Filed: August 8, 2002

TONENIA JENSEN, as guardian

for Vanessa Gurkin, a child,

Plaintiff,

v.

CLIFFORD WHITLOW, CUBAZELL O'NEILL,

KATHLEEN M. POWERS, RUTH MARTEN,

MIKE LUTZ, WILLIAM EDGES, and

HEDGES & MITCHELL, PC, an

Oregon corporation,

Defendants.

En Banc

On certified questions from the United States District Court for the District of Oregon dated December 28, 2000; certification accepted January 30, 2001.

Michael R. Hogan, Chief Judge.

Argued and submitted September 11, 2001.

Mark Morrell, Portland, argued the cause and filed the brief for plaintiff.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for defendants. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Maureen Leonard and Kathryn H. Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Gerald H. Itkin, and Thomas Sponsler, County Attorney, Portland, filed a brief on behalf of amicus curiae Multnomah County.

William F. Gary, Jerome Lidz, James E. Mountain, Jr., and Harrang Long Gary Rudnick PC, Eugene, filed a brief on behalf of amicus curiae Oregon Health and Science University.

Harry Auerbach, Senior Deputy City Attorney, Portland City Attorney's Office, Portland, filed a brief on behalf of amicus curiae League of Oregon Cities.

DE MUNIZ, J.

Certified questions answered.

DE MUNIZ, J.

This court accepted certification of the following

questions from the United States District Court for the District

of Oregon:

"1. Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against only the public body violate Article I, section 10, of the Oregon Constitution?

"2. Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against the public body violate Article I, section 17, of the Oregon Constitution?

"3. Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against only the public body violate Article I, section 20, of the Oregon Constitution?"

See ORS 28.200 et seq. (describing certified question process); ORAP 12.20 (prescribing procedures for consideration of certified questions); see also Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 811 P2d 627 (1991) (discussing factors court considers in exercising discretion to accept certified questions).

As a preliminary matter, it is important to clarify the exact nature of the constitutional challenges presented in the certified questions. The United States District Court initially certified a single question to this court: "Does ORS 30.265(1), on its face or as applied, violate the terms of Article I, sections 10, 17, or 20, of the Oregon Constitution?" This court divided the district court's question into six separate questions -- one "facial" challenge and one "as-applied" challenge for each constitutional provision. Having rephrased the questions as such, this court then declined to consider any of the questions framed as an "as-applied" challenge. We declined to consider the "as-applied" challenges because, in most cases, a record containing evidence of the nature of the injury sustained by a plaintiff and a jury's assessment of an appropriate damages award is a necessary prerequisite to this court's consideration of an "as-applied" challenge to a statute such as ORS 30.265(1). Because this case is in a very preliminary stage, that kind of record is not present. That said, we turn to the procedural history of this case in the United States District Court, and provide a brief historical overview of the Oregon Tort Claims Act, ORS 30.260 et seq.

I. PROCEDURAL HISTORY

Plaintiff filed a complaint in the United States District Court on behalf of her minor daughter, Gurkin. Plaintiff alleged that a male foster parent had abused Gurkin while she was in the custody of Children Services Division of the State of Oregon (CSD). (1) Plaintiff further alleged that individual agents and employees of CSD were negligent in placing Gurkin in that foster parent's home and, therefore, were responsible for the sexual abuse that the foster parent inflicted on Gurkin. The individually named defendants moved to strike and dismiss the claims against them and to substitute the state as the sole defendant in accordance with ORS 30.265(1). (2)

While that motion was pending, plaintiff moved the district court to certify questions to this court.

In 1967, the legislature passed the Oregon Tort Claims Act (OTCA), which abrogated, in part, the state's sovereign immunity. See Or Laws 1967, ch 627 (first tort claims act in Oregon). Although the 1967 version of the OTCA limited the state's liability, it did not do so for officers, employees, or agents.

The legislature revised the OTCA in 1975, requiring, rather than permitting, a public body to indemnify its officers, employees, and agents against tort claims "arising out of an alleged act or omission occurring in the performance of duty." Smith v. Pernoll, 291 Or 67, 71, 628 P2d 729 (1981); 1975 Or Laws, ch 609,