author: DeVORE, P. J. James, J., concurring. JAMES, J., concurring.

text:
    Noel M. KING, Plaintiff-Appellant, v. WARNER PACIFIC COLLEGE, an Oregon corporation, Defendant-Respondent.
    A163586
    Court of Appeals of Oregon.
    Argued and submitted May 23, 2018. February 21, 2019
    Andrew Altschul, Portland, argued the cause for appellant. Also on the briefs were Dana L. Sullivan and Buchanan Angeli Altschul & Sullivan LLP.
    Brenda K. Baumgart, Portland, argued the cause for respondent. Also on the brief were Carolyn D. Walker, Dexter J. Pearce, and Stoel Rives LLP.
    Steven T. Collis, Colorado, and Holland & Hart LLP filed the brief amicus curiae for Christian Colleges and Universities.
    Before DeVore, Presiding Judge, and James, Judge, and Brewer, Senior Judge.
   DeVORE, P. J.

This case involves a Christian college that refused to hire a Jewish applicant for a new position as an adjunct psychology professor. The issue concerns the meaning of ORS 659A.006(4), Oregon's religious preference exemption.

Plaintiff appeals from a general judgment of dismissal entered after the trial court granted summary judgment to defendant on plaintiff's religious discrimination claim under Oregon's antidiscrimination statute, ORS 659A.030. Plaintiff argues that the court erred in granting defendant's motion for summary judgment based on its defenses under ORS 659A.006(4) (religious preference exemption) and ORS 659A.030(1)(a) (bona fide occupational qualification). Defendant contends that either one of those two alternative defenses, as well as a constitutional "ministerial exception," permitted religious discrimination in this case.

We conclude that defendant's decision was permissible under the religious preference exemption, ORS 659A.006(4). Without reaching the other defenses, we affirm.

I. PROCEEDINGS

We begin by introducing defendant Warner Pacific College and plaintiff's application to teach there. Later, we provide detail about the college, the position, and the course, which relate to the religious preference exemption. Although the parties disagree about the application of the law, the material facts are undisputed.

Warner Pacific College is a private Christian liberal arts college in Portland. The college describes itself as an "agency" of the Church of God in Anderson, Indiana. Founded in 1937 in Spokane, Washington, it was incorporated as Pacific Bible College and operated to prepare church leaders during its early years. Later, the college relocated to Portland and changed its name to Warner Pacific College to honor one of the early founders of the church. Despite the name change and relocation, the college considers itself to have "always been a Church of God College."

At Warner Pacific, employees are provided with the college's statement of its Employment and Lifestyle Standards. The Standards statement declares, "Central to Warner Pacific's identity as a Christ-centered higher education institution is the policy of hiring persons whose personal and professional lives reflect," among other things,

"1. A belief in the deity of and commitment to Jesus Christ and the Christian faith, as interpreted through the historic witness of Scripture and the continuing ministry of the Holy Spirit.
"2. The practice of following Christ through day-to-day personal lifestyle choices.
"3. A vitality of Christian experience maturing in insight and application and appreciative of differing view-points.
"* * * * *
"6. A capability, by temperament, preparation, and will, to support students as they confront the intellectual, social, physical, emotional, and spiritual challenges of their lives.
"7. A sensitivity to and support for the mission, core themes, vision, values, ethos and traditions of the Warner Pacific College community.
"8. A commitment to teaching and serving in harmony with the doctrines of the Bible as understood and generally held by the Church of God Reformation Movement."

The Standards statement is accompanied by an "Employee Agreement," which provides, in part:

"Mission-based hiring is of critical importance to Warner Pacific College. From its inception, the Church of God has resisted condensing the Scriptures into a formal creed, instead emphasizing salvation as the entrance into the body of Christ; unity in diversity; and a call to holy living as God's people representing Christ in the world. Warner Pacific, rather than requiring subscription to an institutional doctrinal statement, asks each employee to affirm a personal faith in Jesus Christ by providing a statement articulating the ways in which faith informs the employee's understanding of his or her vocation at Warner Pacific. Employees are expected to demonstrate and articulate a vital Christian faith and to live in a manner consistent with a Christ-centered lifestyle as informed by the Scriptures of the New Testament."

The Employment and Lifestyle Standards and the Employee Agreement were posted online in conjunction with an announcement of the opening of the position for which plaintiff applied. The posting added that, "[b]ecause Warner Pacific is a Christian liberal arts college, the college exercises its legal right to hire Christian employees to fulfill its mission and purpose."

In April 2014, plaintiff applied online for a position at Warner Pacific College as an adjunct psychology professor. The online application asked for the applicant's "church fellowship or denomination affiliation," and plaintiff responded, "I am of the Hebrew faith." The application asked the applicant to "[b]riefly describe your Statement of Christian Faith," and plaintiff responded, "My faith is important to me because of the guidelines it has provided regarding how to treat other human beings and the world in which we all reside."

The application required each applicant to read Warner Pacific's Employment and Lifestyle Standards and submit essay responses to two questions:

"1. How does your personal faith reflect the principles stated in terms 1, 2, and 3 of the Employment Standards? ***
"2. How does your personal philosophy of education and commitment to the synthesis of faith and learning reflect the principles stated in items 4, 5, 6, 7, and 8? ***"

Initially, plaintiff submitted his application without answering those two questions, but he later supplemented his application with the answers. In those answers, he reaffirmed his Jewish faith and stated that the "compatibility between [his] life lessons and the teachings of Jesus Christ is undeniable." He elaborated, "While I may not be able to cite many verses from Scripture, I believe that I have lived a life that is consistent with the teachings of both the Old Testament and the New Testament."

The college's hiring committee interviewed plaintiff and asked him to give a teaching demonstration. However, Warner Pacific's president, Dr. Andrea Cook, who is ultimately responsible for hiring decisions, rejected plaintiff's application. Plaintiff was notified that he was not selected because he is not a "Christ-follower." Rather than hire an applicant for the new position, Warner Pacific chose at that time to assign the duties, which the position would have performed, to current employees who were Christian.

Plaintiff sued Warner Pacific, alleging that the college's decision to refuse to hire him on the basis of his religion constituted unlawful religious discrimination under ORS 659A.030 and ORS 659A.006. The parties filed cross-motions for summary judgment.

Warner Pacific argued, for three reasons, that it was entitled to summary judgment despite plaintiff's claim of religious discrimination claim. First, the college argued that the claim was barred by ORS 659A.006(4), which permitted it, as a Christian college, to "prefer" to hire Christians and prefer not to hire non-Christians. Second, the college contended that plaintiff's claim was barred by ORS 659A.030(1)(a), because Christianity was a "bona fide occupational qualification" for the position for which plaintiff applied. Third, the college argued that plaintiff's claim was barred by a "ministerial exception," based on its right to the free exercise of religion, protected by the First Amendment to the United States Constitution and Article I, sections 2 and 3, of the Oregon Constitution.

Plaintiff urged summary judgment in his favor. Primarily, plaintiff contended that Warner Pacific was not entitled to the exemption in ORS 659A.006(4), because the college did not "prefer" a particular Christian applicant over plaintiff. In plaintiff's formulation, when the statute uses the term "prefer," it "requires that a specific applicant be preferred over another" applicant. Plaintiff argued that Warner Pacific cannot reject a non-Christian applicant on the basis of religion if the college does not actually fill the position by hiring a Christian applicant at that time from among applicants in the same applicant pool. Plaintiff appended a footnote in his summary judgment memorandum questioning whether Warner Pacific failed to satisfy an element of ORS 659A.006(4)(c) that requires that the "employment be closely connected with or related to" Warner Pacific's "primary purposes." In that footnote, plaintiff stated:

"While Plaintiff also questions whether Defendant can establish that teaching psychology 'is closely connected with or related to the primary purposes' of [Warner Pacific], as required to establish entitlement to the exemption per ORS 659A.006(4)(c), the Court need not reach this issue due to [Warner Pacific's] failure to establish that it preferred a Christian candidate over Plaintiff."

Plaintiff did not offer an argument or explanation for his doubt about the issue; and he did not respond to the college's evidence and arguments addressed to that issue.

Plaintiff also challenged the college's other affirmative defenses. Plaintiff argued that Christianity was not a bona fide occupational qualification for the adjunct psychology professor position under ORS 659A.030(1)(a) ; and he asserted that the state and federal constitutions did not grant a "ministerial exception" permitting discrimination on the basis of religion in this case.

The trial court granted Warner Pacific's motion for summary judgment and denied plaintiff's cross-motion. The court concluded that ORS 659A.006(4)"protects Warner Pacific's decision not to hire plaintiff, a non-Christian, into the position for which he applied" and added that "Christianity is a bona fide occupational qualification within the meaning of ORS 659A.030(1)(a) for the position for which plaintiff applied." The court did not reach the constitutional arguments about a "ministerial exception."

On appeal, plaintiff renews his primary argument that the religious preference defense in ORS 659A.006(4) is narrowly limited to "preferring" an existing applicant from the current application pool. Without further explanation, he asserts that the college failed to offer evidence that the adjunct psychology professor position is "closely connected with or related to the primary purposes" of Warner Pacific College. Additionally, plaintiff urges two new arguments on appeal. He argues that ORS 659A.006(4)(a) requires that any preferred applicant must be of the same particular church as Warner Pacific, rather than simply be any Christian. And, due to a past hiring decision, plaintiff argues that there is a question of fact whether it is truly the "opinion of [Warner Pacific]" that "the preference will best serve the purposes of [Warner Pacific]" under ORS 659A.006(4)(b), because a professor who attended a Jewish synagogue was on its faculty.

The parties agree that Warner Pacific discriminated against plaintiff on the basis of his religion, but they dispute whether that discrimination was permitted under ORS 659A.006(4) (religious preference), ORS 659A.030(1) (bona fide occupational qualification) (BFOQ), or the state or federal constitutions ("ministerial exception"). The parties recognize that any one of those alternative defenses, if established, would defeat plaintiff's claim of religious discrimination under ORS 659A.030(1)(a).

II. THE RELIGIOUS PREFERENCE EXEMPTION

A. Statutory Scheme

Plaintiff's argument about the terms of the preference exemption presents a question of statutory interpretation about what the legislature intended in ORS 659A.006(4) when it used the terms to "prefer an employee, or an applicant for employment *** over another." When construing a statute, we consider its text, context, and legislative history to discern legislative intent. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

Those critical terms appear in the context of Oregon's statutes prohibiting discrimination in employment. Oregon has declared the "opportunity to obtain employment *** without unlawful discrimination because of *** religion *** to be a civil right." ORS 659A.006(2). To that end, ORS 659A.030(1)(a) prohibits "an employer, because of an individual's *** religion *** to refuse to hire or employ the individual or to bar *** the individual from employment." Religious discrimination in employment constitutes an "unlawful employment practice." Id.

Notwithstanding that proscription, the Oregon legislature has exempted religious organizations from that mandate if certain conditions are met. The statute at issue, ORS 659A.006(4), provides:

"It is not an unlawful employment practice for a bona fide church or other religious institution, including but not limited to a school, hospital or church camp, to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:
"(a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the church or institution;
"(b) In the opinion of the church or institution, the preference will best serve the purposes of the church or institution; and
"(c) The employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution."

When those conditions are met, ORS 659A.006(4) provides an exception that permits religious organizations to discriminate on the basis of religion in employment within their own organizations.

B. To Prefer an Employee or Applicant over Another

The parties frame their dispute urging two very different interpretations of the exception in ORS 659A.006(4). Plaintiff's interpretation gives the college a circumscribed choice; Warner Pacific's interpretation gives the college more flexibility in exercising its choice.

As noted, plaintiff argues that the college did not satisfy the statutory exception, because the college did not "prefer" a particular applicant "over another." Plaintiff reasons that " 'preference' indicates a choice between multiple options" and that "to prefer" refers "to how a candidate's credentials should be weighted vis a vis the credentials of other applicants." As an example, plaintiff cites ORS 408.230, which requires a public employer to accord "preference points" to military veterans in applications for public employment. Implicitly, plaintiff assumes that a religious school must fill a new position and, expressly, plaintiff asserts that the school must hire from among applicants only. Plaintiff argues "that Oregon did not intend to allow a [religious] school to avoid hiring a qualified individual when another qualified individual of a preferred religion did not apply." That argument includes two subordinate assumptions. First, in plaintiff's view, the college could not refuse to hire a non-Christian at the present time in order to prefer a suitable Christian candidate later. Second, in plaintiff's view, the college could not refuse to hire a non-Christian applicant for a new job because it preferred to assign the work to existing Christian employees. In plaintiff's view, the statute permits the college a religious preference only if the college fills the position from among applicants in the present hiring pool.

In the college's view, religious preference permits a choice not to hire at all, to hire later, or to use current employees. The college complains that any other interpretation is contrary to the legislature's evident purpose in enacting the religious exemption. To illustrate, the college posits that, if plaintiff's interpretation governed, then, when a job is posted and only a single applicant responds, a religious organization would be forced to hire a person even if the applicant spurned the faith of the religious organization. According to the college, plaintiff's interpretation would force a religious organization to choose whether to violate Oregon's law (if so construed) or hire a person of a conflicting faith for a position that is "closely connected with or related to the primary purposes of the church or institution." See ORS 659A.006(4)(c) (using that phrase).

The parties' disagreement seems predictable. The legislature has not defined the phrase, "prefer an employee, or an applicant * * * over another," as the phrase is used in ORS 659A.006(4). Because the legislature has not defined those words, we may consider the words' ordinary, plain meanings. PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993). In its most common usage, the central term, "prefer," means: "to have a preference for : choose : like better : value more highly." Webster's Third New Int'l Dictionary 1787 (unabridged ed. 2002). It can mean "to choose as more desirable; like better." The American Heritage Dictionary 976 (second college edition 1982). Helpfully, the term "prefer," appears in the context of the related terms, "over another." Thus, the phrase is comparative. It is suggestive, as plaintiff says, of a "choice between multiple options."

Contrary to plaintiff's view, however, the statute does not specify a preference of an applicant "over another" applicant . Rather, the statute expressly permits a religious organization "to prefer an employee , or an applicant for employment *** over another." (Emphasis added.) Given those additional terms (employee or applicant), the religious preference statute is quite unlike the veteran's preference statute in the public sector, which mandates a comparison of the veteran-applicant with another "applicant" in a present pool of applicants. See ORS 408.230(4) (requiring comparison of points in applicant pool). Consequently, the phrase, "prefer an employee, or an applicant *** over another," raises the questions whether an employer may only prefer an applicant over another applicant, whether an employer may prefer an employee over an applicant, or whether an employer could simply prefer not to hire at this time.

The statute's text suggests an answer. That text explicitly permits a religious organization to "prefer an employee , or an applicant *** over another." (Emphasis added.) Nothing in that language suggests that the legislature meant to prohibit the college from preferring a Christian employee over a non-Christian applicant, by filling the position with a Christian employee. Similarly, nothing in that language suggests that the legislature meant to prohibit the college from preferring not to hire a non-Christian applicant and choosing instead to await a later hiring cycle or to assign the work to a Christian employee. Regardless whether the position is filled or not, both employment decisions accomplish the same purpose. Both are ways to "prefer" an employee of like-faith over an applicant of another faith.

To the extent that it is relevant to the issue at hand, the statutory and legislative history, preceding ORS 659A.006(4), support our reading of its text. That history provides some guidance in understanding the origin of the religious preference exemption and, inferentially, the legislative intention that lies behind the religious preference provision. As we will explain, that history reflects a legislative desire to permit religious organizations to discriminate in employment by favoring members of their own faith within their organizations.

With a Fair Employment Practices Act in 1949, Oregon enacted a ban on employment discrimination in the private sector many years before the federal statute. Or. Laws 1949, ch. 221, §§ 1-14; PSU Association of University Professors v. PSU , 352 Or. 697, 708-09, 291 P.3d 658 (2012) (Oregon's statute enacted "many years" before Title VII of the Civil Rights Act of 1964, 42 USC § 2000e to 2000e-2 ). Under Oregon's Act, "[t]he opportunity to obtain employment without discrimination because of race, religion, color or national origin" was "declared to be a civil right." Or. Laws 1949, ch. 221, § 3 (later codified as former ORS 659.020(2) (1953) ). The refusal to hire or employ, to bar, or to discharge a person in violation of that right was declared an unlawful employment practice. Or. Laws 1949, ch. 221, § 5(1) (later codified as former ORS 659.030(1)(1953) ).

From the outset, however, a religious organization was wholly exempt from the statutory proscription against employment discrimination, because the definition of an "employer" subject to the scheme did not include a "religious association or corporation" at all. Or. Laws 1949, ch. 221, § 4(5) (former ORS 659.010(4) (1953) ). Insofar as the original act was concerned, a religious organization could engage in the several forms of employment discrimination-race, religion, color, or national origin-that subject employers could not. The act remained essentially unchanged until 1969. PSU Association of University Professors , 352 Or. at 708-09, 291 P.3d 658 (observing no intervening changes).

In 1969, House Bill (HB) 1297 was proposed with several original purposes and grew to include others. Among the original purposes, the definition of "employer" was changed to expand the act's coverage from employers with six or more employees to any employer with a single employee. HB 1297, § 1 (amending former ORS 659.010(6) (1967) ). In addition, the wholesale exemption of religious organizations was deleted. Id . In its place, HB 1297 proposed to add an exemption provision, describing more religious organizations, "including but not limited to a school, hospital or church camp," and permitting them to prefer an employee or applicant of one religious sect or persuasion over another "when, in its opinion, such a preference will best serve the purposes of such institution." HB 1297, § 2 (amending former ORS 659.020(2) (1967) ). As introduced, the bill provided the religious exemption without any other conditions or qualifiers. Applicability of the exemption turned solely on the "opinion" of the religious organization.

While the 1969 bill was before the House of Representatives, a committee adopted an amendment including two of three paragraphs that would be added to the religious preference exemption. The amendment permitted an organization to prefer an employee or an applicant of one sect or persuasion over another when:

"(a) That religious sect or persuasion to which the employe[e] or applicant belongs is the same as that of such church or institution; and
"(b) In the opinion of such bona fide church or sectarian religious institution, such a preference will best serve the purposes of such church or institution."

Proposed Amendments to House Bill 1297, Mar. 24, 1969; Minutes, House Committee on Labor and Management, Mar. 24, 1969, 4. A later amendment occurred in the Senate. Minutes, Senate Committee on Labor and Industries, May 7, 1969, 1. A senate committee added a new paragraph requiring that:

"(c) The employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity which has no necessary relationship to the church or institution, or to its primary purposes."

Proposed Second Amendments to House Bill 1297, May 7, 1969.

Representative Connie McCready, a primary co-sponsor of the bill, testified before the Senate committee that the bill was "unique in that it particularly permits discrimination ." Tape Recording, Senate Committee on Labor and Industries, HB 1297, Apr. 23, 1969, Tape 5 (statement of Rep. Connie McCready) (emphasis added). She explained:

"HB 1297 is rather unique in that it specifically authorizes discrimination . *** It would amend [ORS] 659.020 *** to permit religious institutions to show preference in employment to members of their own faith . The original bill was amended in the House side to *** go a little bit more specific in saying that they may discriminate on the basis of religion as long as it is the same religion of the church that is discriminating."

(Emphases added.) She elaborated about the meaning of the proposed legislation: "I interpret [HB 1297] to mean that a Catholic church could not-hire a Christian Scientist practitioner as superintendent of their Sunday school." Id . (emphasis added).

Addressing the last amendment, Representative McCready reported that the legislation would forbid a religious organization that is engaged in an entirely for-profit business enterprise from discriminating against employees who do not share the same faith. She told the committee members that there were instances in Oregon and Utah "where a church bought a for-profit business and then fired all the employees of this business, straight for-profit making business, and hired members of their own religion *** it had nothing to do with the church or the principles of the church. This [legislation] would tighten this up." Id .

Chairman Lent asked Representative McCready whether the church would "have a closed shop setup in regards to business because they own it?" Id . Representative McCready responded, "No, this amendment says that they cannot discriminate on the basis of religion unless this is something particularly related to the church and the teachings itself." Id . The religious organizations would not be allowed to lawfully discriminate on the basis of religion "unless they could prove that this has a direct bearing on their religion."

The legislature revisited the religious exemption in 2007 with Senate Bill (SB) 2, which relocated the religious exemption within the same statute and enacted other provisions relating to religious organizations and sexual orientation. See Or. Laws 2007, ch. 100, § 3 (deleting exemption in former ORS 659A.006(2) ; restating exemption as subsection (4); enacting new provisions on sexual orientation in subsections (3) and (5)). In doing so, the legislature made reference to the existing religious exemption.

In the floor debate, one of the bill's carriers, Representative McPherson, was asked about differences in the bill between subsections (4), the existing religious exemption, and (5), one of the new provisions on religious organizations and sexual orientation. He responded that subsection (4) was in the existing statute and had been a feature of the law that permitted a church to "favor its own members." Audio Recording, House Floor Debate, SB 2, Apr. 17, 2007, at 2:48. He was asked whether "adoption of SB 2 means that a Catholic hospital-say, for example, in Eugene-could refuse an employment to a Baptist or a Muslim under the religious clause but not refuse employment to a gay or lesbian citizen." Id. He responded that "[t]here is a different standard carved out here for employment of one's own membership," and that the standard would be that "one could favor a member of one's own religion" in hiring within the institution, and that subsection (5) sets out a broad exemption for religious organizations to discriminate on the basis of sexual orientation.

His answers corresponded to those that had been given in committee. Addressing a religious organization's exemption, Representative Hunt stated,

"[T]hose terms [closely connected and related to the primary purpose] are specifically used in the current religious exemption that allows a Baptist church to not hire a Catholic or a Mormon or a Jewish person or a Muslim, that is the language already in there. *** [T]he fact that there's not a great body of case law *** demonstrates that language has worked in Oregon in terms of allowing churches to, discriminate is not really the right term, but allowing churches to select applicants for employment from their own religious group or sect as the statute says ***."

Tape Recording, House Committee on Elections, Ethics, and Rules, SB 2, Apr. 10, 2007 (Testimony of Rep. Hunt (emphasis added)); id. ("Section 4 also remains the same in terms of the, allowing, employment practices that would protect, that would allow employers to make decisions based on religious issues ." (Emphasis added.)).

Taken together, the legislative record in 1969 and 2007 shows a consistent understanding of a religious exemption for employment within religious organizations. In 1969, the testimony of the bill's primary co-sponsor reflects that the enactment was intended to "specifically authorize[ ] discrimination *** to permit religious institutions to show preference in employment to members of their own faith." (Emphasis added.) In 2007, the bill's carrier explained that a Catholic organization could "refuse an employment to a Baptist or a Muslim" on religious grounds (emphasis added); and a legislator had explained that a Baptist organization could choose "to not hire" a Catholic, Mormon, or Jewish person. Id . That understanding of "preference" expressly contemplated a refusal to hire-at least within circumstances otherwise described in statute.

Although the reformulated religious exemption added subparts to condition the exemption ( ORS 659A.006 (4)(a), (b) and (c) ), no terms expressly restricted how religious preference was to be exercised. Nothing was expressed in the statutory text or legislative records to suggest that, when filling a new position, a religious organization could exercise its preference only by hiring another applicant of the preferred faith from the present applicant pool. Instead, statutory text and legislative history indicate that a religious organization may simply choose not to hire as a means of exercising its preference. Accordingly, Warner Pacific could lawfully "prefer" not to hire a non-Christian applicant, provided that it satisfied other pertinent statutory requirements.

C. Closely Connected With the Primary Purposes

We turn to one of those statutory requirements posed in ORS 659A.006(4)(c). That is the question whether Warner Pacific demonstrated, as a matter of law, that the "employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution."

As the proponent of an affirmative defense and the moving party on summary judgment, the college has the burden of producing evidence sufficient to support the defense.

See ORCP 47 C (party has burden of coming forward if party has burden of persuasion at trial); Sunset Presbyterian Church v. Brockamp & Jaeger , 254 Or. App. 24, 30, 295 P.3d 62 (2012), aff'd , 355 Or. 286, 325 P.3d 730 (2014) (describing defendant's standard on affirmative defense at summary judgment). Assuming the college proffered such evidence, plaintiff, as the party opposing the motion, may identify within the college's evidence, or offer his own contrary evidence, that creates a material issue of fact on those issues raised in the motion. See Jensen v. Hillsboro Law Group, PC , 287 Or. App. 697, 705, 403 P.3d 455 (2017) (a party who opposes summary judgment must show a material issue of fact on those issues raised in the motion). There is no genuine issue of material fact if, "based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party." ORCP 47 C. If there is no genuine issue of material fact, then the court resolves the religious exemption as a matter of law.

On this element of the religious preference exemption, plaintiff did not indicate a factual dispute by providing his own contrary evidence or by identifying conflicting evidence within the evidence offered by the college. Instead, in his memorandum to the trial court, plaintiff included only an incidental footnote to "question" the relationship between the "employment" and the college's "primary purposes," but he told the trial court that it did not need to address the issue, because he believed that his view of the term "preference" should be dispositive. In his brief on appeal, plaintiff made only a single conclusory statement without any developed argument to explain why the trial court erred on this particular element. In his brief, plaintiff argued simply, "Warner Pacific has presented no evidence to establish that teaching psychology 'is closely connected with or related to the primary purposes' of Warner Pacific." (Emphasis added.) As a consequence, we address this element and the evidence that the college offered in support of it. We do so in order to determine whether indeed there was "no evidence" as plaintiff contends, or whether, as the college contends, the college's evidence satisfied ORS 659A.006(4)(c), as a matter of law. We address first the evidence as to the college's primary purposes and next the evidence reflecting a close connection or relationship to those purposes.

Warner Pacific's "primary purpose" is reflected in its history as a religious institution, its governing documents, faculty handbook, and employee application. Warner Pacific is a private Christian college operated as an "agency" of the Church of God in Anderson, Indiana, with a history as a Bible college. The college's articles of incorporation state that the "purposes" of the college shall be

"primarily to conduct a liberal arts college and theological seminary together with any and all courses of instruction deemed desirable to accomplish its purposes, namely: To develop and train men and women primarily for Christian service, to make available college education on a Christian campus, and to publish and circulate books, periodicals, teaching outlines and correspondence courses in the interests of Christian education."

Dr. Dawson, Dean of Faculty and Vice President for Academic Affairs, stated in his declaration that "our hope and expectation was that our faculty members would convey the college's Christian faith in the classroom." Dawson declared, "If [plaintiff] had been selected for the position, [plaintiff] would have been required to assist in conveying Warner Pacific's Christian faith to students in the classroom."

The faculty handbook indicates that the college expects the faculty to advance the college's purpose to provide a "quality liberal arts education in a vital Christian community." The handbook explains that Warner Pacific "seeks to integrate Christian Faith and academic learning." The faculty handbook says that instructors are required to "foster[ ] an environment in which freely chosen Christian faith can be deepened and spiritual relevance in everyday life clarified."

Warner Pacific expects employees to subscribe to its Employment and Lifestyle Standards. They say, "Central to Warner Pacific's identity as a Christ-centered higher education is the policy of hiring persons whose personal and professional lives reflect" Christian values. The standards require from the faculty, in part: (1) a "belief in the deity of and commitment to Jesus Christ and the Christian faith," (2) the "practice of following Christ," (3) a "vitality of Christian experience," (4) an ability to support students with "intellectual, social, physical, emotional, and spiritual challenges," (5) a "sensitivity and support for the mission, core themes, vision, values, ethos and traditions of the Warner Pacific College community," and (6) a "commitment to teaching and serving in harmony with the doctrines of the Bible." The related "Employee Agreement" requires "each employee to affirm a personal faith in Jesus Christ."

The college also provided evidence that the college sees employment as an adjunct professor of psychology to be closely connected with or related to Warner Pacific's primary purpose of cultivating a Christ-centered learning environment. That evidence consisted of declarations of college administrators, the course textbook, and a course description. Steven Stenberg, a college vice president responsible for personnel, explained;

"Even some ostensibly 'secular' classes at Warner Pacific (including classes in psychology) incorporate Christian content such as Scripture readings, Christian meditations, and other Christ-centered exercises and activities[.] *** For that reason, it was essential that the successful candidate for the teaching position for which [plaintiff] applied be Christian him- or herself."

The college supported his statement with documentary evidence.

The college identified the textbook for the psychology class as Exploring Psychology by David Myers (Worth Publishers, 9th ed. 2012), saying that Myers "subtly weaves a commitment to a Christian worldview into [a] rigorously scientific approach."

The college also offered a detailed 48-page description of the course. That syllabus includes lesson plans that show that the professor is required, at times, to read scripture verses to the students and conduct Christian meditations on various occasions throughout the semester. For example, the lecture notes for "Workshop Two" recommend a New Testament scripture reading to help foster discussion in the classroom (1 Corinthians 2:9). The lecture notes explain the scriptural theme:

"With all the miracles of the brain and the sense organs, there is still a spiritual reality that surpasses these marvelous parts of the human body. Students may be asked to share what meaning this verse or principle has for them in light of their study."

(Emphasis added.) Similarly, for "Workshop Three," the lecture notes require the professor to conduct a meditation and scripture reading from the book of Psalms 143:5. The lecture notes urge the instructor to explain to students who think that psychology and religion are at odds that "we are created as psychological beings in the image of God" and that psychological capacities "are part of one's creation." For "Workshop Four," the lecture notes require the professor to read a scripture verse 2 Corinthians 5:9 and include this instruction to the professor:

"You [the professor] may say the following, if desired, 'Tonight we are studying motivation. This New Testament writer, the Apostle Paul, clearly states his own achievement motivation: to be pleasing to God. As we consider our motivation in a psychological framework, we can think of our spiritual motivation being both the foundation and the top of Maslow's Hierarchy, surpassing that of self-actualization. In truth, it is when one has the 'achievement motivation' to be pleasing to God, which [sic] a finer sort of self-actualization emerges .' "

(Emphasis added.) Together, those lesson plans illustrate how Warner Pacific seeks to infuse a Christian perspective into an "ostensibly secular course."

The textbook and syllabus reflect the college's intent, expressed in its Board Policies Manual, that "a Christian worldview be integrated into all academic programs." With that evidence, Warner Pacific demonstrated its conviction that the employment of its adjunct professor of psychology is closely connected with or related to the college's primary purposes.

We recognize that ORS 659A.006(4)(c) requires a court to determine whether employment is "closely connected" to the "primary purposes" of a religious organization. At the same time, we appreciate that our determination is a sensitive determination when a religious school shows that it teaches an "ostensibly secular" subject from a religious perspective. That is so because our determination involves judicial self-restraint rooted in an express legislative, if not constitutional, respect for a religious perspective. See generally ORS 659A.006(4) (religious preference exemption); Or. Const., Art. I, §§ 2, 3 (religion sections); U.S. Const., Amend I (establishment and free exercise clauses). That self-restraint cautions against second-guessing the school's well-documented decision to teach a subject from a religious perspective. Self-restraint cautions against second-guessing a school's perspective when the school sees, within a course subject, a religious significance to be appreciated, discussed, and developed. Cf. Hall v. Baptist Memorial Health Care Corp. , 215 F.3d 618, 626 (6th Cir. 2000) (observing that "the First Amendment does not permit federal courts to dictate to religious institutions how to carry out their religious missions or how to enforce their religious practices"); Little v. Wuerl , 929 F.2d 944, 946-47 (3d Cir. 1991) (explaining the court's "prudential policy," in construing a statute, to avoid constitutional issues where Title VII would impinge on the free exercise and establishment clauses of the First Amendment).

The question before us in this case is not whether the employment of all instructors of all subjects could be shown to involve employment closely connected with or related to a church-related college's primary purposes. We do not decide whether Warner Pacific could require a Christian faith of all instructors, let alone all employees. Our decision extends no further than the record of this case, and this is a record where the evidence on this particular element was that from the college. Meanwhile, plaintiff only "questioned" the connection element in a footnote in a memorandum on summary judgment, but did not then identify any factual dispute on this particular element of the preference exemption. Plaintiff merely told the trial court that it need not reach the issue. That was insufficient to create a genuine dispute of material fact about the application of ORS 659A.006 (4)(c). On appeal, plaintiff has done little more.

Only a question of law remains. As quoted above, this element of the preference exemption requires a close connection to the primary purposes of a religious organization, while proscribing such a preference in employment in commercial activity with no necessary relationship to the religious organization. Here, the undisputed facts establish that Warner Pacific had integrated this faculty position, and the course to be taught, with the college's primary purpose of a faith-infused education. And, no evidence was offered or permitted a reasonable inference that the employment was "connected with a commercial or business activity that has no necessary relationship" to the college. Therefore, in the absence of developed arguments or the identification of disputed facts on this element, the college succeeded in demonstrating that this faculty position is closely connected with or related to the primary purposes of Warner Pacific so as to satisfy ORS 659A.006(4)(c), as a matter of law.

D. Other Arguments

In two final arguments on appeal, plaintiff contends that the college failed to satisfy other elements of ORS 659A.006(4)(a) and (b). Those subparts require that

"(a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the church or institution;
"(b) In the opinion of the church or institution, the preference will best serve the purposes of the church or institution[.]"

Those elements require little discussion.

First, plaintiff makes a cursory argument that Warner Pacific must prefer only members of the Church of God, Anderson, Indiana, and cannot give preference to the Christian faith generally or to other Christian denominations such as Catholic, Baptist, or Lutheran. See ORS 659A.006(4)(a) (preference for employee or applicant of the same sect or persuasion). The college, however, described its "persuasion" in a more inclusive way. Its Standards statement explained, "[f]rom its inception, the Church of God has resisted condensing the Scriptures into a formal creed." The college, "rather than requiring subscription to an institutional doctrinal statement, asks each employee to affirm a personal faith in Jesus Christ."

As it happens, we need not explore plaintiff's argument-that the college cannot prefer all Christians-because plaintiff's argument was not presented in the trial court, and plaintiff failed to present a dispute of fact regarding whether the Christian employees who were assigned to teach the course were not of the same "sect or persuasion." Without a preserved or developed argument, it now is too late to challenge the college's preference for a professor of a Christian persuasion.

Second, plaintiff claims that, under ORS 659A.006 (4)(b), "there is a question of fact as to whether it is the 'opinion of the church or institution' that 'the preference will best serve the purposes of the church or institution.' " Plaintiff points to an inference that he had urged in the trial court on a different argument about whether a religious qualification was "reasonably necessary" in terms of the BFOQ defense. As to that different issue, he had urged that a fact-finder could infer that Warner Pacific's prior president must have once made an exception to its policy to hire Christians because another professor attends a Jewish synagogue.

Ironically, both parties agree that, in this instance, religious preference was the decisive factor in refusing to hire plaintiff. A religion-based decision is the premise of plaintiff's discrimination claim. That is why plaintiff sued the college. Plaintiff does not dispute that a preference for a Christian was the reason for his rejection, and plaintiff does not claim that the college had some other motivation or used religious preference as a pretext.

Ultimately, plaintiff's argument about the college's opinion about religious preference under ORS 659A.006 (4)(b) need not be resolved on appeal, because plaintiff did not present that argument on this issue in the trial court so as to dispute whether it is truly "the opinion" of the college that "the preference will best serve the purposes" of the college.

III. CONCLUSION

The religious preference exemption provides Warner Pacific an effective defense to plaintiff's claim. Without reaching other defenses, we conclude that the trial court did not err when it granted summary judgment to Warner Pacific based on ORS 659A.006(4).

Affirmed.

James, J., concurring.

JAMES, J., concurring.

This case comes before us in the deeply troubling posture of admitted religious discrimination. After plaintiff filed suit, Warner Pacific admitted it discriminated against him on the basis of his religion, but claimed that its otherwise unlawful act was permissible under ORS 659A.006(4), which provides, in part:

"It is not an unlawful employment practice for a bona fide church or other religious institution, including but not limited to a school, hospital or church camp, to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:
"* * * * *
"(c) The employment involved is closely connected with or related to the primary purposes of the church or institution[.]"

Although this case was decided on summary judgment at the circuit court, before this court, plaintiff's focus has detached from the question of the sufficiency of the record to support a grant of summary judgment. Instead, plaintiff has presented a question of statutory interpretation as to whether ORS 659A.006(4) permits an institution to "prefer" to hire no one or, as plaintiff has argued, only permits a preference between two or more applicants under consideration. As to the resolution of that question of statutory interpretation, I agree with the majority. The history of ORS 659A.006(4) establishes that the term "prefer," as it appears in the statute, includes preferring no one.

I write separately, however, because I do not join in the majority's discussion concerning the other element required to assert a defense under ORS 659A.006 (4)(c) : namely, whether a position is "closely connected." For Warner Pacific's admitted discrimination to not be unlawful, and therefore actionable, Warner Pacific had the burden to establish that the position of professor of psychology was "closely connected with or related to the primary purposes" of the school under ORS 659A.006(4)(c). That question-whether a psychology professorship is, in fact, "closely connected" with the religious purposes of the school such that the statute permits admitted discrimination-is precisely the type of question that should be resolved in the crucible of trial, wherein the community may express itself through the voice of the jury.

The civil jury trial is "a right resulting from a social compact which regulates the action of the community, [and] is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." 1 ANNALS OF CONG. 454 (1789) (Joseph Gales ed., 1834); see also THE FEDERALIST No. 83, at 558-74 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (describing the jury trial as the "very palladium of free government"). Summary judgment sits in potential opposition to the fundamental right to a jury trial.

As we have said, summary judgment is a "drastic" measure. Myhran v. General Telephone Company , 52 Or. App. 209, 213 n. 3, 628 P.2d 402 (1981). In so noting, we are in keeping with countless other courts that have also held that summary judgment is an extreme act and should be utilized with the utmost of caution. See, e.g. , Schweihs v. Chase Home Finance, LLC , 412 Ill.Dec. 882, 77 N.E.3d 50, 62 (2016) ("Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt."); Knapp v. Fraternal Order of Eagles , 106 N.M. 11, 12, 738 P.2d 129, 130 (N.M. Ct. App. 1987) ("Summary judgment is a drastic measure not generally favored and is to be used only with extreme caution."); Chadd v. Midwest Franchise Corp ., 226 Neb. 502, 505, 412 N.W.2d 453, 456 (1987) ("Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt."); Murrell v. Bennett , 615 F.2d 306, 309 (5th Cir. 1980) (summary judgment "must be used cautiously or it may lead to drastic and lethal results"); Williams v. Carolina Power & Light Co ., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979) ("[S]ummary judgment is a drastic measure, and it should be used with caution.").

What makes summary judgment potentially perilous is that it "deprive[s] a party of an opportunity to present certain issues to the jury."

Myhran , 52 Or. App. at 213 n. 3, 628 P.2d 402. For, it is the jury -not the judge-that serves as the conscience of the community. And, it is only the jury that can truly render "[t]he community's judgment [as to] whether the defendant's conduct met that threshold in the factual circumstances of any particular case." Chapman v. Mayfield , 358 Or. 196, 206, 361 P.3d 566 (2015) ; see also Piazza v. Kellim , 360 Or. 58, 74, 377 P.3d 492 (2016) (holding same).

In this case, summary judgment would only have been appropriate if, viewing all the facts and inferences in the light most favorable to plaintiff, no reasonable jury could have concluded that a psychology professorship was not "closely connected" with the religious purposes of Warner Pacific. I find it highly unlikely, and perhaps virtually impossible, that a genuine issue of material fact did not exist on that element. One might argue that, given Warner Pacific's admission of discrimination, the very nature of the ORS 659A.006(4) defense itself may have foreclosed summary judgment. But that issue was not developed on appeal.

Appellant has provided only a single conclusory sentence in his brief before this court, stating, "Warner Pacific has presented no evidence to establish that teaching psychology 'is closely connected with or related to the primary purposes' of Warner Pacific." That single sentence, which itself fails to articulate the correct standard of review for a grant of summary judgment, cannot serve as the basis for reversal. "Because we do not make or develop a party's argument when that party has not endeavored to do so itself, * * * we constrain our review in this case to the arguments that defendant actually made." Harnisch v. College of Legal Arts, Inc. , 243 Or. App. 16, 25, 259 P.3d 67 (2011) (footnote omitted).

The question of whether there was a genuine issue of material fact that a professorship of psychology was "closely connected with or related to the primary purposes" of Warner Pacific, under ORS 659A.006(4)(c), was not developed on appeal. Thus, I do not consider that question as properly before us. In discussing that issue without the help of the parties, the majority confuses undisputed evidence with undisputed facts , and it usurps the jury's role in assessing the evidence proffered by Warner Pacific. It is the jury's role, not ours, to decide whether to credit explanations proffered by Warner Pacific and to draw inferences from the documents and other materials submitted by the college. By weighing in on this undeveloped issue, the majority risks implying that this court believes the record in this case justified summary judgment on the "closely connected" issue and, more troubling, the majority may subtly signal that similar evidence would warrant summary judgment in future cases.

Accordingly, I do not join in the majority's discussion of that issue, nor its summary of the facts underlying it, see 296 Or. App. at 161-62, 172-80, and view such as dicta .

I, nevertheless, concur in the judgment.

      A public employer must grant a preference to a veteran or disabled veteran who applies for employment by granting five or 10 preference points, respectively, to a score in screening or examinations. ORS 408.230(1), (2). The statute expressly provides that a public employer "shall appoint an otherwise qualified veteran or disabled veteran" if the results with the preference equal or exceed those of other applicants. ORS 408.230(4).

      Under the veteran's preference statute:
      "A public employer shall appoint an otherwise qualified veteran or disabled veteran to a vacant civil service position if the results of a veteran's or disabled veteran's application examination , when combined with the veteran's or disabled veteran's preference, are equal to or higher than the results of an application examination for an applicant who is not a veteran or disabled veteran."
      ORS 408.230(4) (emphases added).

      At that time, former ORS 659.010(4) (1953) provided:
      " 'Employer' does not include a club exclusively social, or a fraternal, charitable, educational or religious association or corporation, if such a club, association or corporation is not organized for private profit, nor does it include any employer with less than six persons in his employ."

      Showing the new language in italics, the original bill proposed:
      "(2) The opportunity to obtain employment without discrimination because of race, religion, color or national origin hereby is recognized as and declared to be a civil right. However, this section shall not be construed to prevent a bona fide church or sectarian religious institution, including but not limited to a school, hospital or church camp, from preferring an employe [e ] or applicant for employment of one religious sect or persuasion over another when, in its opinion, such a preference will best serve the purposes of such institution. "
      HB 1297, § 2 (amending former ORS 659.020(2) (1967) ).

      In 1969, HB 1297 began as a renewed effort to pass what had been an unsuccessful effort to pass HB 1508 in 1967. Tape Recording, House Committee on Labor and Management, HB 1297, Mar. 12, 1969 (statement of Representative Robert Davis). In 1967, HB 1508 had passed both houses of the legislature but was in conference committee at adjournment. Id. ; 1967 Senate and House Journal 807-08 (HB 1508).

      In context, we understand "not-hire" to mean that a religious organization could choose not to hire an applicant of a different faith.
      In 1967, Representative McCready made a similar statement about HB 1508, the precursor to HB 1297 (1969). As a sponsor, she explained:
      "House Bill 1508 is unique in that it specifically authorizes discrimination. It would amend ORS 659.020 to permit religious institutions to show preference in employment to members of their own faith."
      Exhibit, House Committee on Labor and Management, HB 1508, Mar. 27, 1967, 1 (written statement of Rep. Connie McCready).

      Coincidentally, HB 1297 later came to include the addition of a ban on sex discrimination. At the urging of then Senator Betty Roberts, the House committee amended the bill to proscribe sex discrimination. Minutes, Senate Committee on Labor and Industries, Apr. 23, 1969, 1 (statement of Senator Roberts about the origin of the amendments); Minutes, House Committee on Labor and Management, Mar. 24, 1969, 5. That amendment, adding "sex" to the protected classes, prompted a corresponding BFOQ amendment. See Or. Laws 1969, ch. 618, § 3 (former ORS 659.030(1) ). In our review of the legislative history, we found no testimony or commentary to suggest that the words employed or the concerns about the BFOQ amendment were related to the words or concerns about the religious preference exemption. They were separate issues, and, because the BFOQ language came later, the meaning of their terms developed independently.

      Article I of the Oregon Constitution provides, in relevant part:
      "Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.
      "Section 3. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience."
      In relevant part, the First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ***."

      It is "not this court's function to speculate as to what a party's argument might be. Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself." Beall Transport Equip. Co. v. Southern Pacific Transp ., 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons , 187 Or. App. 472, 68 P.3d 259 (2003).

      On the BFOQ issue, plaintiff had offered evidence that a professor of Biblical studies was, at that time in 2014-15, an active member of a local synagogue. The college responded with evidence that the same professor was a masters and doctoral graduate of two Christian seminaries, was an ordained clergy member of the Church of God, and had completed his employment application in 1997 with the college attesting to a Christian faith, which he reaffirmed in 2015. Whether or not, taken together, those facts presented a genuine issue of material fact, they were raised with regard to a different issue-the "reasonably necessary" issue in the BFOQ defense.

      We note that some courts have held that a religious organization may make an exception without losing its religious exemption for other employment decisions. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n , 503 F.3d 217, 230 (3d Cir. 2007), cert. den. , 553 U.S. 1004, 128 S.Ct. 2053, 170 L.Ed.2d 793 (2008) (a religious organization "need not enforce an across-the-board policy of hiring only coreligionists" in order to claim Title VII's religious exemption); Killinger v. Samford University, 113 F.3d 196, 199-200 (11th Cir. 1997) (no need for institution to engage in a "strict policy of religious discrimination" to be entitled to the exemption). That, however, is an issue that we do not decide in this case.


source: Caselaw Access Project

author: ORTEGA, P. J.

license: Public Domain

text:
    In the MATTER OF K. R. M., a Child.
    Department of Human Services, Petitioner-Respondent Cross-Appellant, and K. R. M., Respondent Cross-Appellant, v. D. W. M., Appellant Cross-Respondent.
    A166682
    Court of Appeals of Oregon.
    Argued and submitted May 31, 2018. February 13, 2019
    Tiffany Keast, Deputy Public Defender, argued the cause for appellant-cross-respondent. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent-cross-appellant Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Ginger Fitch filed the brief for respondent-cross-appellant child.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

This is a juvenile dependency case in which father appeals a judgment finding child, his 14-year-old daughter, to be within the jurisdiction of the juvenile court based on findings that father perpetuated domestic violence against mother and that father's substance abuse interfered with his ability to safely parent. Father argues that the juvenile court erred in denying his motion to dismiss and in asserting jurisdiction over child under ORS 419B.100(1)(c) because the Department of Human Services (DHS) failed to prove that either his perpetuation of domestic violence or his use of alcohol created a threat of serious loss or injury to child.

DHS and child cross-appeal, challenging the juvenile court's dismissal of DHS's allegation that father's sexual abuse of child endangers her welfare. DHS argues that, in light of the juvenile court's explicit finding that father sexually abused child, the juvenile court's dismissal was in error and inconsistent with the undisputed evidence.

In a dependency case, we have discretion to "try the cause anew upon the record or make one or more factual findings anew upon the record." ORS 19.415(3)(b). However, we exercise that discretion only in exceptional cases. ORAP 5.40(8)(c). Here, although none of the parties request de novo review, we view this as an exceptional case for several reasons. First, we conclude that the juvenile court's decision that father does not pose a current risk of sexual abuse to child does not comport with its express factual findings that father sexually abused child and her older sister in the past, or with the uncontroverted evidence in the record that father continued to treat child in a sexualized manner after he stopped sexually abusing her. ORAP 5.40(8)(d)(ii) (a relevant consideration for the appellate court in determining whether to take de novo review is whether the "trial court's decision comports with its express factual findings or with uncontroverted evidence in the record"). Second, the juvenile court made express factual findings, and those express findings allow us to infer the juvenile court's implicit findings as to witness credibility. ORAP 5.40(8)(d)(i) (the appellate court is to consider whether "the trial court made express factual findings, including demeanor-based credibility findings" in deciding whether to take de novo review). Finally, when a juvenile court declines jurisdiction after finding that a parent sexually abused a child, and the court's factual findings related to that determination are ambiguous, de novo review may be justified-and we conclude that it is here-to ensure an expedited resolution to protect the child. See generally ORAP 5.40(8)(d) (stating that the considerations in the rule for reviewing de novo are not binding or exclusive); see also Dept. of Human Services v. T. L. H. S. , 292 Or. App. 708, 715, 425 P.3d 775 (2018) (explaining that the "sole purpose" of juvenile dependency proceedings "is to protect children," and that "[t]he focus is always on the child").

On de novo review, we independently assess and evaluate the evidence and reweigh the facts and reassess the persuasive force of the evidence. Turner and Muller , 237 Or. App. 192, 194, 238 P.3d 1003 (2010), rev. den. , 350 Or. 231, 253 P.3d 1080 (2011). However, "we give considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony." Fitts v. Case , 243 Or. App. 543, 552 n. 3, 267 P.3d 160 (2011).

As we explain below, we agree with father that DHS failed to establish a sufficient nexus between father's abuse of alcohol and domestic violence and a nonspeculative risk of serious loss or injury to child and, therefore, we reverse the judgment taking jurisdiction based on those allegations. On the cross-appeal, we agree with DHS and child that the evidence was sufficient to find that father posed a current risk of serious loss or injury to child based on his prior sexual abuse of child and, accordingly, we reverse the juvenile court's ruling rejecting that as a basis for jurisdiction.

Mother and father have been in an intimate relationship for 28 years but they are not married. They have two biological daughters, child, who is 14 years old and a freshman in high school, and child's sister, who is 24 years old and no longer lives in the family home. The parents have separated on and off over the years, but their longest period of separation was the two and a half months preceding the jurisdictional hearing.

On July 31, 2017, while child was present in the house, mother and father got into a verbal altercation. At some point during the altercation, father disclosed to mother (and child overheard) that he had touched child's sister inappropriately. Mother later asked child's sister whether father had touched her, but child's sister would not talk to mother about it. Mother also asked child if father had ever touched her, but child denied that he had. Eventually, child admitted to mother's friend, and later to mother, that father had sexually abused her. After child's disclosure, child's sister finally confirmed to mother that father had sexually abused her as well. Father was arrested on September 1, 2017, based on allegations of sexual abuse against child and child's sister.

About three weeks later, DHS petitioned the juvenile court to take dependency jurisdiction over child. The petition alleged that (1) father "sexually abused" child, (2) father "perpetrates domestic violence against * * * mother, in the presence of * * * child," and (3) that father's "substance abuse interferes with his ability to safely parent." Mother ultimately admitted to allegations that she "exposed * * * child to domestic violence perpetrated by * * * father" and that her "substance abuse, if left untreated, interferes with her ability to safely parent."

The juvenile court took evidence over two days and heard from a number of witnesses, including child. Child testified that she has been aware of father's drinking her whole life, and that her parents drink half a bottle of whiskey every night. She described seeing her parents drunk every night, and observing them stumbling and slurring their words. However, she stated that "by the time they were drunk, it was mainly about an hour before I would go to bed, so I didn't really have to deal with it." In child's estimation, her parents' drinking had "kind of slowed * * * down" within the past year, but it would also "speed up sometimes." Child testified that father, and sometimes mother, used marijuana, but never around her. Child also stated that father was drinking up until his arrest, but that mother had stopped drinking.

Child also described the parents' fighting. She testified that they would argue "a lot," and that they would also get into fights that involved "pushing and shoving." Child's testimony about how frequently the physical fights occurred was inconsistent, but indicated that the pushing and shoving occurred either once a month or once every other month. Later, child referred to altercations that were sometimes physical between her parents that would occur at night in their bedroom once or twice a week. She described one incident from several years earlier when she heard mother screaming and found that father had mother in a chokehold. He rebuffed child's efforts to get him to let mother go, expressing that mother "need[ed] to learn a lesson." He then grabbed mother's phone and threw it into a wall. Child described another fight to a local agency, Kids First (an investigative agency), in which she witnessed father punching a hole into a wall.

Child also described fights between father and child and between father and child's sister. She testified that "[h]e used to spank me * * * and he always threatened to slap me if I * * * did something wrong * * *." Child described another incident to Kid's First in which father "grabbed [her] hand and held it really, really, really tight." She testified about a recent incident in which father slammed her dog's body and head into the dryer "about seven times." She said that she "grabbed his shirt and ripped it, and screamed, 'Stop!' " Father chased her upstairs, but she escaped and locked herself in her room and did not come out for the rest of the night. She did not know whether father intended to hit her or whether he had been drinking, but she was scared of him that night. She also described an altercation between father and child's sister when child's sister was in high school in which father "ripped" child's sister's door "apart" while child's sister was inside her room "screaming and crying."

Child testified that she was afraid of father and has "always been scared of him." She was also afraid for her and mother's safety. She would try to convince mother to leave father "a lot," but mother never did.

In addition to the domestic violence and substance abuse, child also testified that father sexually abused her when she was seven or eight years old. Father would touch her vagina, which occurred "maybe four" times. Child did not remember exactly when the touching stopped, but she knew it stopped by the time she was in the third or fourth grade, which was around the first time that she had disclosed the abuse to a friend.

Child also described incidents when father would look at her in a sexual way:

"Sometimes it was just looking rather than touching, like, looking while I'd get dressed or looking while I was taking a shower. He would go in and say, 'Boo,' but he just came in to, like, watch, and he would ask me about the soap and stuff."

Child then went on to describe another incident that occurred in either 2015 or 2016 when she walked out of the bathroom in a towel and into her bedroom to get dressed. When she came back out in her clothes, her father asked to see her in the towel again. She also recalled that, once the touching stopped, "it turned more into talking" and "[w]here he would look at me, and I could see it, you know, when like a guy's checking you out, you can tell."

Child testified that she had never reported the abuse because she "thought it was normal." Child finally disclosed the abuse to mother sometime in the month before father's arrest after she overheard the July 31 fight between her parents in which father admitted touching child's sister inappropriately. When asked how father's touching her had affected her, child responded that she had started cutting herself, which lasted for three years. She admitted that there were other reasons that she would cut herself, but she did not elaborate on what those reasons were. Child also testified that she has had dreams that her father raped her, raped her mother, and raped her friend. She recently started counseling for depression, but said that she did not know whether she was in counseling to talk about the sex abuse.

Child's sister also testified at the hearing. Child's sister moved out of the house when she was 18, but she moved back in with her boyfriend and daughter from October 2016 until January 2017. During that period, she witnessed her parents fighting "three times a week, maybe." She described the fights as "yelling" and "simple marriage bickering that was just loud and vocal." Child's sister did, however, witness a serious altercation where her boyfriend had to step in and stop her father from punching her mother. She indicated that her boyfriend and father were intoxicated at the time.

Child's sister testified that father had also sexually abused her. The sexual abuse had started when she was a freshman in high school, and stopped when she was 17 and a senior. Father would come into her bedroom in the mornings and he would "play with [her] with his finger down below." He finally stopped touching her because she told him "no" and that she wanted it to stop. Child's sister also made father promise that he would never do the same thing to child, but she did not recall ever asking child whether father had touched her. She indicated that she finally disclosed the abuse to mother when she learned that child had disclosed father's abuse and that mother did not believe her.

Mother testified that father has a drinking problem, and also acknowledged that physical fights occurred between her and father when they were both drinking, though she minimized how much child was exposed to physical fights. Mother's acknowledgement of father's sexual abuse was more equivocal, but she did testify that father told her that he had touched child's sister's breast.

DHS caseworker Denney testified about the effects of father's actions on child. Denney opined that, based on meeting child, supervising one visit with mother, reviewing the notes of six or seven other supervised visits, and observing mother's and child's body language, child is very concerned that mother is angry with her. Denney also expressed concern that child "has some anxiety issues around the situation that has come about" and "may be suffering from depression" given that she is "not doing well in school," and is "having a hard time staying committed to things that she's saying that she wants to do." Denney identified a further concern that child might still be cutting herself.

After the presentation of evidence, the juvenile court took jurisdiction as to father based on its finding that DHS had met its burden to prove by a preponderance of the evidence that father perpetuates domestic violence against mother and that his substance abuse interferes with his ability to safely parent. The juvenile court dismissed the remaining jurisdictional allegations against father, including the allegation that father sexually abused child.

With regard to the domestic violence and substance abuse allegations, the juvenile court made few express findings other than to note that the evidence was sufficient to prove the allegations and that there was a present risk of harm. In dismissing the sexual abuse allegation, the court made these findings:

"[T]here's not really any dispute about the daughters acknowledging and admitting that there was sexual abuse at some time in the past.
"The problem is, * * * I don't have any evidence or testimony that there's a present-day risk * * * of that conduct occurring in a * * * non-speculative way if the Court didn't intervene today."

The juvenile court later continued,

"I do think that abuse that's admittedly occurred at age seven, possibly eight, that hasn't repeated itself, and the [c]hild's now fourteen, a freshman in high school, I think that you still have to prove there's some current-day risk. And I don't think that [DHS has] met that burden by a preponderance of the evidence."

Under ORS 419B.100(1)(c), jurisdiction is warranted if a child's "condition or circumstances are such as to endanger [her] welfare"-that is, if they "give rise to a threat of serious loss or injury." Dept. of Human Services v. A. F. , 243 Or. App. 379, 386, 259 P.3d 957 (2011). "DHS has the burden to establish a nexus between the allegedly risk-causing conduct or circumstances and risk of harm to the child," Dept. of Human Services v. E. M. , 264 Or. App. 76, 81, 331 P.3d 1054 (2014) (citing Dept. of Human Services v. M. Q. , 253 Or. App. 776, 785, 292 P.3d 616 (2012) ), and must do so by a preponderance of the evidence, Dept. of Human Services v. S. C. S. , 253 Or. App. 319, 325, 290 P.3d 903 (2012), rev. den. , 353 Or. 428, 299 P.3d 889 (2013). The risk of harm must be "present at the time of the hearing and not merely speculative," E. M. , 264 Or. App. at 81, 331 P.3d 1054, and DHS must present evidence of the "type, degree, and duration of the harm" to the child, Dept. of Human Services v. S. D. I. , 259 Or. App. 116, 121, 312 P.3d 608 (2013).

Because we conclude that sexual abuse is the only basis for jurisdiction as to father that is supported on this record, we begin with the cross-appeal. DHS and child contend that the evidence was sufficient to establish that father posed a current risk of harm to child for a number of reasons. First, they argue, the juvenile court expressly found that father had sexually abused child and child's sister. Second, even though father had not sexually abused child in several years, child was the same age as child's sister was when father began sexually abusing child's sister. Third, there was evidence that father continued to treat child in a sexualized manner, including asking to see her naked and making inappropriate sexual comments. Fourth, father had not completed any sex offender treatment. Lastly, as a result of father's sexual abuse in the past, child began cutting herself and continues to suffer from anxiety and depression.

Father responds that a finding that he sexually abused child and child's sister years before the jurisdictional hearing did not establish a risk that he would sexually abuse child in the future. Father further contends that the juvenile court did not have to credit evidence that he continued to treat child in a sexualized manner or that doing so exposed her to serious loss or injury. He also contends that the court could have concluded that child's anxiety and depression, if any, was not related to sexual abuse by father. As discussed below, we agree with DHS and child that child faces a present risk of harm from sexual abuse by father.

First, we find that DHS proved by a preponderance of the evidence that father sexually abused child and child's sister. Child and child's sister testified to details of the sexual abuse, and that evidence was uncontroverted. The juvenile court implicitly found both child and child's sister to be credible, and we defer to that credibility finding. See Fitts , 243 Or. App. at 552 n. 3, 267 P.3d 160 (on de novo review, we give great weight to trial court's findings on the credibility of witnesses). Additionally, father admitted to mother that he touched child's sister inappropriately.

Unlike the juvenile court, however, we conclude that DHS established a current threat of harm by a preponderance of the evidence. A person's status as a sex offender does not alone justify state intervention, nor does the fact that a sex offender is untreated create a presumption of risk to the child. See Dept. of Human Services v. G. J. R. , 254 Or. App. 436, 445, 295 P.3d 672 (2013) (concluding that there was insufficient evidence of risk to the child where the father had not reoffended in 10 years and where the child was not in the class of the father's victims). In this case, however, there is evidence that father sexually abused child herself four times and there is no evidence that he engaged in treatment or acknowledged the harm to child. Moreover, even after the abuse stopped, father continued to say sexually inappropriate things to child and to regard her in a sexual way. Additionally, there is evidence that father sexually abused child's sister when she was the same age as child is now, supporting a concern that child continues to be in the class of father's victims. For all of those reasons, we conclude that father's past sexual abuse of child poses a current risk of harm to child, and reverse the judgment dismissing that allegation.

We turn to father's appeal. Father argues that, even if he was engaging in alcohol abuse and domestic violence, DHS failed to prove a nexus between that conduct and a nonspeculative risk of serious loss or injury to child. He points to a lack of evidence that child was injured during any incidents of pushing and shoving between the parents or that perceiving those incidents put child at risk of any serious loss or injury, and further emphasizes that child did not attribute her cutting behavior to father's drinking or domestic violence and that there was no other evidence linking those things. Finally, father argues that the evidence was insufficient to establish that child was suffering from anxiety or depression at all.

DHS responds that father's drinking and domestic violence are intertwined and that father's substance abuse created a risk of harm to child because it contributed to the domestic violence. DHS emphasizes some of the worst incidents in which child tried to intervene and notes that child is scared of father and suffers from anxiety and depression and that father has not engaged in domestic violence services.

Like the juvenile court, we find that father perpetuated domestic violence against mother; indeed, the parents at trial disputed only the severity and frequency of the violence between them, which is not determinative in this case. We also find that child was exposed to domestic violence, based on child's testimony that she frequently hears and sees physical fights between her parents and her description of incidents when she observed father's aggressive behavior. Further, like the juvenile court, we find ample support in the record that father abuses alcohol. However, the evidence in the record does not persuade us that either of those problems presents a current risk of serious loss or injury to child, nor does it establish a nexus between those problems and any perceived harm, sufficient to support juvenile court jurisdiction.

As we have previously explained, "[e]vidence that a child has been exposed to a parent exhibiting the adverse effects of intoxication is not, in and of itself, a basis for juvenile court jurisdiction."

Dept. of Human Services v. D. S. F ., 246 Or. App. 302, 314, 266 P.3d 116 (2011). Likewise, a child's exposure to domestic violence does not necessarily create a risk of serious loss or injury to a child sufficient to warrant juvenile court intervention. See Dept. of Human Services v. K. C. F. , 282 Or. App. 12, 20, 383 P.3d 931 (2016) (reversing the juvenile court's assumption of jurisdiction where DHS presented evidence that the children were exposed to and affected by the father's emotional abuse of the mother, but the record lacked evidence of a present risk of serious harm to them). "[T]he state must establish both that the child is at risk of a certain severity of harm and that there is a reasonable likelihood that" the risk will occur. S. D. I ., 259 Or. App. at 121, 312 P.3d 608.

Here, DHS presented no evidence that father's drinking alone created a risk of harm to child. Rather, DHS argues that father's drinking contributed to the domestic violence and that the domestic violence created a nonspeculative risk of harm to child. However, even assuming, without deciding, that a connection between drinking and domestic violence has been established, the evidence does not persuade us that there is a serious risk of harm sufficient to support juvenile court intervention.

We have found a risk of physical harm to a child as a result of proximity to domestic violence where the record contains evidence specific to that child to support such a finding. See , e.g. , Dept. of Human Services v. C. M., 284 Or. App. 521, 523, 525-30, 392 P.3d 820 (2017) (where the evidence included testimony about the four-year-old child's physical proximity to violence on a particular occasion that could have, but did not, result in injury to the child, and caseworker testimony establishing how such injuries can occur). Here, however, the evidence was insufficient to support such a finding. Child testified that her parents "pushed and shoved" each other once a month or once every other month, but the record does not establish child's proximity to the pushing and shoving or establish how she was put at physical risk, if she was. Indeed, child testified about many occasions when she was in her bedroom and overheard the fights but was physically out of harm's way. There is evidence that child observed father choking mother when child was nine years old, and that she observed father punch a hole in the wall, but there was no further evidence of how child was at physical risk during those incidents.

Moreover, there is no evidence that father injured or assaulted child during her parents' fights. Child testified that father would spank her or threaten to slap her, and that he grabbed her hand tight one time, but such conduct, although far from ideal, does not establish a risk of injury to child sufficient to support jurisdiction. Likewise, aggressive behavior such as slamming child's dog's head into the dryer and "ripping" child's sister's door apart is alarming, but does not establish a serious risk of physical harm to child. Although it may be that a record of such a risk could be made in a case such as this one, without evidence of an actual assault of the child, by means of other evidence establishing how the child was put at physical risk, such a record was not made in this case.

DHS also asserts that child is at risk of psychological harm because child suffers from depression and anxiety and was harming herself. However, DHS presented scant evidence of the "type, degree, and duration" of the emotional harm. See K. C. F. , 282 Or. App. at 20, 383 P.3d 931 (finding that, although DHS presented evidence that father was emotionally abusive and that the conflict between the parents affected the children, DHS failed to present sufficient evidence about the "type, degree, and duration of harm necessary to establish a threat of serious loss or injury"). The only evidence in the record that child suffers from depression and anxiety derives from the DHS caseworker who testified that she was "concerned that [child] has some anxiety issues around the situation that has come about, as well as she may be suffering from depression." Child did not (and indeed could not be expected to) make that connection, and Denney's "concern" about signs of anxiety and depression based on her own limited observations of child was insufficient to fill the gap. Cf. S. D. I. , 259 Or. App. at 119, 123, 312 P.3d 608 (concluding that a DHS caseworker's testimony that child would " 'likely' " suffer from psychological damage if transferred to the care of her mother was not sufficient evidence to establish the severity of the harm to support jurisdiction). Although we take seriously child's expressed fear of father, that fear alone likewise is not sufficient to support dependency jurisdiction. See, e.g. , State ex rel Dept. of Human Services v. D. T. C. , 231 Or. App. 544, 554, 219 P.3d 610 (2009) (although the father's behavior while he was drinking frightened the children and was "not ideal parenting," the record was insufficient to support dependency jurisdiction).

Even assuming the evidence was sufficient to establish a risk of serious harm to child, DHS failed to establish, on this record, a nexus between the depression, anxiety or cutting and father's domestic violence and drinking. Denney testified that she believed child was suffering from depression, but she did provide any information about the cause of that depression. Additionally, Denney testified that child "has some anxiety issues around the situation that has come about," which is general and ambiguous and not sufficient evidence that the anxiety was caused by father's drinking or the domestic violence in the home. Although that might be the case, the "situation" that was causing child anxiety also could have been the intervention of DHS in child's home life, the juvenile dependency proceedings, or that father was incarcerated and facing serious criminal charges as a result of the sexual abuse allegations. Denney also testified that child had self-harmed at some point in the past, but she did not testify that she had any information about why child was self-harming. Child testified that the sexual abuse caused her to self-harm. Child did state that there were reasons other than the sex abuse that lead her to self-harm, but child did not specify what those reasons were. DHS presented no evidence that father's perpetuation of domestic violence and substance abuse issues were correlated to child's self-harming behavior or any depression and anxiety child may have been suffering.

We do not mean to suggest that a record of a serious risk of harm to a child from prolonged exposure to abuse of alcohol and domestic violence could not be made under these circumstances. See Dept. of Human Services v. J. H. , 292 Or. App. 733, 741-42, 425 P.3d 791 (2018) (recognizing that, even in the absence of physical violence, exposure to frequent and severe verbal altercations between parents or other adults in a child's home may cause or risk serious emotional or psychological harm to the child). However, we have repeatedly recognized that bad parenting alone does not justify state intervention. See Dept. of Human Services v. R. L. F. , 260 Or. App. 166, 172, 316 P.3d 424 (2013) (quoting A. F. , 243 Or. App. at 387, 259 P.3d 957 ) (noting that "[w]hen evaluating whether a parent's alleged behavior may cause harm to the child sufficient to support dependency jurisdiction, we must consider that '[t]he fact that a parent engages in behavior that could negatively affect his or her parenting does not necessarily mean that the behavior can serve as a basis for juvenile court jurisdiction over a child.' "). On de novo review, the evidence does not persuade us that there is a nonspeculative and serious risk of harm to child from exposure to father's domestic violence and abuse of alcohol. Accordingly, the juvenile court's exercise of jurisdiction on those bases was in error.

The judgment of the juvenile court dismissing the sexual abuse allegation as to father is reversed and remanded, and the judgment finding jurisdiction based on father's substance abuse and domestic violence is also reversed.

On appeal, reversed; on cross-appeal, reversed and remanded.

      Child adopts DHS's answering brief and DHS's opening brief on cross-appeal. Therefore, when referring to DHS's arguments made on appeal, we are necessarily including child's arguments on appeal.

      The petition also alleged that "father's mental health condition interferes with his ability to safely parent" and that "father's criminal behaviors and attendant consequences interfere with his ability to safely parent." The juvenile court dismissed those claims, and DHS and child do not appeal that ruling.

      Mother is not a party to this appeal.

      She distinguished those incidents from the times he would go into the bathroom when she was in the shower, which she said "he didn't do * * * anymore."

      The juvenile court's determinations as to mother are not before us.

      Father asserts that DHS failed to preserve its arguments that evidence that he treated child in a sexualized way and that child suffered psychological harm from his conduct established a current risk of harm. We reject those arguments as to preservation without further written discussion.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Natasha Jean WHEELER, Defendant-Appellant.
    A164786
    Court of Appeals of Oregon.
    Submitted August 3, 2018. February 27, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for possession of methamphetamine. Defendant argues that the trial court erred in denying her motion to suppress evidence obtained in a jailhouse inventory because the policy permitting the inventory is unconstitutionally broad. The state concedes the error. We agree that the trial court erred. Thus, we accept the state's concession, and reverse and remand.

Defendant was arrested on an outstanding warrant and transported to the Coos County Jail. At the jail, a corrections officer conducted a search of defendant's purse pursuant to the jail's inventory policy and found methamphetamine. Defendant filed a motion to suppress the evidence discovered in the inventory, arguing that the Coos County Jail's policy was unconstitutionally overbroad with respect to opening containers because it required a search of all closed containers. The trial court denied defendant's motion, concluding that the policy was constitutional because it gave the deputy no discretion regarding the search of a purse. On appeal, the state concedes that the trial court erred.

An administrative inventory of a person's property is a valid exception to the warrant requirement for searches under Article I, section 9, of the Oregon Constitution, if the inventory meets several conditions. State v. Hite , 266 Or. App. 710, 719, 338 P.3d 803 (2014). One of those conditions is that "[t]he scope of the inventory must be reasonable in relation to its purpose." Id. at 719-20, 338 P.3d 803 (internal quotation marks omitted). "In serving the purposes of the inventory, the authorizing policy must not permit police to indiscriminately rummage through closed containers." Id. (internal quotation marks omitted). Although there is an exception to that general rule for "containers that are designed to or likely to contain items,"

id. , an inventory policy is unconstitutionally overbroad if it "requires officers to open and inventory closed containers that are not designed to contain or objectively likely to contain valuables or even dangerous items." Id. at 724, 338 P.3d 803.

Here, the inventory policy requires officers to search all closed containers "for weapons, explosives, or any other unacceptable items." Because that policy requires officers to open all closed containers, it is impermissibly overbroad and, thus, the inventory search of defendant's purse conducted pursuant to that policy violated Article I, section 9. Accordingly, we agree with and accept the state's concession that the trial court erred in denying defendant's suppression motion.

Reversed and remanded.

      The Coos County Jail inventory policy provides, in part:
      "C. Containers-All containers must be searched by a Corrections Deputy even if they are locked to screen for weapons, explosives, or any other unacceptable items before being stored. Closed containers may also be searched for proof of identification, cash and other valuable items the inmate may be in possession of. The insides of matchbooks, cigarette lighters, cigarette packages, chapstick, makeup compacts, wallets, purses, non-prescription drug containers and other closed containers shall be thoroughly examined."