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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF WASCO

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BRIAN STOVALL, JOHN OLMSTEAD,
CONNIE KRUMMRICH and KAREN
BROWN,
Plaintiffs,
v.
NORTHERN OREGON
CORRECTIONS dba NORCOR, an
intergovernmental corrections entity,
and WASCO COUNTY,

Case No. 17CV31082
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
ORDERS RE: SUMMARY
JUDGMENT

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Defendants.
THIS MATTER came before the Court on January 10, 2019, for a hearing on
Plaintiffs' Motion for Summary Judgment and Defendant NORCOR' s Motion for
Summary Judgment.

Plaintiff Brown appeared through her attorneys Stephen S.

Walters and David Henretty. Plaintiffs Stovall, Olmstead and Krummrich appeared
through their attorneys Erin M. Pettigrew and Stephen W. Manning.

Defendant

NORCOR appeared through its attorneys Derek J. Aston, Kimberlee Petrie Volm, and
Drew L. Eyman. Defendant Wasco County was previously dismissed from the case and
did not appear. The Court has considered the motions, memorandums, declarations,
exhibits, and argument of counsel.

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25
Page 1- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 I

FINDINGS OF FACT

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The Court finds as follows:

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Plaintiff Brown owns real property in Wasco County, Oregon, and has

paid and continues to pay property taxes to Wasco County.
2.

Plaintiff Stovall owns real property in Wasco County, Oregon, and has

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7

paid and continues to pay property taxes to Wasco County.

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paid and continues to pay property taxes to Wasco County.

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3.

4.

Plaintiff Olmstead owns real property in Wasco County, Oregon, and has

Plaintiff Krummrich owns real property in Wasco County, Oregon, and

has paid and continues to pay property taxes to Wasco County.
5.

NORCOR is a regional jail located in The Dalles, Oregon, and was

organized pursuant to ORS 190.265 and ORS 169.630.
6.

NORCOR provides jail services for Wasco, Hood River, Sherman, and

Gilliam Counties pursuant to ORS 169.610 et seq.
7.

NORCOR also houses inmates for other law enforcement agencies,

16

including United States Immigration and Custom Enforcement ("ICE"), pursuant to

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contractual agreements, such as the Intergovernmental Service Agreement ("IGSA") at

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issue in this case.

19
20

8.

NORCOR's custodial personnel serve and are sworn as Wasco County

Sheriff's Corrections Deputies.

21

9.

NORCOR personnel consider the County Sheriffs to be their "bosses."

22

10.

NORCOR's corrections deputies' duties are limited to corrections tasks.

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11.

Construction of NORCOR was financed by a General Obligation Bond

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that was retired using property tax assessments paid by taxpayers of Wasco, Hood

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River, Sherman, and Gilliam Counties.
Page 2-FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 12.

More than half of NORCOR' s operating expenses, including costs of

personnel, services, and equipment, have been and continue to be funded by property tax
payments from tax payers of Wasco, Hood River, Sherman, and Gilliam Counties.
13.
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contracts with other law enforcement agencies.
14.

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NORCOR also generates additional revenue by renting a warehouse that

is not needed for its own purposes.

8

9

NORCOR generates additional revenue to remain operational from its

15.

NORCOR has not attempted to calculate the marginal cost of incarcerating

inmates from any single jurisdiction, whether of its member counties or inmates it holds
on contracts.

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16.

NORCOR has calculated a daily per inmate cost of $97.00 per day.

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17.

NORCOR receives $80.00 per day for inmates held under the IGSA.

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18.

In 1999, NORCOR first contracted with federal authorities to hold persons

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charged with violating federal immigration laws.

15
16

19.

States Marshal's Service ("USMS").

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In November of 2014, NORCOR entered the current IGSA with the United

20.

Six months later, ICE was added as an "authorized agency user" of the

21.

Under the IGSA, NORCOR agreed to "accept and provide for secure

IGSA.

20

custody, safekeeping, housing, subsistence and care of Federal detainees," including

21

individuals who are awaiting a hearing on their immigration status or deportation.

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22.

NORCOR is also obligated to provide armed, qualified law enforcement

or correctional personnel to guard IGSA inmates who need outside medical care.
23.

When inmates are held under the IGSA by NORCOR, they are held solely

for alleged violations of immigration law.
Page 3 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 24.

The IGSA has no expiration date but can be terminated at any time

following 30 days written notice from either party.
25.

NORCOR uses the same facilities, equipment, and personnel for all

inmates, including those held under the IGSA.

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26.

Those held under the IGSA are confined in the same cell blocks, eat the

same food, have access to the same facilities, and are subject to the same procedures as

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state and local inmates.

27.

NORCOR' s expenses are paid from NORCOR's general operating

account.

28.

NORCOR does not maintain separate accounts or funds dedicated to pay

incarceration of IGSA inmates.

29.

In addition to the $80.00 per day NORCOR receives per IGSA inmate,

NORCOR receives an hourly rate for guard services provided outside the jail facility.

14

30.

15

preceding month.

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31.

NORCOR sends a monthly invoice to ICE for services rendered in the

Payments from ICE are deposited into NORCOR' s general operating

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account where they are commingled with funds from other sources including taxes

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received from Wasco, Hood River, Sherman, and Gilliam Counties, and are used for

19

general operating purposes.

20
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22

32.

NORCOR notifies ICE when it books a foreign-born person into custody

on state or local charges.
33.

NORCOR accomplishes this notice by emailing or faxing ICE the

23

arrestee's name, date of birth, current charges and identified place of birth on a form

24

provided by ICE.

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Page 4-FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 34.

NORCOR also provides notice of a foreign-born person's booking via

NORCOR's use of the NCIC and LEDS systems. (Plaintiffs do not co:r:i.tend this notice
violates ORS 181A.820.)
35.

Before a policy change in April of 2018, NORCOR would notify ICE when

a state or local inmate was scheduled to be released, whether the release was on
recognizance, bail, the end of a sentence of incarceration, or other resolution of the
7

inmate's state or local case.

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NORCOR to indicate which state or local inmates ICE wanted to hold when the inmates

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36.

In response to that notice, ICE would send a Form 1-203 Order to Detain to

state or local charges were resolved.
37.

While the 1-203 is titled an Order to Detain, it is not an order and is not

11

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signed by a judge or magistrate. The document is used for accounting and billing

13

purposes.

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38.

Prior to April of 2018, NORCOR would via a "paper transfer of custody"

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convert a state or local inmate who was released on their state or local charges, for any

16

reason, to an ISGA inmate at ICE's request if NORCOR had received an 1-203 from ICE.

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39.

A "paper transfer" was a notation the inmate was now solely in ICE

18

custody and subject to the ISGA.

19

NORCOR was paid by ICE for housing the inmate once the "paper transfer" was

20

completed.

21

40.

A physical transfer of custody did not occur.

After the policy change, ICE is now notified of the date of release of

22

inmates that have been sentenced and have a release date. If ICE agents are present at

23

NORCOR when the subject is released they may arrest the inmate in the lobby,

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otherwise the subject is free to go.

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Page 5- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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NORCOR to be held pursuant to the IGSA.
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An inmate arrested by ICE in the lobby may be turned back over to
None of the notices are required by the IGSA and are not made for any

state or local law enforcement purpose.
43.

The policy change was made, not after a deliberative administrative

process, but because NORCOR's former administrator Bryan Brandenburg "thought it
was a good idea" and "seemed like the thing to do."

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LEGAL STANDARDS

A motion for summary judgment shall be granted when there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. 1 No

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genuine issue as to a material fact exists if, based on the record before the court viewed

12

in a manner most favorable to the adverse party, no objectively reasonable juror could

13

return a verdict for the adverse party on the matter that is the subject of the motion for

14

summary judgment.2 The adverse party has the burden of producing evidence on any

15

issue raised in the motion as to which the adverse party would have the burden of

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persuasion at trial.3

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The parties agree that to determine the legislature's intent regarding the statutes

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involved herein the court must first look to the text and context of the statute, and then

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consider any pertinent legislative history the parties may offer for what it is worth.4 If

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the legislature's intent remains unclear after examining the text, context, and legislative

21

history, the court may resort to general maxims of statutory construction to aid in

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resolving the remaining uncertainty.5

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1

0RCP47C
Id.
3 Id.
4 State v. Gains, 346 Or 160 (2009).
5 Id.
2

Page 6 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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CONCLUSIONS OF LAW

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1. Plaintiffs' Standing

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As an initial issue, Defendant maintains Plaintiffs lack standing to seek the

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declaratory and injunctive relief they have requested. Standing is a term of art that is

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used to describe when a party possesses a status or qualification necessary for the assertion,

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enforcement, or adjudication of legal rights or duties.6 To say that a plaintiff has "no

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standing" is to say that the plaintiff has no right to have a tribunal decide a claim under the
8

law defining the requested relief, regardless whether another plaintiff has any such right.7

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When it is ruling on a standing issue, a court must focus on the wording of the

10

particular statute at issue, because standing is not a matter of common law but is, instead,

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conferred by the legislature.8 In particular, it is important that courts not interpret the

12

contours of standing in a particular case by looking at other statutes that confer standing in

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different circumstances.9

14

Plaintiffs are seeking relief under the Uniform Declaratory Judgrnent Acts and must

15

meet the standing requirements under that act. ORS 28.020 governs standing under that act

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and reads as follows:

17

"Any person interested under a deed, will, written contract or other writing
constituting a contract, or whose rights, status or other legal relations are affected by
a constitution, statute, municipal charter, ordinance, contract or franchise may have
determined any question of construction or validity arising under any such
instrument, constitution, statute, municipal charter, ordinance, contract or franchise
and obtain a declaration of rights, status or other legal relations thereunder."

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To assert a claim for declaratory or injunctive relief: (1) the plaintiffs must show
some injury or other impact upon a legally recognized interest beyond an abstract interest

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Morgan v. Sisters Sch. Dist #6, 353 Or 189 (2013).
v. State of Oregon, 306 Or 380 (1988).
8 Local No. 290, Plumbers and Pipefitters v. Oregon Dept. ofEnvironmental Quality, 323 Or 559 (1996)
9 Id., citing Benton County v. Friends of Benton County, 294 Or. 79, 82, (1982)
6

7 Eckles

Page 7 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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in the correct application or the validity of a law; (2) the injury must be real or probable, not
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hypothetical or speculative; and (3) the court's decision must have a practical effect on the

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rights that the plaintiff is seeking to vindicate. 10

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Plaintiffs contend they have satisfied the first prong of the test by being tax payers

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and the alleged misuse of tax revenues for immigration enforcement purposes by NORCOR

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results in higher taxes. Additionally, Plaintiffs contend ORS 294.100 and the common law

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create a legally recognized interest in preventing the expenditure of public moneys in

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excess of amounts provided by law, or for any other or different purpose than provided by

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law.

10

A mere allegation of taxpayer status is insufficient for Plaintiffs to have standing .11

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Plaintiffs must demonstrate they have suffered adverse tax consequences as a result of the

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challenged governmental action. 12

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evidence to establish a daily cost per inmate of $97.00 and a reimbursement rate of only

14

$80.00 per inmate from ICE under the IGSA. Given the average daily number of ISGA

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inmates the difference is a sufficient adverse tax consequence to grant Plaintiffs standing to

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challenge the ISGA and the other related immigration enforcement activities. Defendant

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has failed to present evidence to raise a genuine issue of material fact on this point.

In this matter Plaintiffs have presented sufficient

18

Plaintiffs reliance on ORS 294.100 and the common law is misplaced. ORS 294.100

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expressly makes it unlawful for any public official to expend any moneys in excess of the

20

amounts provided by law, or for any other or different purpose than provided by law.

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However, it only creates a right of action for a taxpayer when a public official misuses

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public funds constituting malfeasance in office or willful or wanton neglect of duty. None

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of those circumstances have been alleged and there is no evidence in the record to suggest

24

25

Morgan v. Sisters Sch. Dist #6, 353 Or at 195-197.
MT & M Gaming, Inc. v. City of Portland, 360 Or 544, 564 (2016)
iz Id.
10

11

Page 8 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 §

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those circumstances exist. Lacking the circumstances required to bring a direct action, it is

] 2

difficult to see how ORS 294.100 creates a legally recognized interest sufficient to grant

20 3

standing under the Uniform Declaratory Judgments Act. It is also difficult to reconcile

8 4

Plaintiffs' position with the Supreme Court's frequent holding that a bare allegation of

8 5

taxpayer status without an allegation of having suffered an adverse tax consequence is

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insufficient to grant standing.

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The cases cited by Plaintiffs to establish a common law or a settled doctrine legally

8

recognized interest do not establish such an interest, without an adverse tax consequence.

9

The Court in Burness v. Multnomah County 13 does discuss standing based on taxpayer status

10

but also clearly identifies government action plaintiff complained of as an injury to every

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taxpayer, in other words, an adverse tax consequence. In Burt v. Blumenauer 14 and Bahr v.

12

Marion County, 15 plaintiffs brought their cases under ORS 294.100 and did not seek a

13

declaratory judgment or injunction16, so standing as relevant here was not an issue. The

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Court did not discuss taxpayer standing in Glines v. Bain, 17 as the case was between

15

directors of the school district and the district attorney. Finally, in Tuttle v. Beem, the Court

16

again does not discuss standing, but given plaintiffs therein sought an injunction to prevent

17

the school board from issuing warrants, which would have likely resulted in an adverse tax

18

impact on plaintiffs, the case does not stand for a separate legally recognized right.

19

In summary, Plaintiffs have standing to challenge the IGSA and the other related

20

immigration enforcement activity based on the adverse tax impact established on this

21
22
23

13

24

15

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Burness v. Multnomah County, 37 Or 460 (1900)

Burt v. Blumenauer, 299 Or 55 (1985)
Bahr v. Marion County, 38 Or.App 597 (1979)
16 In Bahr plaintiff's original complaint did seek an injunction, but the second amended complaint
discussed in the opinion only sought relief under ORS 294.100.
17 Glines v. Bain, 157 Or. 358 (1937)
14

Page 9-FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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record, but Plaintiffs do not have a separate legally recognized interest sufficient to

2

otherwise establish standing.

3

2. Is NORCOR a Law Enforcement Agency Subject to ORS 181A.820

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Defendant maintains it is not a law enforcement agency under ORS 181A.820 and

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therefore the statutory prohibitions do not apply to NORCOR. Defendant argues NORCOR

6

is not a law enforcement agency because it does not detect, apprehend and/or arrest

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individuals who violate the law and its corrections staff is not authorized to engage in those
8

activities. Plaintiffs counter NORCOR is a law enforcement agency as the custodial part of

9

the County sheriffs' offices.

10

ORS 181A.010(7)(a) defines a "law enforcement agency" to mean County sheriffs,

11

municipal police departments, police departments established by a university under ORS

12

352.121 or 353.125 and state police. NORCOR's corrections staff are sworn Wasco County

13

Sheriff's Corrections Deputies and NORCOR provides jail services for its four member

14

counties. Additionally, NORCOR personnel consider the county sheriffs their bosses.

15

The county sheriffs of the member counties have the responsibility for the custody

16

and control of NORCOR's inmates. ORS 169.320 states if a county is located within an

17

intergovernmental corrections entity formed under ORS 190.265, the county sheriff of the

18

county in which the facility is located is responsible for the physical custody and control of

19

all persons legally committed to or confined in the facility unless a sheriff oversight

20

committee has been formed. If such a committee has been formed, then the committee has

21

all the duties and liabilities regarding the management of the facility and the physical

22

custody and control of all persons legally committed to or confined in the facility.

23

Several statutes make it clear that NORCOR as a regional correctional facility is

24

considered a county local correctional facility for its member counties. ORS 169.640 (1)

25

states, "for purposes of sentencing and custody of a misdemeanant, a regional correctional
Page 10-FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 o 1

facility shall be considered a county local correctional facility." ORS 190.265(6), under

� 2

which NORCOR was formed, states, "local correctional facilities provided by or furnished

20 3

to a county under this section shall be considered to be jail accommodations of the county

8 4

for purposes of ORS 135.215, 137.167 and 137.330."

>-.

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Given NORCOR's custodial employees are deputies of the Wasco County Sheriff,

<e 6

the employees consider the sheriffs their bosses, NORCOR is by statute the local

7

correctional facility, for most purposes, of each of the member counties, and the Wasco

8

County Sheriff or a committee of all four sheriffs is responsible for the physical custody and

9

control of the inmates, it is clear NORCOR is a law enforcement agency subject to ORS

10

181A.820. There is no genuine issue of material fact regarding whether NORCOR is a law

11

enforcement agency subject to ORS 181A.820.

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3. Do NORCOR's activities under the IGSA violate ORS lBlA.820

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The primary dispute on this issue is whether NORCOR' s activities under the IGSA

14

are for the purpose of apprehending persons whose only violation of law is that they are

15

person of foreign citizenship present in the United States in violation of federal

16

immigrations laws. In order to determine what the legislature intended by the phrase "for

17

the purpose of apprehending," the court must start with an examination of the statutory

18

text and context. 18 When a word is not statutorily defined, it is assumed the legislature

19

intended for the word to have it ordinary meaning.19 Webster's Third New International

20

Dictionary is a primary source for Oregon courts to identify the plain, natural, and ordinary

21

meaning of statutory terms. That infamous tome defines apprehend as "to take (a person)

22

in legal process: ARREST, SEIZE.20" When consulting a definition, it is important to keep in

23

24
25

State v. Gains, 346 Or 160 (2009)
Kinzua Resources, LLC v. Oregon Department of Environmental Quality, 295 Or App 395,403 (2018) (citing
State v. Cox, 291 Or App 319,322 (2008)).

18

19

20

Webster's Third New International Dictionary at 106 (unabr. ed. 2002).

Page 11-FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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mind the part of speech that the legislature used. 21 Based on those principles the ordinary

2

meaning of apprehending is taking a person in legal process, arresting, or seizing.

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action of "apprehending" is not commonly understood to mean holding someone in jail or

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Both parties cite portions of the legislative history which they feel support the

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The

prison.

conclusion they believe the court should reach. Plaintiffs did highlight some portions,

I

which reference jail overcrowding, but it is clear the IGSA or similar arrangement was not

8

the situation contemplated at that time.

9

particularly persuasive on this issue.

In any event, the legislative history is not

10

11

custody, safekeeping, housing, subsistence and care of Federal detainees, including those

12

held solely for alleged violations of immigration law. NORCOR is not apprehending,

13

arresting, or seizing Federal detainees or inmate as those terms are commonly used or

14

within their ordinary meaning nor are NORCOR's actions for the purpose of apprehending.

15

The IGSA inmates have been apprehended, arrested, or seized by ICE prior to arriving at

16

NORCOR. Therefore, there is no genuine issue of material fact on this issue and NORCOR

17

is entitled to summary judgment on this issue.

Under the IGSA, NORCOR agreed to and does accept and provide for secure

4. Do NORCOR's notifications to ICE violate ORS 181A.820

18

a. Booking Notifications

19
20

As outlined in the findings of facts above, NORCOR notifies ICE when a foreign-

21

born person is booked into its facility on state or local charges. It provides this notice two

22

different ways. First, ICE is notified in some fashion through NORCOR' s use of the Law

23

Enforcement Data System and the National Crime Information Center system. Second,

24
25

Kinzua Resources, LLC v. Oregon Department of Environmental Quality, 295 Or App 395,403 (2018) (citing
State v. Cox, 291 Or App 319,322 (2008)).

21

Page 12 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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ICE.

3

second does violate the statute.

NORCOR completes a form provided by ICE and faxes or emails the completed form to
Plaintiffs do not contend the first method violates ORS 181A.820 but contend the

ug. 4

The prohibition of ORS 181A.820 only applies to "persons whose only violation of

5

law is that they are persons of foreign citizenship present in the United States in violation of

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federal immigration laws." Since any person being booked by NORCOR has violations of

I

law in addition to any violation of federal immigration laws, the prohibition does not
8

apply.

9

Additionally, the statute permits a law enforcement agency to exchange information

10

with ICE to verify the immigration status of a person if the person is arrested for any

11

criminal offense. The legislative history makes it clear the legislature intended to permit

12

law enforcement to notify ICE when a person is arrested to permit ICE to take follow up

13

actions if ICE deems necessary. If the prohibition applies to booking notifications, the

14

notifications fall within the exception of ORS 181A.820 (2)(a).

15

b. Release Notifications

16

Historically, NORCOR notified ICE when state or local prisoners were scheduled to

17

be released, either on bail or because their state law cases have been resolved. After a

18

policy change in April of 2018, NORCOR now notifies ICE of the date of release of inmates

19

that have been sentenced and have a release date. If ICE agents are present at NORCOR

20

when the subject is released, they can arrest the inmate in the lobby, otherwise the person

21

can leave. As the inmate is being released, their only remaining violation of law is of

22

federal immigration laws, making the release notifications distinguishable from the booking

23

notifications.

24

NORCOR argues it does not investigate whether persons booked into its facility are

25

in the United States legally, so it does not detect persons in violation of federal immigration
Page 13 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

 I

1

laws. NORCOR then asserts because it does not detect such persons its practice of notifying

2

ICE does not qualify as detecting under ORS lSlA.820(1). That logic is circular and ignores

3

the plain language of the statue, which prohibits use of agency resources for the purpose of

0
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detecting or apprehending persons in the United States in violation of federal immigration

5

laws. The record in this case establishes no purpose for the release notifications except for

6

the purpose of detecting and apprehending persons in the United States in violation of

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federal immigration laws. Prior to the policy change, state or local inmates were "paper
8

transferred" to IGSA status upon receipt of an 1-203 from ICE and after the policy change

9

ICE has the opportunity to and does physically arrest people in response to the release

10
11

notices.
The release notifications also do not fall within the prohibition's exceptions

12

contained in ORS lSlA.820(2).

The first exception permits NORCOR to verify the

13

immigration status of a person if the person is arrested for any criminal offense. The release

14

notification is not to verify the person's immigration status, as that was done at booking.

15

Additionally, the person is not arrested or being arrested, in fact the opposite; they are

16

being released. The second exception permits NORCOR to request criminal investigation

17

information. The release notifications make no such request and no such information is

18

provided.

19

There is no genuine issue of material fact regarding NORCOR's notification

20

practices. NORCOR is entitled to summary judgrnent as to its booking notifications.

21

Plaintiffs are entitled to summary judgrnent and a declaration NORCOR's release

22

notifications do violate ORS 181A. 820.

23
24

25
Page 14- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
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5. Does NORCOR's Former "Paper Transfers" Violate ORS 181A.820.

2

a. Is Plaintiffs' Challenge to the Paper Transfers Practice Moot?

3

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NORCOR maintains Plaintiffs' challenge to the "paper transfers" is moot following

the policy change in April of 2018. However, voluntary cessation of a practice that is
challenged in an action for declaratory and injunctive relief does not, in itself, render an

., 6
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7

action moot. 22 NORCOR discontinued "paper transfers" after this litigation had been

8

was the thing to do" and he was free to "dictate policy." NORCOR has provided no

10

Plaintiffs have also established at least one inmate was held via a "paper transfer" after

·.::

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11

12
13

14

pending for several months because in the words of former Administrator Brandenburg, "it
indication it would not reinstate the policy or under what circumstances it would do so.

April of 2018. NORCOR's ability to reinstate the policy on a whim or to impose it on a case

by case basis prevents Plaintiffs' challenge from being moot.

b. Do "Paper Transfers" Violate ORS 181A.820?

Prior to the April 2018 change in policy, if NORCOR had received an I-203 from ICE

15

regarding an inmate, NORCOR would continue to hold the inmate when they were

17

local charges, NORCOR would note the inmate was an ICE prisoner and start charging ICE

16

otherwise free to go on their state or local charges. Once the inmate was free on the state or

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for each day of continued detention.

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change in how the inmate was treated or housed.

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ICE agents were not required to and did not

physically place the inmate in custody. Other than the paper change in status, there was no
NORCOR maintains the I-203 is an effective assertion of custody over an inmate by

ICE and it is thus authorized to maintain custody of the inmate under the IGSA. NORCOR

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attempts to distinguish its position from that of Clackamas County in Miranda-Olivares v.

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Tanner v. Oregon Health Sciences University, 157 Or App 502 (1998); Safeway, Inc. v. Oregon Public
Employees Union, 152 Or. App 349 (1998).

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22

Page 15- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
SUMMARY JUDGMENT

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Clackamas County23 based on the IGSA and the I-203, rather than a Form I-247 at issue in

2

Miranda-Olivares. However, like the I-247 in Miranda-Olivares, an I-203 is merely a request,
expressly stating, "please detain ... the following." The I-203 does not constitute an arrest

0
0

u

0

u
0.:,

. C:

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warrant, it does not establish probable cause, and is not signed by a judge or magistrate.

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The evidentiary record indicates the I-203 is just an accounting document. Defendants did

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not provide any evidence or legal authority to demonstrate the I-203 has any more

7

authority than the I-247 at issue in Miranda-Olivares. An I-203 does not authorize NORCOR

8

to maintain custody of a state or local inmate who is released on those state or local charges.

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An I-203 does not authorize or mandate continued custody.

0.:,

I

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A re-seizure or subsequent seizure occurs when an inmate remains in jail after the

11

original basis for incarceration ceases to exist.24 When a state or local inmate is no longer

12

subject to custody on those charges, NORCOR does not have authority to maintain custody

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and must release the inmate. By maintaining custody via a "paper transfer" NORCOR is

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engaging in a subsequent seizure of the inmate for the purpose of apprehending a person

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whose only violation of law is that they are a person of foreign citizenship present in the

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United States in violation of federal immigration laws and that violates ORS 181A.820.

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Plaintiffs are entitled to summary jud gment and a declaration that NORCOR' s former

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practice of maintaining custody for ICE via the so-called "paper transfers" violates ORS

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181A.820.
ORDERS

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NOW, THEREFORE, IT IS HEREBY ORDERED that

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1.

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Plaintiffs' and Defendant's motions for summary judgment are granted and

denied as outline above; and

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23

24

2014 WL 1414305 (D Or Apr 11, 2014).
Pierce v. Multnomah County, 76 F3d 10320 (9 th Cir. 1996).

Page 16 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE:
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2.

Counsel for all parties should attempt to prepare mutually agreeable

judgments reflecting the above decision.

C'�

DATED this _Q__
>e--_day of February, 2019.

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o.)
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