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FILED: July 27, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON DIANE L. SCOTT, Plaintiff-Appellant, v. JACKSON COUNTY, Defendant-Respondent. Jackson County Circuit Court 091455E2 A144157

G. Philip Arnold, Judge. Argued and submitted on December 02, 2010. G. Jefferson Campbell, Jr., argued the cause for appellant. With him on the briefs was G. Jefferson Campbell, Jr., P.C. Michael Jewett argued the cause and filed the brief for respondent. Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Senior Judge. WOLLHEIM, J. Reversed and remanded.

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WOLLHEIM, J. Plaintiff conducted a rabbit breeding operation on property located in Jackson County. In 2001, plaintiff pleaded no contest to animal abuse, and, in conjunction with the criminal proceedings, the county seized her rabbits. The county housed, treated, and fed the rabbits before declaring them abandoned, at which point the county gave them away. In 2003, plaintiff filed an action against the county in federal court, alleging civil rights violations and common-law tort claims. After the Ninth Circuit affirmed summary judgment as to some of plaintiff's claims, she filed a complaint in state court based on the same factual allegations. The trial court granted the county's motion for summary judgment based on issue preclusion, and plaintiff now appeals that judgment. We reverse and remand. This much is undisputed. In May 2001, animal control officers investigated a complaint about the condition of plaintiff's rabbits. The officers discovered and seized four dead rabbits, and plaintiff was charged with animal neglect. In August 2001, county officials executed a search warrant on plaintiff's property and seized approximately 300 rabbits; they left some 300 additional rabbits on the property. Plaintiff subsequently pleaded no contest to one count of animal neglect, and she was sentenced to probation. The sentence, however, also prohibited plaintiff from possessing animals and ordered that she forfeit her remaining rabbits. The county seized the remaining rabbits immediately after plaintiff's sentence was pronounced. Two weeks later, the sentencing judge reconsidered the conditions of her order. The judge deleted the forfeiture provision but left in place the
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condition that plaintiff not possess any animals. Plaintiff thereafter sought the return of the rabbits that were in the county's custody, but the county refused to return them (ostensibly because plaintiff still could not herself possess them). Instead, the county cared for and treated the rabbits, declared them abandoned under county law, and gave away those that had survived. On July 22, 2003, plaintiff filed an action in federal court, the specifics of which will be discussed later. In short, plaintiff alleged that the county had unlawfully entered her property, unlawfully seized her rabbits and other property, and had then killed, lost, failed to properly treat and care for, or given away the seized rabbits. Her claims ranged from civil rights violations (taking of property; denial of substantive due process; illegal search and seizure) to state common-law claims of trespass to land, trespass to chattels, and conversion. The district court granted the county's motion for summary judgment on all claims. Plaintiff appealed that judgment. The Ninth Circuit affirmed with respect to plaintiff's federal claims but reversed in part the district court's ruling regarding the state law tort claims. Scott v. Jackson County, 297 Fed Appx 623, 2008 WL 4706301 (9th Cir 2008). The case was remanded and, on remand, plaintiff moved to dismiss her complaint, asking the court to decline to exercise supplemental jurisdiction over her remaining state law tort claims. The court granted the motion and dismissed those common-law claims without prejudice. Plaintiff then filed this action in Jackson County Circuit Court in April 2009. Her complaint, the first 101 paragraphs of which are taken verbatim from her
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federal complaint, re-alleged her tort claims: trespass to land, trespass to chattels, and conversion. At the same time, plaintiff moved for a change of venue to Klamath County, on the ground that she could not get a fair trial in Jackson County due to the coverage that her case had received in the press. Four days after the complaint and change of venue motion were filed, plaintiff's attorney of record, G. Jefferson Campbell, Jr., began serving a 60-day suspension from the practice of law.1 During that suspension period, plaintiff filed a reply to the county's response to the motion to change venue. The reply was signed by William S. Dames, as an attorney for G. Jefferson Campbell, Jr., P.C. With the venue motion still pending, the county filed a motion for summary judgment. In that motion, the county argued that all three of plaintiff's claims were barred by issue or claim preclusion, because the same claims and underlying facts had been previously litigated in plaintiff's federal case. In support of the motion, the county, through a declaration from its counsel, offered copies of the district court opinion granting summary judgment and the Ninth Circuit's memorandum disposition. The county's counsel further averred that he had reviewed plaintiff's complaints in both federal and state court and that "[h]er federal complaint contained 105 paragraphs of preliminary factual allegations," all but four of which were included in her state complaint as a "verbatim repetition of the federal allegations." The following day, the trial judge assigned to the case, Judge Arnold,
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The suspension was based on Campbell's conduct in a different case. In re Campbell, 345 Or 670, 202 P3d 871 (2009).
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denied plaintiff's venue motion. In his order, Judge Arnold stated that "[n]one of [plaintiff's] reasons constitutes justification for granting the motion." He then went on to explain that he had not considered plaintiff's reply brief on the motion because he believed that, notwithstanding Dames's signature on the brief, Campbell had actually written it during his suspension and was thereby engaged in the unauthorized practice of law. Judge Arnold simultaneously sent a letter to the Oregon State Bar detailing his suspicion that Campbell was engaged in the unauthorized practice of law. (The Bar later investigated the accusation and found insufficient evidence that Campbell--as opposed to his paralegal--had drafted the brief for Dames's review.) Two months after the venue motion was denied, on the morning of July 13, 2009--the day scheduled for a hearing before Judge Arnold on the county's summary judgment motion--plaintiff filed a motion to disqualify the judge and to have the case reassigned to another judge.2 Later that day, Judge Arnold commenced the summary judgment hearing by stating, "A motion was filed today to disqualify me. That motion is denied." The parties then argued their respective positions on summary judgment; nothing more was said of the motion to disqualify. The court ultimately granted defendant's motion for summary judgment, explaining: "It is for this Court to determine whether or not issues remain in this case to be decided after the 9th Circuit's order.

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Plaintiff further requested that the action not be assigned to one of three other Jackson County judges, each of whom had previously been involved in criminal or civil forfeiture proceedings involving plaintiff.
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"Defendant's motion for summary judgment analyzes on a claim by claim basis how the opinion of the 9th Circuit, in affirming parts of the District Court's opinion has decided the issues presented in plaintiff's 56 page, 120 paragraph complaint. "In attempting to argue against the motion for summary judgment, plaintiff does not point to any of her 120 paragraphs of allegations which have not been decided. Rather, she paints with a broad brush that something remains. This Court has reviewed the entire complaint for undecided issues and has found none. "The Court finds that the motion for summary judgment is well taken, that all of the issues raised in plaintiff's complaint have been decided adversely to plaintiff and grants the motion. * * *" The court entered judgment accordingly, and plaintiff now appeals. Plaintiff advances two assignments of error. In her first assignment, she contends that her state common-law claims survived the federal court action and that the court therefore erred in granting summary judgment. In her second assignment, she contends that Judge Arnold erred in ruling on a motion to disqualify when he was the very subject of the motion. We address her assignments in that order. As previously set out, the trial court granted the county's motion for summary judgment on the ground that "all of the issues raised in plaintiff's complaint have been decided adversely to plaintiff" in an earlier federal action. It is therefore necessary to discuss the pleadings and procedural history of that earlier action in some detail. Plaintiff's federal complaint alleged five separate claims for relief against the county and its actors, four of which are relevant here.3 Her first claim was brought under

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Plaintiff also alleged claims against a private veterinarian and a claim for "treble damages for violation of Oregon Property Protection Act of 2000, Article XV, Sec. 10, Constitution of the State of Oregon." Those aspects of the federal complaint are not
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42 USC section 1983 for "money damages to redress the deprivation by the Defendants of the civil rights secured to the Plaintiff." Among those alleged civil rights violations were deprivations of her rights to due process, to be free of unreasonable searches and seizures, and to not have her property taken without just compensation. Plaintiff's second claim for relief was for "trespass to real property" and was based on the theory that, "[b]etween May 8, 2001 and August 1, 2001, the Defendants, as alleged, made continual and repeated entries onto Plaintiff's property without the Plaintiff's consent or knowledge, and without any search warrant or other legal justification or excuse." Her third claim was for trespass to chattels. She alleged that she was the owner of rabbits, other animals, and various other items of personal property that were seized or harmed by the county. She further alleged that "[d]efendants, by and through the acts alleged, intentionally interfered with the Plaintiff's right to possession of her personal property and chattel by entering onto the Plaintiff's property and seizing the same, as alleged, all without Plaintiff's consent and without any lawful authority and excuse, and thereby committed a trespass as to such items of personal property and chattel." Plaintiff's fourth claim was for conversion of plaintiff's "rabbits and personal property." She alleged that the county and its agents had "intentionally converted the Plaintiff's rabbits and personal property to their own use, or the use of others, and deprived the Plaintiff of her right to ownership and possession thereof," and that she "did not consent to the conversion of her personal property and the acts and conduct of the Defendants, as alleged, were without legal justification and excuse." germane to this appeal.
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The county and its agents moved for summary judgment on all claims in the federal complaint, arguing, among other contentions, that the county's agents had qualified immunity and that plaintiff had failed to give proper notice of her state law claims as required by the Oregon Tort Claims Act (OTCA). The district court began its analysis by addressing the section 1983 claim. The court explained that it would take a two-step approach to the question whether the individual county defendants had qualified immunity: First, "the court must determine whether defendants violated plaintiff's constitutional rights"; second, assuming that there was a violation, "the court proceeds to determine whether that right was 'clearly established' such that 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Scott v. Jackson County, 403 F Supp 2d 999, 1005 (D Or 2005) (quoting Saucier v. Katz, 533 US 194, 201-02, 121 S Ct 2151, 150 L Ed 2d 272 (2001)). The court then applied that twostep approach to the alleged constitutional violations underlying the section 1983 claim and, as to each allegation, concluded either that no violation occurred or that, even if it did, the county agents reasonably believed that their actions were lawful. With respect to the common-law claims for trespass to land, trespass to chattels, and conversion, the district court agreed with the county's contention that plaintiff failed to give the requisite tort claim notice under Oregon law. The court explained that, under the OTCA, in order to bring an action against a public body or its agents, the plaintiff must give notice to the public body within 180 days of the alleged injury or loss. See ORS 30.275(1), (2)(b); ORS 30.275(3)(a), (b) (notice may be "formal" or "actual"). The only notice--a "cryptic" reference by plaintiff's attorney, during a
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criminal proceeding, to a claim against the county--was, in the district court's view, insufficient as a matter of law. Thus, the court granted defendant's motion for summary judgment as to each of the state tort claims. Plaintiff appealed the district court's grant of summary judgment. The Ninth Circuit, in an unpublished memorandum opinion, affirmed the judgment in some respects but reversed in others. Scott, 297 Fed Appx 623. Initially, the Ninth Circuit held that the district court "erred in wholly ignoring" plaintiff's complaint as evidence at the summary judgment stage; "[a] verified complaint may be treated as an affidavit to the extent that the complaint is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify." Id. at 624 (internal quotation marks omitted). The Ninth Circuit then turned to plaintiff's section 1983 claim, and her contention that, "between May 8, 2001, and August 1, 2001, the County engaged in several warrantless searches and seizures of her property in violation of the Fourth Amendment." Id. at 625. The court held that, contrary to the district court's approach, there was no need to reach the merits of plaintiff's contentions. The "statute of limitations for

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