Musser et al v. Jackson County et al
Filing
22
OPINION AND ORDER: For the reasons stated in this Opinion and Order, the Defendant's Motion to Dismiss 4 is granted. Plaintiff's Complaint is dismissed. Dismissal shall be without prejudice and with leave to file an amended com plaint within thirty (30) days of this Order if the Plaintiffs are able to cure the deficiencies identified in this Opinion and Order. Please access entire text by document number hyperlink. Signed on 05/09/2024 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
DONNIE MUSSER, an individual, and ZOE
MUSS~R, an individual,
Case No. 1:23-cv-01607-CL
Plaintiffs,
v.
OPINION AND ORDER
JACKSON COUNTY, a political subdivision ofthe
State of Oregon, ALICA BROWN, an individual, and
SHELLY EICH, an individual,
Defendants.
CLARKE, Magistrate Judge. •
Plaintiffs allege claims against Jackson County and two individual Jackson County
officials, Alicia Brown and Shelly Eich, arising out of a citation given to Plaintiffs by Jackson
County Code Enforcement. Plaintiffs bring claims for wrongful use of civil proceedings, and for
a violation of their due process rights under the Fourteenth Amendment of the United States
Constitution. Full consent to magistrate jurisdiction was entered on January 23, 2024 (#17). The
. Defendants move to dismiss Plaintiffs' Complaint. For the reasons below, the motion to dismiss
(#4) is GRANTED.
Page 1 OPINION AND ORDER
BACKGROUND
As alleged in Plaintiffs' Complaint ("Compl.") (ECF #1), Plaintiffs entered into a written
lease with a tenant in November, 2020, to lease the Property for purposes of growing industrial
hemp. 17. On April 15, 2021, Defendant Shelley Eich, a code enforcement officer for.Defendant
Jackson County ("the County"), conducted an investigation of greenhouses on the Property that
had been erected by Plaintiffs tenant. 18. A case,was initiated in the County's records, alleging
unpermitted structures, but the case was eventually closed. Id.
On February 4, 2022, Defendant Eich issued citation number 439-22-00062-COD to
Plaintiffs. 19. The citation alleged that Plaintiffs violated Jackson County Code 1420.4 by
failing to obtain agricultural exemptions or structural permits for twenty greenhouse structures·
and failing to obtain electrical permits for the same twenty greenhouses. Id. The citation sought a
total fine of$40,000. Id. A hearing was held on May 31, 2022, before an Administrative
.Hearings Officer of Jackson County. Plaintiffs appeared at the hearing and defended the case
through their privately retained counsel. At the hearing, Defendant Eich testified that the
greenhouses at issue were erected for the purpose of growing crops therein, and that the
greenhouses were served by consumer electrical products such as gas-powered generators,
extensioncords, and string lights, which, according to her testimony, all required electrical
permits. 110. On June 24, 2022, an Order with Findings of Fact and Conclusions of Law was
issued that included a money judgment against Plaintiffs in the amount of $40,000, sustaining
each of the alleged violations. 1 11.
On July 12, 2022, Plaintiffs timely filed a petition for writ of review of the Order in
Jackson County Circuit Court, seeking to reverse or remand the Order. 1 12. The Jackson County
Circuit Court heard oral argument on the petition on April 10, 2022, and entered an Order and
Page 2 OPINION AND ORDER
Judgment and Money Award, reversing the prior Order in favor of the Plaintiffs on July 13,
2023. ~ 16. The Judgment reversed the prior Order's finding of 20 violations of JCC 1420.4 for
failure to obtain building permits for the greenhouses and remanded the finding of 20 violations
for failure to obtain electrical permits for further proceedings within 30 days. Pursuant to the
terms of the Judgment, any further proceedings as to the electrical permit violations were to be
'1
deemed dismissed with prejudice if not commenced within 30 days of remand. No further
proceedings:were initiated, and these claims were deemed dismissed.~ 16.
, RELEVANT STATUTES AND CODES
The language of the Oregori Statutes and Jackson County code provisions at issue in this
case are given here, in relevant part.
It shall be a violation of this section for any person to build,
construct, maintain, enlarge, alter, repair, move, change the
character use of a building or structure regulated by the State
Building Code, or cause any such work to be done, or to install any
electrical, gas, mechanical, or plumbing systems regulated by the
State Building Code or to occupy any premises, including dwellings,
or other buildings or structures, unless all permits required for such
premises under any prevailing law have been obtained and are in
force and, if required, a certificate of occupancy has been obtained.
Jackson County Codified Ordinance ("JCCO") 1420.04. Def. MSJ Ex. 3 (ECF #5-3).
Oregon state law allows exemption from the requirement for a building permit and
inspections under the Oregon State Structural Specialty Code when the proposed building meets
agricultural-building requirements: "'Agricultural building' means a structure located on a farm
and used in the operation of the farm for: (A) Storage, maintenance, or repair of farm machinery
and equipment; [or] (B) The raising, harvesting and selling of crops." ORS 455.315(2)(a)(A-B).
The Oregon Department of Consumer and Business Services ("DCBS"), Building Codes
Division, has offered an analysis of this agricultural exception through a Statewide Statutory
Page 3 -.OPINION AND ORDER
Interpretation. Def. MSJ Ex. 1, p. 8-9. The Statewide Statutory Interpretation states that ''the
determination of what constitutes a farm or forest operation is vested with the local planning
•department in conjunction with adopted zoning ordinances."
In Jackson County, the local planning department determines what constitutes a farm
operation for purposes of an agricultural exemption in conjunction with the County's Land
Development Ordinances ("LDO"). 1 LDO Table 4.2-1 (2) defines uses for Exclusive Farm Use
(EFU); it allows "buildings, other than dwellings, customarily provided in conjunction with farm
use," as a "Type 1 use" under the EFU. The.LOO also provides for a Type 1 use authorization
process in when a property is being evaluated for purposes of an agricultural exemption:
Zoning Information Sheets ... are used to: (1) provide information
regarding the status of development; (2) ensure compliance with all
standards and procedures of this Ordinance; and, (3) to authorize
Type 1 uses.
LDO 3.1.l(C). The LDO also provides that:
Type 1 uses are authorized by right, requmng only nondiscretionary staff review to demonstrate compliance with the
standards of this Ordinance. A Zoning Information Sheet may be
issued to document findings or to track progress toward compliance.
LDO 3.1.2.
A Jackson County Memo from the Code Enforcement Division Manager, Defendant
• Alicia Brown, to the Code Enforcement Officers on October 28, 2021, with subject line, "ZIS
requirements pursuant to LDO Ch. 3.1.l(C)," confirms this process for agricultural exemptions:
Jackson County Planning Department currently requires a Zoning
Information Sheet (ZIS) for Type 1 uses as outlines in LDO ch.
3.1.l(C). When the Planning Department receives a ·request for an
agriculturally exempt structure, staff create an individual ZIS for
. each structure ... The applicant is required to pay an individual ZIS
fee for each structure for which they are requesting certification.
1
The current version of Jackson County's LDO can be found at
https://www.jacksoncountyor.gov/departments/development services/planning/land development ordina •
nce.php.
Page 4 - OPINION AND ORDER
This process is currently only conducted through a formal
appointment process .... [For this reason] Code Enforcement shall .
likewise consider every unlicensed •/ unpermitted structure on a,
property to be an individual violation.
•
Def. MSJ Ex. 1 (ECF #5-1) p. 11.
Recently, the Oregon Land Use Board of Appeals evaluated Jackson County's process
for authorizing a Type 1 use; or an agricultural exemption, under the LDO. Mede/la Bison
Ranch, LLC, v. Jackson County, 2023 WL 2388666, at *6 (LUBA No. 2022-020, Feb 23, 2023).
LUBA found that Jackson County's process ofreview for authorizing an agricultural exemption
did not exceed its jurisdiction, as contemplated by the Oregon State Structural Specialty Code:
the county's review process does not apply any additional criteria
that supplement [the Oregon statute]. The county has not adopted or
applied additional criteria to buildings customarily provided in
conjunction with farm use .... the purpose of Type 1 review is to
ensure that the prnposed building is in fact a building customarily
provided in conjunction with farm use and that the building will be
constructed. and used in compliance with other applicable
regulations, such as floodplain and fire safety.
In sum, the County requires either a building permit or an authorized Type 1 use
agricultural exemption when_new structures are being built and JCCO 1420.04 applies.
LEGAL STANDARD
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter that "state[s] a claim to relief that is plausible on its face." Bell At!.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual
allegations allow the court to infer the defendant's liability based on the alleged conduct.
Page 5 - OPINION AND ORDER
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the
mere possibility of misconduct." Id. at 678.
When considering a motion t dismiss, the Court must accept all allegations of material
fact as true and construe those facts in the light most favorable to the non-movant. Burgert v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661,663 (9th Cir. 2000). But the court is "not
bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at
555. If the complaint is dismissed, leave to amend should be granted unless "the pleading could
not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
DISCUSSION
Plaintiffs allege two claims for relief against the Defendants: 1) wrongful use of civil
proceedings; and 2) violation of Plaintiffs' due process rights under the Fourteenth Amendment.
The Defendants move to dismiss both claims for failing to adequately state a plausible claim for
relief. The Court agrees. Plaintiffs' Complaint is dismissed.
1. Plaintiffs fail to state a claim for wrongful use of civil proceedings.
To state a claim for wrongful use of civil proceedings, a plaintiff must properly allege:
1. The commencement and prosecution by the defendant of a
judicial proceeding against the plaintiff;
2. The termination of the proceeding in plaintiffs favor;
3. The absence of probable cause to prosecute the action;
4. The existence of malice, or as is sometimes stated, the
existence of a primary purpose other than that of securing an
adjudication of ,the claim; and
5. Damages.
Vazquez v. Reeves, 138 Or. App. 153,156,907 P.2d 254,255 (1995) (quoting Alvarez v. Retail
Credit Ass'n, 234 Or. 255,259,381 P.2d 499 (1963)). The first two elements are not at issue
Page 6 - OPINION AND ORDER
here. The Defendants challenge the third and fourth elements as insufficiently pled: lack of
probable cause, and malice.
a. Plaintiffs fail to adequately plead that Officer Eich lacked probable cause to
issue the citation.
Plaintiffs were cited by Officer Eich for two violations of JCCO 1420.04, alleging that
Plaintiffs failed to obtain agricultural exemptions or structural permits for twenty greenhouse
structures and failed to obtain electrical permits for the same twenty greenhouses. In a claiin for
wrongful use of civil proceedings, "'probable cause' means that the person initiating the
underlying action 'reasonably believes' that there is a good chance of prevailing, viz., the person
'has that subjective belief and that belief is objectively reasonable." Mohabeer v. Farmers
Insurance Exchange, 318 Or. App. 313, 318 (2022), (citing Roop v. Parker Northwest Paving
Co., 194 Or. App. 219~ 237-38 (2004), rev. den., 338 Or 374 (2005)). The standard for probable
• cause to bring a civil action is less stringent than that required to prosecute a criminal action.
Blandino v. Fischel, 179 Or. App. 185, 190, 39 P.3d 258, rev. den., 334 Or. 492, 52 P.3d 1057
(2002); see .also Restatement § 675 comment j (the question is not whether the litigant is correct
in believing that the claim is tenable, but whether that belief is reasonable). 2
Here, regarding probable cause, Plaintiffs allege:
Defendants lacked probable cause to prosecute the action because
Defendants lacked a reasonable basis to pursue the prior proceeding
against Plaintiffs. Indeed, as to both issues that Defendants
contended constituted a violation that Plaintiffs were responsible
for, the Defendants knew or should have known that they lacked
jurisdiction to require permits they contended in the action were
required.
Compl. ,r 22. The Court agrees that this allegation is conclusory and lacking in factual basis.
2
Similarly; under JCCO Chapter 203.0l(b), a code enforcement officer may issue a citation "for
violations for which the officer has reasonable grounds that the conduct constitutes a violation."
Page 7 - OPINION AND ORDER
Plaintiffs concede in the Complaint that greenhouses were indeed erected by their tenant on the
Property, (Compl.
~~
7-8), and they do not allege that permits were obtained for those structures,
nor do they allege that exemptions were obtained through the County's agricultural exemption
process. Therefore, while Plaintiffs may have had valid defenses or arguments regarding the
legality of the structures that were built on the Property, they have not alleged that Officer Eich
lacked a subjective belief that was objectively reasonable, that JCCO 1420.4 applied to the
Property at the time of the citation. No facts are alleged at-all to support the conclusion that the
Defendants "lacked jurisdiction to require permits." Finally, _while Plaintiffs allege that the
judgment against them was reversed by the Jackson County Circuit Court, the Order and .
Judgment itself does not comment as to whether probable cause existed at the time the citations
were issued. For these reasons, Plaintiffs' claim for wrongful use of civil proceedings fails.
b. Plaintiffs fail to adequately plead that Officer Eich issued the citation with
malicious intent.
•
Because the Court has determined that Plaintiffs fail to properly allege a lack of probable
cause, the claim for wrongful use of civil proceedings must be dismissed. However, for purposes
of judicial efficiency, and in order to give notice to Plaintiffs, who may decide to amend their.
complaint, the Court will address the issue of malice as well.
"Malice," in the context of a wrongful-initiation claim, is "the existence of a primary
purpose other than that of securing an adjudication of the claim." Erlandson v. Pullen, 45 Or.
App. 467,477 (1980). "The malice required in an action for malicious prosecution is not limited
to actual hostility or ill will toward plaintiff but exists when the proceedings are instituted
primarily for an improper purpose.'; Albertson, 46 Cal.2d at 382. Examples of an "improper
purpose" are "(1) the person initiating the [proceedings] does not believe that his claim may be
held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the
Page 8 - OPINION AND ORDER
proceedings are initiated solely for the purpose of depriving the persori against whom they are
initiated of a beneficial use of his property; [or] (4) the proceedings are initiated for the purpose
of forcing a settlement which has no relation to the merits of the claim." Id. (quoting Restatement
(Second) ofTorts § 676, cmt. c).
Plaintiffs allege that malice exists in this case because the Defendants' "primary purpose
'
was to punish Plaintiffs for renting their land to persons who grew a crop that their Board of
Commissioners disapproved of, rather than in securing a just adjudication of the claim." Compl.
,r 24. Plaintiffs point to three factual allegations purporting to support this claim: First, Defendant
Eich testified that the greenhouses at issue were erected for the purpose of growing crops therein
and that the greenhouses were served by consumer electrical products such as gas-powered
generators, extension cords, and strin$ lights, whicl:i-, according to her sworn testimony, all
required electrical permits. Compl.
,r 10. Second, in a conversation on March 24, 2023, Plaintiff
Donnie Musser asked the Director of Jackson County Development Services, Ted Zuk whether
the use of gas-,-powered generators, extension cords, and string lights used to light the interior of
hoop house used for the growing of crops would require an electrical permit. Compl.
,r 13. Mr.
Zuk stated that, as long as each of the products were UL listed equipment, an electrical permit is
not required. Id. Third, Plaintiffs point to the Counfy's "true motivation" in issuing the citation,
which Plaintiffs claim is evidenced by a comment made by counsel, who stated at an oral
argument hearing:
The Board of Commissioners; a few years ago now, several... at,
least three years ago, issued guidance to my department [Jackson
County Counsel's office] and to the Development Services and Code
Enforcement Department - if we see violations occurring that are
based on anything that has to with ... the growing of cannabis or
industrial hemp, any of that, we are to issue fines even if the
individuals come into compliance after they are cited.
Page 9 - OPINION AND ORDER
Compl.114.
Even if all three of these factual allegations are true, they fail to adequately allege malice
•sufficient for a wrongful-initiation claim. The first allegation shows that Eich had the subjective
belief necessary for probable cause. The second allegation shows th~1t there is some dispute
within County offices regarding whether permits were necessary for the electrical modifications
made on Plaintiffs' land, but it does not show that Defendant Eich herself had any particular
understanding about whether electrical permits are required or not. There are no allegations that
Eich did not believe the claims on the citation were valid, nor that she issued the citation for an
improper purpose. Finally, the policy statement or directive by the Board of Commissioners,
indicating that citations should be fully prosecuted, without leniency, does not factually support a
claim of malice. The directive, as related by counsel, directs code officers to prosecute without
leniency "violations [that are] occurring." The statement does not direct anyone to issue
citations for conduct that is not a violation, or to issue citations without probable cause, or any
other form of wrongful prosecution. Nothing in the JCCO requires the County to be lenient; nor
to allow individuals to come into compliance and avoid prosecution.
Because Plaintiffs have not properly alleged malice or a lack of probable cause, the claim
for wrongful use of civil proceedings fails. This claim is dismissed without prejudice. If
Plaintiffs choose to file an amended complaint, care should be taken to state factual allegations
that support both a lack of probable cause and a malicious intent.
2. Plaintiffs'.due process claim fails to state a claim for relief.
Plaintiffs appear to assert two alternative claims under the broader umbrella of a due
process violation: a void-for-vagueness claim and a substantive due process claim. Both claims
fail to state a plausible claim for relief.
Page 10 - OPINIQN AND ORDER
a. The County rules are not impermissibly vague.
"A statute can be iinpermissibly vague for either of two independent reasons. First, if it
fails to provide people of ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory
enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000). In deciding whether a statute is
unconstitutionally vague, the court must. consider the regulations purporting to construe the
statute in addition to the statute itself See United States Civil Serv. Comm'n v. Nat'! Ass'n of
Letter Carriers, 413 U.S. 548 (1973) (rejecting a challenge to a statute as unconstitutionally
vague and overbroad after considering the statute and the regulations construing the statute).
Plaintiffs' Complaint states that Defendant Jackson County deprived the Plaintiffs of
their right to have local legal rules "be defined with sufficient clarity such that people-of
reasonable intelligence will _be able to discern what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement." Compl.
~
'
'"-
27. Plaintiffs also
assert that the directive by the Board of Commissioners to enforce citations against cannabis
growers, "was not committed to writing in a manner that was accessible to the general public
because it was issued as a statement of political policy rather than as an official policy in the
form of a provision of Jackson County Code." Id.
The plain language of JCCO states that it is unlawful for a person to build, construct,
maintain, enlarge, alter, repair, move, change the character use of a building or structure
regulated by the State Building Code, or cause any such work to be done, or to install any
electrical, gas, mechanical, or plumbing systems, without a permit. As di?cussed above, an
agricultural exemption exists to this permitting rule, see ORS 455.315(2)(a), and receiving that
exemption also requires a process. Def. MSJ Ex. 1 (ECF #5.;.1) p. 11. Requiring a process in
Page 11
OPINION AND ORDER
order to receive an agricultural exemption, on its own, does not make the JCCO permitting rules
vague, nor does it encourage arbitrary or discriminatory enforcement, and Plaintiffs have not
alleged facts to support such a conclusion.
Similarly, the County's policy,whether written or unwritten, of enforcing the permitting
rules without allowing leniency does not make the rules vague or likely to be arbitrary because it
does not change what is required under the rules-to receive or avoid a citation. Based on the
facts alleged, therefore, the rules are not void for vagueness and this claim is dismissed.
b. The County's policy does not violate Plaintifr s substantive due process rights.
In their Response to the summary judgment motion, Plaintiffs assert that they intend to
bring a substantive due process claim: "as applied here, the County's policy had the effect of
disregarding the statutory exemption for structural permits for agricultural buildings found in
ORS 455.315 and disregarding the extent of the County's jurisdiction for its electrical permitting
authority over ordinary consumer electrical equipment." The Court notes, first, that the
Plaintiffs' Complaint does not mention ORS 455.315 a single time. Nevertheless, even if it did,
. the Court agrees with the Defendants that these allegations fail to state a substantive due process
violation.
The Due Process Clause of the Fourteenth Amendment provides that no state shall
"deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend.
XIV,§ 1. "To state a prima facie substantive or procedural due process claim, one must, as a
threshold matter, identify a liberty or property interest protected by the Constitution." United
States v. Guillen-Cervantes, 748. F.3d 870,872 (9th Cir. 2014). "Substantive due process protects
individuals from. arbitrary deprivation of their liberty by government. " Sylvia Landfield Tr. v.
City of Los Angeles, 729 F.3d 1189, 1195 (9th Cir. 2013). Only "the most egregious official
Page 12 - OPINION AND ORDER
conduct can be said to be arbitrary in the constitutional sense." Cnty. ofSacramento v. Lewis,
523 U.S. 833, 846 (1998) (internal quotation marks and citation omitted). "To constitute a
violation of substantive due process, the alleged deprivation must shock the conscience and
offend the community's sense of fair play and decency.''. Sylvia Landjield, 729 F .3d at 1195
(internal quotation marks and citation omitted). The Supreme Court has held "that the 'shock the
conscience' standard is satisfied where the conduct was intended to injure in some way
unjustifiable by any government interest or in some circumstances if it resulted from deliberate
indifference." Rosales-Mireles v. United States, 585 U.S. 129, 138 (2018) (internal quotation
marks and citation omitted).
However, "[g]overnmen~ action that affects only economic interests does not implicate
fundamental rights." Samson v. City ofBainbridge Island, 683 F.3d 1051, 1058 (9th Cir. 2012).
Where fundamental rights are not implicated, the government action is reviewed only for,'a
rational basis. Witt v.·Dep't. ofAir Force, 527 F.3d 806,817 (9th Cir. 2012). Where rational
basis applies, "the Court determines whether government action is so arbitrary that a rational
basis for the action cannot even be conceived post hoc." Id. Rational basis review is a "highly
def~rential" standard. Flynn v. Holder, 684 F.3d 852, 858 (9th Cir. 2012). "When executive
action like a discrete permitting decision is at issue, only 'egregious official conduct can be said
to be arbitrary in the constitutional sense'; it must amount to an abuse of power lacking any
'reasonable justification in the service of a legitimate governmental objective."' Shanks, 540
F.3d at 1088 (quoting ·cty. ofSacramento v. Lewis, 523 U.S. 833, 846 (1998)). Even "[o]fficial
decisions that rest on an error,teous legal interpretation are not necessarily constitutionally
arbitrary." Shanks, 540 F.3d at 1089.
Page 13
OPINION AND ORDER
Here, Plaintiffs have not alleged any deprivation of a fundamental right, nor any damages
other than economic damages. None of the facts alleged in the Complaint shock the conscience
or offend the community's sense of fair play and decency. Moreover, the Court has already
determined above that Plaintiffs fail to allege a lack of probable cause to issue the citation, thus
eliminating ruiy civils rights claims against Eich or Defendant Brown or the County; This claim
must be dismissed.
·ORDER
For the foregoing reasons, the Defendant's Motion to Dismiss (#4) is granted. Plaintiffs
Complaint is dismissed. Dismissal shall be without prejudice and with leave to file an amended
complaint within thirty (30) days of this Order if the Plaintiffs are able to cure the deficiencies
identified above.
DATED this __Cf_.____ day of May, 2024.
United States Magistrate Judge
Page 14
OPINION AND ORDER
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