Opinion
87C-11362; CA A64680
Argued and submitted September 11, 1991
Affirmed April 22, 1992 Reconsideration denied September 2, 1992 Petition for review denied September 29, 1992 ( 314 Or. 391)
Appeal from Circuit Court, Marion County.
Rodney W. Miler, Judge.
Karl G. Anuta, Portland, argued the cause for appellants. With him on the briefs was Jolles, Sokol Bernstein, P.C., Portland.
Harrison Latto, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Deits and De Muniz, Judges.
DEITS, J.
Affirmed.
Plaintiffs were victims of fraudulent and illegal securities transactions by David Hunt during the period 1982 to 1985. They brought this action against defendants, the Corporation Division of the Department of Commerce and its commissioner and assistant commissioner. They allege that defendants conducted investigatory and remedial actions against Hunt pursuant to their authority under various provisions of ORS chapter 59 and that, during that process, they learned the identity of plaintiffs and knew that they were continuing victims of Hunt's fraudulent activities. Plaintiffs contend that defendants were negligent in not warning them about Hunt's activities or advising them of the department's investigative and remedial efforts.
The trial court granted a summary judgment on the ground that defendants enjoyed discretionary immunity under ORS 30.265 (3)(c). Plaintiffs appeal. The arguments of the parties are lengthy and detailed, but they are susceptible to a short answer. The essence of plaintiffs' position is that defendants are not entitled to immunity under ORS 30.265(3)(c), because their failure to warn plaintiffs did not entail a "policy judgment" but was simply a non-decision or a failure even to consider taking action to protect plaintiffs and, accordingly, it was not a discretionary act.
ORS 30.265(3)(c) provides:
"(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:
"* * * * *
"(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."
The statutes in question confer broad enforcement and remedial authority on defendants concerning the regulation of securities transactions in Oregon. However, the statutes do not mandate particular enforcement or remedial procedures and do not specify that notice of the kind that plaintiffs claim entitlement to must be given in connection with whatever procedures are undertaken by defendants. Although, from plaintiffs' standpoint, it certainly would have been desirable for defendants to have advised them about what was happening, the statutes confer discretion on defendants to conduct the investigation exactly as they did. As was the case with the agency in Miller v. Grants Pass Irrigation, 297 Or. 312, 318, 686 P.2d 324 (1984), "either action or inaction was discretionary" here, and defendants are immune.
Plaintiffs argue that they were entitled under ORS 59.295 to notice of certain orders in connection with defendants' investigation. There simply is no such requirement in that statute, and there is also no other source that affirmatively required defendants to give plaintiffs the information.
Plaintiffs also argue that, under principles pertaining to duty and foreseeability that the Oregon courts have developed in recent years, there was a question of fact as to whether defendants' conduct was unreasonable and redressable in a common law negligence action. However, because defendants are immune, it is immaterial whether they were negligent.
Affirmed.