Discretionary Immunity Bars Oregon Prisoner’s Negligent Sentence Computation Claim

On April 10, 2014, the En Banc Oregon Supreme Court held that Oregon prison officials were entitled to discretionary immunity on a former prisoner’s negligence claim related to confining him 13 months beyond his proper release date.

The Oregon Department of Corrections (ODOC) is charged with calculating the length of a prisoner’s sentence, resulting from the various concurrent and consecutive sentences imposed against a prisoner in its custody.

In 2004, ODOC adopted an extensive written policy outlining how a “Prison Term Analyst” (PTA) should calculate sentences. In a section addressing “facially invalid and/or problem judgments,” the policy directs the PTA to make all calculations based on the judgment alone. In some circumstances, however, the PTA is required to bring apparent problems with the judgment to the attention of a supervisor or the court. The policy also extensively outlines several consecutive sentence calculation requirements.

Chester C. Westfall’s “sentences formed a complicated mosaic of at least 19 different sentences arising from several criminal cases heard in four counties.” Not all of those sentences impacted the proper calculation of his prison term.

Westfall escaped from prison and was convicted of second degree escape. In July 2001, the Marion County Circuit Court sentenced him to an additional 20 months “consecutive to any sentence previously imposed.”

In September 2002, the Josephine County Circuit Court sentenced Westfall on six convictions. Four sentences were imposed concurrently and two consecutively. On counts 14 and 22, the court imposed 12 month sentences, and concurrent 13 month sentences on counts 10 and 46. The court imposed a 26 month sentence “consecutive to all previously imposed sentences” on count 49, and on count 5, Westfall was sentenced to 10 months, consecutive to count 49.

Westfall would have been entitled to release upon completion of the consecutive 20 month Marion County and 36 month Josephine County sentences. All of his concurrent sentences would have expired before the consecutive sentences were completed.

In 2005, Westfall’s 20-month Marion County escape sentence was vacated. On resentencing, the sentence imposed was so short that it had already been served in full. This required ODOC to recalculate when the consecutive 26 month Josephine County sentence began.

Contrary to its previous interpretation, ODOC interpreted the “consecutive to all previously imposed sentences” language in the Josephine County judgment to mean not only sentences imposed previously, but also consecutive to the 12 and 13 month sentences imposed the same day. That interpretation effectively increased Westfall’s Josephine County sentence from 36 to 49 months, by requiring him to serve 13 months on Counts 10 and 46, followed by 26 months on count 49, followed by 10 months on count 5.

Westfall objected to the 13 month increase, arguing that Josephine County did not intend the 26 month sentence to be consecutive to any sentences entered that same day. He noted that his plea agreement specifically stated that he would serve only a total of 36 months on that case.

ODOC refused to change its sentence calculation and told Westfall that he’d need to seek an amended judgment. He did so, but the court denied the motion without explanation.

Westfall ultimately served 49 months, rather than 36 months, on the Josephine County case and was released in December 2005.

In December 2007, Westfall brought a state court action against ODOC alleging negligence in the calculation of his sentence and false imprisonment. The trial court granted defendants summary judgment, agreeing “that the department’s employees who computed (Westfall’s) total sentence 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)©.” The court concluded that discretionary immunity barred both Westfall’s negligence and intentional tort of false imprisonment.

The Oregon Court of Appeals reversed the grant of discretionary immunity on the negligence claim. It did not reach Westfall’s arguments that discretionary immunity does not extend to his intentional tort of false imprisonment, or that ODOC officials were not entitled to discretionary immunity for violating a policy requiring them to bring questions about the judgment to a supervisor or the court itself. See: Westfall v. ODOC, 247 Or App 384,271 P.3d 116(2011).

The Oregon Supreme Court reversed the Court of Appeals, holding that discretionary immunity applies to Westfall’s negligence claim. In doing so, the Court assumed, since Westfall did not argue otherwise, “that the department’s adoption of its policy was a discretionary choice that is entitled to discretionary immunity.” The Court repeatedly suggested that perhaps ODOC lacked authority to make the policy choice reflected in its written policy. It did not reach that issue, however, since Westfall did not raise it.

Ultimately, the policy “required the department’s employees to have the consecutive sentence in Count 49 run consecutively to Counts 10 and 46,” the Court found. “The department’s employees did not have any authority under the policy to have Count 49 run consecutively to any other sentence.” Therefore, those employees who applied the policy were entitled to discretionary immunity on Westfall’s negligence claim.

The Court remanded for the Court of Appeals to address in the first instance, whether discretionary immunity extends to intentional torts, and whether that immunity extends to employees who violate ODOC policies.

See: Westfall v. ODOC, 355 Or 144 (Or. 2014)(En Banc).

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