679
Argued and submitted March 9, reversed and remanded April 29, 2020
Sarah MEYER
and Gail Wooldridge, Personal Representative
of the Estate of Martin Wooldridge,
Plaintiffs-Appellants,
v.
Tessa SUGAHARA,
Defendant-Respondent,
and
STATE OF OREGON,
acting by and through Oregon Lottery,
and Larry Niswender,
Defendants.
Marion County Circuit Court
12C23875; A169999
466 P3d 90
Plaintiffs appeal a limited judgment dismissing their 42 USC section 1983
claim against Sugahara, a state assistant attorney general, arguing that the
trial court erred in concluding that a government attorney is always entitled to
absolute immunity for acts conducted in the course of employment. Sugahara
concedes that the absolute immunity accorded to government lawyers encompasses litigation-related conduct but not otherwise. She asserts, nevertheless,
that much (although not all) of her complained-of conduct is protected by absolute immunity. Held: The trial court erred in dismissing the section 1983 claim
against Sugahara in its entirety, but the Court of Appeals declined to resolve
for the first time on appeal Sugahara’s new arguments that she is absolutely
immune from some portions of the claim.
Reversed and remanded.
Courtland Geyer, Judge.
William D. Stark argued the cause and filed the briefs
for appellants.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
680 Meyer v. Sugahara
ORTEGA, P. J.
Reversed and remanded.
Cite as
303 Or App 679 (2020) 681
ORTEGA, P. J.
This case is before us for a second time. Plaintiffs
sued a number of defendants, including defendant Tessa
Sugahara, a state assistant attorney general, for civil rights
violations in connection with their employment at the
Oregon State Lottery. They alleged that Sugahara and the
lottery’s former director, Larry Niswender, violated their
federal constitutional right of association under 42 USC section 1983 by investigating plaintiffs’ relationship and then
taking certain actions against them, including placing them
on administrative leave. In their first appeal, plaintiffs
challenged the trial court’s judgment dismissing the lawsuit
against all defendants. We concluded, among things, that
the trial court erred in dismissing plaintiffs’ section 1983
claim against Sugahara. Meyer v. Oregon Lottery, 292 Or
App 647, 649,
426 P3d 89 (2018).
On remand, Sugahara moved to dismiss plaintiffs’
claim against her in its entirety based on absolute immunity. The court granted that motion and entered a limited
judgment in Sugahara’s favor. Plaintiffs appeal that judgment, arguing that Sugahara was not entitled to absolute
immunity. Sugahara concedes that the trial court’s ruling
was partially incorrect, making new arguments to us (not
asserted to the trial court) that absolute immunity applies
only to a portion of the allegations supporting plaintiffs’
claim against her. She also requests that we determine which
allegations are subject to absolute immunity. As explained
below, we decline Sugahara’s request for a limited remand
and reverse and remand the entire limited judgment.
Sugahara moved the trial court to dismiss all of the
claims against her under ORCP 21 A(8) based on absolute
immunity. She cited Read v. Haley, No 3:12-CV-02021-MO,
2013 WL 1562938, at *9 (D Or Apr 10, 2013) (citing Bly-Magee v. California,
236 F3d 1014, 1018 (9th Cir 2001)),
aff’d, 650 F App’x 492 (9th Cir 2016), for the proposition that
“[a]n attorney in the Attorney General’s Office is immune
from lawsuits for any action he commits while discharging
his official litigation-related duties, whether sued in his
official or individual capacity.” She argued that absolute
immunity applied because “[p]laintiffs’ allegations against
682 Meyer v. Sugahara
[her] all relate to her role as an AAG advising defendant
Niswender and the Oregon Lottery.”
The trial court concluded that Sugahara was absolutely immune from liability on plaintiffs’ section 1983 claim
and ordered dismissal of the claim by limited judgment. In
making that ruling, it cited Bly-Magee, 236 F3d at 1018, for
the proposition that “an AAG has absolute immunity for
acts performed as part of their official duties.”
In challenging the limited judgment dismissing
the claims against Sugahara, plaintiffs argue that the trial
court erred in concluding that an assistant attorney general
is always entitled to absolute immunity for acts conducted in
the course of employment.1 In contrast to her position below,
Sugahara concedes that, on the facts of this case, absolute
immunity does not apply to her nonlitigation conduct occurring before plaintiffs’ attorney first appeared. She acknowledges that “[t]he absolute immunity accorded to government
lawyers encompasses conduct associated with active or
potential litigation but not otherwise.” See Barrett v. United
States, 798 F2d 565, 571-72 (2d Cir 1986) (analyzing United
States Supreme Court cases on absolute immunity and
holding that it applies to conduct that may “fairly be characterized as closely associated with the conduct of litigation
or potential litigation”); see also Bly-Magee, 236 F3d at 1018
(holding that the plaintiff could not assert claims against a
California attorney general “or any [government] attorney
… for conduct related to litigation duties” and that, if sued
in either their official or individual capacity, the government
attorneys are “absolutely immune for conduct during performance of official [litigation-related] duties”).
Sugahara now urges us to resolve the question of
which of her alleged activities, as asserted in the operative
complaint, may “fairly be characterized as closely associated with the conduct of litigation or potential ligation,” and
she argues that much (although not all) of her complained-of
conduct is protected by absolute immunity. She posits that
we should remand with instructions for the trial court to
1
Plaintiffs also argue that Sugahara waived the absolute immunity defense
by failing to plead it as an affirmative defense. We reject that argument without
discussion.
Cite as 303 Or App 679 (2020) 683
enter an amended order dismissing the claims against her
insofar as they are based on the conduct alleged in paragraphs 21 through 38 of the operative complaint, leaving the
conduct alleged in paragraphs 1 through 20 for disposition
on a ground other than absolute immunity.
We accept Sugahara’s concession that the trial
court’s limited judgment entirely dismissing the claim
against her was in error, but we decline to resolve for the
first time on appeal her new arguments that she is absolutely immune from some portions of the claims but not all.
Those arguments are more appropriately addressed to the
trial court in the first instance.
Reversed and remanded.
