Norgaard v. Port of Portland

196 P.3d 67

223 Or. App. 543

Jon NORGAARD, Plaintiff-Appellant, v. PORT OF PORTLAND, Defendant-Respondent.

060505475.

A134586.

Court of Appeals of Oregon.

Argued and Submitted May 13, 2008.

Decided November 5, 2008.

Meagan A. Flynn argued the cause for appellant. With her on the briefs was Preston Bunnell & Flynn, LLP.

Jay Beattie, Portland, argued the cause for respondent. With him on the brief was Lindsay, Hart, Neil & Weigler, LLP.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

EDMONDS, P.J.

This case is about whether the Port of Portland is entitled to immunity from an action based on federal law under the doctrine of "pre-ratification immunity." Plaintiff, who was employed by the Port of Portland, was injured while working on a vessel that was providing assistance to a dredge on the Columbia River. He applied for and received workers' compensation benefits. Plaintiff later brought this action to recover damages under general maritime law and the federal Jones Act. The Port moved for summary judgment, the trial court granted the Port's motion, and plaintiff appeals. Applying the test for immunity set out by the Supreme Court in Johnson v. SAIF, 343 Or. 139, 164 P.3d 278 (2007), we reverse and remand.

In his complaint, plaintiff asserted claims for relief under the federal Jones Act, 46 U.S.C. § 30104, and under general maritime law.¹ He alleged that the Port was negligent and that, as a result of the Port's negligence, he sustained serious injuries. In its answer, the Port asserted, among other positions, that it was immune from liability under the doctrine of sovereign immunity. As noted, the Port moved for summary judgment, which the trial court granted. The court dismissed plaintiff's complaint and entered judgment in favor of the Port. Plaintiff appeals.

On appeal, the parties reprise their arguments regarding sovereign immunity. Plaintiff argues that Congress has abrogated state sovereign immunity for actions brought under the Jones Act and general maritime law, and that those provisions preempt contrary state law. In addition, plaintiff argues, even if the state itself is immune on the basis of pre-ratification immunity, the Port is not entitled to share in that cloak of immunity because it is not an "arm of the state." The material facts are undisputed; accordingly, we review the trial court's grant of summary judgment for errors of law. Povey v. City of Mosier, 220 Or.App. 552, 554, 188 P.3d 321 (2008). Because we agree that the Port is not an arm of the state for purposes of immunity from actions brought under federal law, we need not address plaintiff's other arguments.

Although courts often refer to the Eleventh Amendment to the United States Constitution as the source of the states' immunity from actions brought under federal law, that is not in fact the source of state sovereign immunity known as "pre-ratification immunity." "Rather," the United States Supreme Court has explained,

"as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments."

Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).² Thus, there is no question that the states enjoyed immunity from private actions before the ratification of the federal constitution and that they continue to enjoy such immunity, but the Court has also made clear that pre-ratification immunity does not extend to certain political subdivisions of the states. "The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations." Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (citations omitted). Whether a particular state entity is entitled to share in the state's pre-ratification immunity from federal action is a question of federal law and depends on whether the entity is an "arm of the state." Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 n. 5, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997).

Initially, the parties disagree about whether Johnson provides the controlling analysis for this court to apply to the circumstances of this case. In plaintiff's view, the Johnson court "synthesized the controlling federal case law and set out the controlling frames by which the question of arm-of-the-State immunity must be resolved in Oregon courts." The Port disagrees. In its view,

"Johnson addresses the question of whether a governmental entity (SAIF) is a `person' within the meaning of Section 1983, 42 U.S.C.A. Section 1983. Although the Supreme Court has applied its Eleventh Amendment case law in determining whether a governmental entity is an `arm of the state' and therefore not a `person' within the meaning of Section 1983, the fundamental question in those cases is one of statutory construction; who is a `person' within the meaning of Section 1983? The question here is different, vis., which governmental entities are entitled to share in a state's pre-ratification sovereign immunity? Indeed, Johnson does not cite either Alden or [Northern Ins. Co. of N.Y. v. Chatham County, Ga., 547 U.S. 189, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006),]-the only two Supreme Court cases discussing pre-ratification sovereign immunity as a limitation on federal authority to subject non-consenting states to suits for money damages in their own courts."

We reject the Port's argument. In Johnson, SAIF argued that it was an arm of the state under the holding in Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), a case in which the United States Supreme Court held that Congress did not intend section 1983 to apply to the "States or governmental entities that are considered `arms of the State'[.]" Under Will, an entity is a "person" for purposes of section 1983 only if the entity is not an "arm of the state" for pre-ratification immunity purposes. In order to determine whether SAIF was a "person" for purposes of section 1983, the Johnson court was therefore required to resolve whether SAIF was an "arm of the state." That is the same question that must be resolved in this case. After conducting a survey of federal law, the Johnson court established the test for Oregon courts to apply in determining pre-ratification immunity. Noting that the United States Supreme Court "has not articulated and applied a consistent test," the court explained that the cases "make it apparent that immunity is a case-specific inquiry that turns on whether `the state is the real, substantial party in interest.'" Johnson, 343 Or. at 146, 164 P.3d 278 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)).

In our opinion in Johnson, we identified a number of factors that the United States Supreme Court deems as relevant to the "arm of the state" inquiry. We explained that the Court "has variously applied tests involving anywhere from two to six different factors." Johnson v. SAIF, 202 Or.App. 264, 273, 122 P.3d 66 (2005), adh'd to on recons., 205 Or.App. 41, 132 P.3d 1058 (2006), aff'd, 343 Or. 139, 164 P.3d 278 (2007). We also noted that lower federal courts have employed a number of tests involving up to nine factors. Id. at 275, 122 P.3d 66. Ultimately, however, we decided that "two principles are consistently at the forefront of Eleventh Amendment `arm-of-the-state' analysis":

"First, the courts-in particular, the Supreme Court-nearly always emphasize the importance of the characterization of the entity as a matter of state law. * * *

"Second, courts-again, especially the Supreme Court-nearly always emphasize the importance of identifying whether the state treasury may be liable for the obligations of the entity at issue. Some lower courts even characterize that factor as the most significant."

Id. at 275-76, 122 P.3d 66.

On review, the Supreme Court adopted our characterization of the test:

"We agree with the Court of Appeals that the many factors that the Supreme Court has identified as relevant at one time or another can be subsumed within the two primary tests described above—the characterization and nature of the entity under state law and the liability of the state for the financial obligations of the entity—and that breaking the analysis back down into further discrete steps does not serve a useful purpose. Id. at 276, 122 P.3d 66. Moreover, we apply those tests, as Hess [v. Port Authority Trans-Hudson Corporation 513 U.S. 30, 44, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994),] requires, in light of the two concerns—`the States' solvency and dignity'—that `underpin the Eleventh Amendment.' Hess, 513 U.S. at 52."

Johnson, 343 Or. at 148, 164 P.3d 278. Accordingly, we reject the Port's argument that Johnson does not provide the correct legal tests for determining whether the Port is an arm of the state for pre-ratification immunity purposes.

Our remaining task in this case is to apply the Johnson test to determine whether the Port is an "arm of the state." The test first requires that we assess how the Port is characterized under state law. We have little trouble concluding that the Port is characterized under state law as part of the state government, in part because the Oregon Supreme Court has said so. In Hale v. Port of Portland, 308 Or. 508, 783 P.2d 506 (1989), the Supreme Court addressed whether the Port is part of the state for purposes of immunity from actions brought under state law—in contrast to actions brought under federal law. After...