception at issue here, 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.”
The legislature did not define the term “discretion-
ary function or duty,” and this court has struggled with the
concept over the years. See Hughes, 345 Or at 495-96 (not-
ing tensions inherent in ORS 30.265(6)(c)); Smith, 256 Or at
495-96 (looking to common law for guidance on meaning of
term). The result of that struggle, however, is an extensive
body of case law refining the concepts. See Garrison, 334 Or
at 273 (citing cases); see Stevenson v. State of Oregon, 290
Or 3, 8, 619 P2d 247 (1980) (noting that court’s decision in
Smith regarding common-law discretionary immunity had
been “mindful that although the case was not governed by
the [OTCA] our decision would be important to the future
construction of the statute”). Briefly, the decision of a gov-
ernmental official, employee, or body is entitled to discre-
tionary immunity if a governmental person or entity made
a policy choice among alternatives, with the authority to
make that choice. Garrison, 334 Or at 273-75; Mosley v.
Portland School Dist. No. 1J, 315 Or 85, 89-90, 92, 843 P2d
415 (1992); see McBride v. Magnuson, 282 Or 433, 436, 578
P2d 1259 (1978) (noting that “not every exercise of judgment
and choice is the exercise of discretion”; immunity applies
to policy judgments made by an official to whom responsi-
bility has been delegated). Discretionary immunity does
not apply, however, to “routine decisions made by employ-
ees 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 P2d
1027 (1990); see Garrison, 334 Or at 273-74; Mosley, 315 Or
at 89 (both quoting Lowrimore).
In this case, the department made a policy decision,
reflected in its written policy, as to how it would interpret
158 Westfall v. Dept. of Corrections
judgments of conviction in carrying out its statutory duty to
determine the period of confinement for prisoners lawfully
sentenced by the courts of Oregon. The parties have effec-
tively assumed that the department’s written policy was
itself subject to discretionary immunity. That is, no party
has suggested that the department’s written policy was not
a policy choice among alternatives or that the department
lacked authority to make that policy choice
Instead, the parties present us with two different
issues on review. The state challenges the reasoning that
underlies the decision of the Court of Appeals. It contends
that that court erred in concluding that discretionary immu-
nity protected only the department’s decision to adopt the
written policy itself and not the action of the employees who
put that policy into effect. Plaintiff presents a second issue,
offering an alternative reason why we should affirm the
ultimate decision of the Court of Appeals, even if we reject
its reasoning. Specifically, plaintiff renews his contention
that the particular policy adopted by the department gave
the PTAs a choice, one that was sufficiently ministerial as to
not be protected by discretionary immunity.
We begin with the state’s challenge to the reasoning
of the Court of Appeals, because its analysis is independent
of the terms of the particular policy at issue. As we ear-
lier outlined, we understand the Court of Appeals to have
reasoned that the only matter of consequence was that the
departmental official who adopted the department’s written
policy was not the person who applied it to calculate this
particular sentence. The actions of the department’s employ-
ees were not subject to discretionary immunity, the court
held, even if the employees were compelled by the terms of
the written policy to act in the way that they did. The par-
ticular contents of the department’s written policy thus were
irrelevant, and so the court did not consider whether the
policy required the department’s employees to make a non-
immune choice, as plaintiff asserts.
A.  When Discretionary Immunity Applies to Employees Who
Apply Policy
In this case, the department established a gen-
eral policy that, for purposes of our analysis in this case,
Cite as 355 Or 144 (2014) 159
we assume to be protected by discretionary immunity. The
department’s employees then apply that general policy to
particular cases by calculating prison terms for individual
inmates. When employees are required to apply an otherwise
immune governmental policy to a particular case, there are
four possible factual scenarios that may affect whether the
employee’s actions are protected by discretionary immunity.
The first scenario is where the immune policy does
not express a completed thought on how a particular case
should be resolved, instead contemplating that the employee
will make additional choices within the confines of the
policy decisions. In that scenario, liability will depend on
whether the choice made by the employee separately quali-
fies for discretionary immunity. See Stevenson, 290 Or at 15
(contrasting hypothetical discretionary decision as to which
repairs to make in light of budget constraints with the “neg-
ligent performance by its employees of certain tasks related
to such a decision—for example, determining the extent of
the actual disrepair in each section and the kinds of hazards
that existed as a result”); McBride, 282 Or at 436 (“Many
officers or employees carrying out the functions entrusted to
them by others must frequently assess facts and choose how
to act or not to act upon them. But not every exercise of judg-
ment and choice is the exercise of discretion.”); Smith, 256
Or at 511-12 (in determining whether discretionary immu-
nity applies, allegation of improper maintenance of roadway
may present different question from allegations relating to
planning and design of roadway). Plaintiff contends that the
first scenario applies here: The department’s written policy,
plaintiff asserts, still required its employees to choose which
sentence would be considered the trigger for the consecutive
sentence in Count 49. If plaintiff is correct, then we must
separately examine the choice made by the department’s
employees to determine whether that choice was protected
by discretionary immunity. As noted, however, that was not
the rationale for the Court of Appeals’ holding; instead, that
court effectively assumed that it was irrelevant whether
the policy required the department’s employees to make
additional choices. Accordingly, we will return to plaintiff’s
alternative argument only after considering the Court of
Appeals’ rationale.
160 Westfall v. Dept. of Corrections
The second scenario arises when the employee, for
whatever reason, wrongly fails to apply an otherwise immune
policy to a particular case. In that scenario, the actions of
the employee generally would not be protected by discretion-
ary immunity (unless the employee’s decision not to apply
the policy itself somehow separately qualified as a discre-
tionary policy choice entitled to immunity). See Stevenson,
290 Or at 14-15 (contrasting discretionary policy choice by
officials as to where to install safety measures, which likely
would be subject to discretionary immunity, with employee’s
failure to install those safety measures because of “a failure
to determine that those conditions did in fact exist at that
location,” which likely would not be subject to discretionary
immunity); Brennen v. City of Eugene, 285 Or 401, 415-16,
591 P2d 719 (1979) (discretionary immunity did not apply to
city employee’s decision to issue license to taxi company that
lacked amount of liability insurance required by munici-
pal ordinance; “the language [in the ordinance] relating to
minimum liability insurance is clearly mandatory, and we
do not believe the language, taken as a whole, vested the
[employee] with discretion to issue a license to an applicant
who did not meet those requirements”). No party asserts
that the second scenario applies here.
The third scenario is simply a variant of the second:
An employee applies an otherwise immune policy to inappli-
cable circumstances. For essentially the same reasons as in
the second scenario, the actions of the employee generally
would not be protected by discretionary immunity. No party
asserts that the third scenario applies here.
The reasoning of the Court of Appeals here effec-
tively invokes a fourth factual scenario: When an immune
policy choice expresses a completed thought that fully con-
trols how the employees should apply the policy to a partic-
ular case, and an employee correctly applies the policy to
the case. The Court of Appeals assumed that that was true
here. Even so, the Court of Appeals nevertheless held that
the employee had made a “decision” that was not entitled to
discretionary immunity.
We reject that conclusion. The Court of Appeals
overly focused on the actor who rendered the policy judg-
ment into concrete action in a particular case and not on
Cite as 355 Or 144 (2014) 161
the immune policy choice itself. Discretionary immunity is
not just concerned with protecting the persons who made
the policy choice. The immunity attaches to the policy choice
itself and protects a range of persons, as is demonstrated by
the statutory text:
“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.”
ORS 30.265(6)(c) (emphases added).
Once a discretionary choice has been made, the
immunity follows the choice. It protects not only the officials
who made the decision, but also the employees or agents who
effectuate or implement that choice in particular cases. Only
if an employee or agent makes an additional choice—one
that is not subject to discretionary or other immunity—can
there be liability. In that circumstance, liability attaches to
the nonimmune choice and only to the nonimmune choice.
The fourth factual scenario described above is dis-
tinguishable from the three other scenarios on that basis.
The first three scenarios each involve an employee action or
decision that goes beyond the choices reflected in the immune
discretionary policy—either because the policy itself con-
templated that the employee would make additional choices
or because the employee made decisions that were outside
the policy (applying the policy to the wrong facts or failing
to apply it to the correct facts). Under the Court of Appeals’
reasoning, however, liability could be imposed on the discre-
tionary policy decision merely because it was effectuated by
the hand of someone other than the officials who had made
the discretionary choice. That conclusion is inconsistent
with the statutory text, which protects discretionary func-
tions even if they are carried out by employees or agents.
The Court of Appeals’ conclusion also is inconsis-
tent with our prior case law. In Smith, this court observed
that the purpose of discretionary immunity would be
162 Westfall v. Dept. of Corrections
undermined if a policy’s immunity were extinguished sim-
ply because an employee implemented the policy. This court
quoted with approval the following passage from a United
States Supreme Court decision regarding the Federal Tort
Claims Act:
“ ‘Where there is room for policy judgment and decision
there is discretion. It necessarily follows that acts of sub-
ordinates in carrying out the operations of government in
accordance with official directions cannot be actionable. If
it were not so, the protection of [the discretionary immu-
nity statute] would fail at the time it would be needed, that
is, when a subordinate performs or fails to perform a causal
step, each action or nonaction being directed by the supe-
rior, exercising, perhaps abusing, discretion.’ ”
Smith, 256 Or at 500 (quoting Dalehite v. United States, 346
U.S. 15, 36, 73 S. Ct. 956, 97 L. Ed. 1427 (1953)). In a later case
involving judicial immunity, this court reached the same
conclusion, citing Smith as authority for the “general prin-
ciple that employees who are following the explicit orders of
their superiors who have exercised discretionary authority
in making such decisions will not be answerable for per-
forming their duty.” Praggastis v. Clackamas County, 305
Or 419, 429, 752 P2d 302 (1988) (concluding that judicial
immunity applied to the actions of a judicial employee who
followed the policy decision made by the presiding judge).
In its incorrect analysis of discretionary immu-
nity law, the Court of Appeals may have been misled by
an unclear statement that this court made in Lowrimore.
See Westfall, 247 Or App at 392 (quoting Lowrimore, 310 Or
at 296).8 We take this opportunity to clarify Lowrimore’s
holding.
In Lowrimore, the plaintiff had been injured after
a sheriff’s deputy engaged in a high-speed chase of another
vehicle. The plaintiff alleged that the county was liable
because the deputy had been negligent in pursuing the other
8
This court itself has had problems correctly understanding Lowrimore.
See Mosley v. Portland School Dist. No. 15, 315 Or 85, 92, 843 P2d 415 (1992)
(dictum citing Lowrimore for proposition that “the choice to follow or not to follow
a predetermined policy in the face of a particular set of facts involving the safety
of a particular individual normally is not a discretionary policy choice entitled to
immunity”).
Cite as 355 Or 144 (2014) 163
vehicle. In response, the county asserted that the deputy’s
decision to pursue the other vehicle was entitled to discre-
tionary immunity.
This court’s analysis focused on the deputy’s deci-
sion to pursue the vehicle, examining whether that choice
was a policymaking decision and whether the deputy had
authority to make such a policy choice. Lowrimore, 310 Or at
296. This court concluded that neither of those things was
true: “The making of the decision to pursue does not create
any departmental policy and was not made by a person with
governmental discretion.” Id. (internal quotation marks and
citation omitted). That conclusion, however, was followed by
this statement:
“Although the decision to pursue may have been made pur-
suant to a county departmental policy, the decision itself is
not a policy judgment.”
Id. (emphasis added). The Court of Appeals quoted that sen-
tence in apparent support of its analysis here. Westfall, 242
Or App at 392.
That sentence from Lowrimore contains the opin-
ion’s only reference to the county policy; Lowrimore provides
no information about that policy. Neither does the underly-
ing Court of Appeals opinion in that case describe the pol-
icy. See Lowrimore v. Dimmitt, 99 Or App 192, 781 P2d 411
(1989). Accordingly, we have consulted the briefs that the
parties filed in Lowrimore. The appellant’s brief before the
Court of Appeals quoted the county policy, which clearly did
not prescribe when high-speed chases were to occur. The
policy instead contemplated that the deputy would make
the decision whether to pursue and listed the factors for a
deputy to consider in making that decision.9
9
The county’s pursuit policy at issue in Lowrimore stated:
“[I]t is the policy of this office that a high speed pursuit shall be attempted
only when, in the deputy’s judgment, the danger created by the possible
escape of the fleeing violator outweighs the danger created by the high speed
pursuit AND NO REASONABLE ALTERNATIVE EXISTS.”
(Emphasis in original.) The policy went on to state:
“Members of this office will make a reasonable effort to pursue and stop
all violators, giving consideration to:
“1.  Seriousness of the crime involved;
164 Westfall v. Dept. of Corrections
Lowrimore thus falls within the first scenario that
we described above, in which a governmental agency has
made a policy choice that does not fully resolve how a partic-
ular case should be treated, leaving room for the employee
to make additional decisions in applying the policy that (at
least in Lowrimore) were not immune. Lowrimore does not
stand for the proposition on which the Court of Appeals here
relied: that a governmental body can be liable for its policy
choices simply because they are applied in a particular case
by an employee, rather than by the officials who made the
policy choice.
For the foregoing reasons, then, we agree with the
state. Contrary to the Court of Appeals’ reasoning, a discre-
tionary policy choice by upper-level governmental officials
does not lose the protection of discretionary immunity under
ORS 30.265(6)(c) whenever lower-level employees apply that
policy to particular circumstances. Rather, we reaffirm the
“general principle that employees who are following the
explicit orders of their superiors who have exercised dis-
cretionary authority in making such decisions will not be
answerable for performing their duty.” Praggastis, 305 Or at
429.
B.  The Department’s Policy Did Not Require Employees to
Make Additional, Nonimmune Decisions
Our disagreement with the Court of Appeals’ ratio-
nale, however, does not fully resolve this case. As we earlier
described, plaintiff essentially argues that the decision of
the Court of Appeals should be affirmed on other grounds.
Specifically, he maintains that the department’s policy
contemplated that the department’s employees would choose
whether to make the sentence in a particular case consecu-
tive either to sentences imposed the same day or to sentences
imposed previously. That particular choice, plaintiff urges,
was not entitled to the protection of discretionary immunity.
“2.  Possibility of identifying the suspect at a later time;
“3.  Speed of fleeing vehicle;
“4.  Weather, traffic and road conditions;
“5.  Hazard to the safety of citizens and to the pursuing deputy; and
“6.  Provisions of O.R.S. 820.300, 320.”
Cite as 355 Or 144 (2014) 165
The state disputes that contention, maintaining
that the department’s policy did not give its employees any
choices:
“Contrary to plaintiff’s belief, [the department’s] policy
does not give prison term analysts any discretion for how to
construe the phrase ‘consecutive to previously imposed sen-
tences.’ Rather, the policy instructs the analysts about how
they must construe that phrase. And because the record
clearly shows that the prison term analyst in plaintiff’s case
correctly applied that policy in computing his sentence, any
claim that the analyst was negligent in performing his or
her duties necessarily fails.”
(Emphases in original.) Instead, the state asserts, the policy
required its employees to run the consecutive sentence from
the expiration of the longest outstanding sentence to which
it was consecutive, even if that sentence had been imposed
the same day.
Plaintiff’s alternative argument focuses on whether
the policy left it to the department’s employees to choose how
to structure the consecutive sentence for Count 49. If the
policy did so, we must then consider whether that decision
by the department’s employees constituted the sort of policy
choice otherwise subject to discretionary immunity. As we
will explain, however, we conclude that the policy did not
leave subordinates with the choice that plaintiff perceives.
We begin with the department’s policy. In inter-
preting the policy, however, we are not merely determining
the objective meaning of the written document. Because the
department has offered its interpretation of its own policy,
we will defer to that interpretation as long as that interpre-
tation is plausible and not inconsistent with the policy in
its context or with any other source of law. See Friends of
Columbia Gorge v. Columbia River (S055915), 346 Or 415,
430 n 14, 212 P3d 1243 (2009); Friends of Columbia Gorge
v. Columbia River (S055822), 346 Or 366, 410, 213 P3d 1164
(2009); Don’t Waste Oregon Com. v. Energy Facility Siting,
320 Or 132, 142, 881 P2d 119 (1994) (all addressing an agen-
cy’s interpretation of its own rules).
As noted, the department interprets its policy to
require its employees to run the consecutive sentence from
166 Westfall v. Dept. of Corrections
the longest of the remaining sentences to which the sentence
is consecutive. If that interpretation is a plausible reading
of the policy and consistent with it, then we will respect it
unless it is inconsistent with some other law.
We begin with the text of the policy. In its relevant
part, the policy specifies how to calculate consecutive sen-
tences, depending on the particular text contained in the
judgment of conviction. For context, we quote again the
three provisions relating to consecutive sentences:
“1. ‘Consecutive to Sentences Previously Imposed’
“A consecutive sentence begins on the date of comple-
tion of the preceding sentence in the sequence of sentences.
If the court orders that a sentence be served ‘consecutive
to sentences previously imposed,’ the sentence will be set
up as consecutive to any other sentences imposed the same
date or on an earlier date. (Sentences imposed the same
date will be considered as ‘previously imposed.’) * * *
“2. ‘Consecutive to Sentences Simultaneously Imposed’
“If the court orders that a sentence be served ‘consecu-
tive to sentences simultaneously imposed,’ the sentence will
be set up as consecutive to any other sentences imposed the
same date. (Sentences imposed on an earlier date will not
be considered ‘simultaneously imposed.’)
“3. ‘Consecutive to Sentences Currently Being Served’
“If the court orders that a sentence be served ‘consecu-
tive to sentences currently being served,’ the sentence will
be set up as consecutive to any other sentences imposed the
same date or on an earlier date. (Sentences imposed the
same date will be considered as [‘]currently serving.’)”
(Emphases in original.)
In this case, the Josephine County judgment of
conviction provided that the sentence on Count 49 would
be “consecutive to all previously imposed sentences.”
Accordingly, the judgment of conviction here fell within
option 1, “
‘Consecutive to Sentences Previously Imposed.’  ”
Plaintiff emphasizes the “or” in the second sentence: “[T]he
sentence will be set up as consecutive to any other sentences
imposed the same date or on an earlier date.” Plaintiff
Cite as 355 Or 144 (2014) 167
asserts that that “or” requires the department’s employees
to decide whether to have a consecutive sentence run con-
secutive either to a sentence imposed the same date or to a
sentence imposed on an earlier date.
Under plaintiff’s interpretation, then, the depart-
ment’s policy did not require its employees to make the sen-
tence in Count 49 consecutive to the same-day sentences in
Counts 10 and 46. Instead, the policy directed the employees
to make a choice: Either run the sentence consecutive to the
same-day sentences in Counts 10 and 46, or run that sen-
tence consecutive to a previously imposed sentence. Plaintiff
goes on to argue that that choice by the employee was not
a discretionary choice among policy alternatives, but was
instead the sort of routine, day-to-day decision that is not
protected by discretionary immunity.
We are not persuaded by plaintiff’s reading of the
policy. The department’s interpretation of its policy, by con-
trast, is not only plausible, but also appears to us to accu-
rately reflect the written text. As we will explain, the text
of the policy, in context, directs the department’s employees
how to interpret a judgment of conviction that imposes a
consecutive sentence. The policy determines the bundle of
sentences (if there are more than one) to which a consecu-
tive sentence will be consecutive. If the sentence is consecu-
tive to more than one sentence, the employee does not choose
which sentence triggers the consecutive sentence; the con-
secutive sentence is triggered when the last sentence in the
bundle has been served.
Beginning with the text, the policy describes three
policy options. All three address how the department’s
employees should interpret the text of differing judgments
of conviction. Each option uses the mandatory directive
“will”: “[T]he sentence will be set up” in a particular fashion.
That text thus suggests that the department understood
the policy to provide controlling directions to its employees.
All three of the options also indicate that the consecutive
sentence will be consecutive “to any other sentences” that
meet the relevant conditions. Thus, the policy requires an
employee to treat any sentence that meets the appropriate
factual criteria in the fashion that the policy directs.
168 Westfall v. Dept. of Corrections
Plaintiff’s focus on the “or” in the phrase “any other
sentences imposed the same date or on an earlier date”
might carry some weight in a different context. Here, how-
ever, that argument fails to recognize that a sentence may
be consecutive to more than one sentence. When a court
makes a sentence consecutive to more than one sentence,
the consecutive sentence will begin to run only when the
last of those other sentences is completed.
Consider an example. A criminal defendant receives
three concurrent sentences in one criminal case: sentence A
for 12 months, sentence B for 18 months, and sentence C for
24 months. On a later date, the defendant receives sentence
X, a 12 month sentence imposed “consecutive to all previous
sentences.” Because sentence X is consecutive to all three
of the other sentences—A, B, and C—sentence X will begin
when the last of those sentences expires. In this hypotheti-
cal, sentence X will run consecutive to sentence C because
sentence C will be the last of those three sentences to expire.
That analysis, we believe, is implicit in the concept
of a sentence that is consecutive to more than one other sen-
tence: The sentence is consecutive to all of them, so it nec-
essarily will begin only once the last of the other sentences
ends. If there were any doubt, however, the department has
expressly stated as much in its policy. Again, the policy
states:
“If a sentence is consecutive to more than one other sen-
tence, the PTA will determine which of the other sentences
will be completed last and enter the consecutive sentence[ ]
as CS [consecutive] to that sentence.”
The department’s interpretation of its policy merely
extends that principle to same-day sentences. When con-
sidered in context, that interpretation is both plausible and
consistent with its written policy. The policy identifies three
ways in which a trial court might describe a consecutive
sentence: Consecutive to sentences previously imposed, con-
secutive to sentences simultaneously imposed, and consecu-
tive to sentences currently being served. The policy directs
employees dealing with a sentence that is “consecutive to
sentences previously imposed” to treat that sentence as
being consecutive to any sentence that was either previously
Cite as 355 Or 144 (2014) 169
imposed or imposed the same day. The function of the “or”
in the policy is not to signal a choice for employees, but
rather to identify that the sentence will be consecutive to
any sentence that meets either of the factual criteria: either
imposed the same date or imposed previously. The policy
identifies for the employee the bundle of sentences to which
the consecutive sentence is consecutive. Whichever of those
sentences in the bundle expires last will be the sentence
that triggers the beginning of the consecutive sentence.
A modified version of the prior hypothetical will illus-
trate the point. As before, a criminal defendant has received
three concurrent sentences in one criminal case: sentence
A for 12 months, sentence B for 18 months, and sentence C
for 24 months. On a later date, the defendant receives sen-
tence D, a 12-month sentence, and then sentence X, which
is for 12 months “consecutive to all previous sentences.”
Because the policy directs the department to treat sentence
X as consecutive to all four of the other sentences—A, B, C,
and D—sentence X will begin when the last of those sen-
tences expires, whichever that might be. Thus, sentence X
will run consecutive to sentence C if more than 12 months
of sentence C remain to be served, because then sentence C
would be the last of the previously imposed sentences to be
completed (sentence D, which is running concurrently with
sentence C, would expire first). But if fewer than 12 months
of sentence C remain to be served, then sentence X will run
consecutive to sentence D, because sentence D will be the
last sentence of the previously imposed sentences to expire.
In neither event will a department employee choose between
sentence C or sentence D.
Therefore, a departmental employee who is cor-
rectly applying the policy has no choice to make in calculat-
ing a sentence like plaintiff’s. Depending on the text used
in the judgment of conviction that imposed the consecutive
sentence, the policy specifies the sentences to which the
consecutive sentence will be considered consecutive. The
employee determines which sentence in that bundle ends
last, and the consecutive sentence will run from that date.
As long as the employee properly applies the policy to the
facts, the employee has no choices to make.
170 Westfall v. Dept. of Corrections
Because the department’s interpretation of its pol-
icy accords with our own reading of the policy, the inter-
pretation is both plausible and consistent with the policy’s
text in context. Plaintiff has not argued before this court
that the department’s interpretation is inconsistent with
any other law. Consequently, we defer to the department’s
understanding of its own policy.
We therefore reject plaintiff’s assertion that the
policy required the department’s employees to make choices
about how to structure his sentence. Because plaintiff’s judg-
ment of conviction in Josephine County stated that Count 49
would be “consecutive to all previously imposed sentences,”
the policy directed the department’s employees to consider
that sentence as consecutive to all sentences imposed the
same day, as well as all sentences imposed previously. Of
that bundle, two sentences qualified as ending last because
they both ended on the same date: the 13-month sentences
on Counts 10 and 46. The policy thus required the depart-
ment’s employees to have the consecutive sentence in Count
49 run consecutively to Counts 10 and 46. The department’s
employees did not have any authority under the policy to
have Count 49 run consecutively to any other sentence.
On the issues presented to this court, then, we con-
clude that the trial court correctly granted summary judg-
ment on discretionary immunity as to the negligence claim.
C.  Remand for Court of Appeals to Consider Additional
Issues
That does not mean that the judgment of the trial
court must be affirmed. In the Court of Appeals, plaintiff
maintained that discretionary immunity does not apply
to intentional torts such as plaintiff’s false imprisonment
claim. Plaintiff also argued that the department’s policy
required the department’s employees at least to bring the
questions regarding the meaning of the Josephine County
Circuit Court judgment to the attention of a supervisor, if
not to actually contact the circuit court themselves. The
Court of Appeals did not need to reach either question, given
its holding, and the parties did not brief those issues to this
court. Accordingly, we remand to the Court of Appeals so
that it may consider those arguments in the first instance.
Cite as 355 Or 144 (2014) 171
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.