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Brewer v. Department of Fish and Wildlife5/10/2000
the record," ORAP 5.45(2), and that this court should not exercise its discretion to consider the error. See generally Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991). Plaintiffs are confusing two related, yet analytically distinct, concepts: unpreserved arguments in support of reversal of a ruling and alternative ground for affirmance of a ruling. The state defendants are not attempting to make a claim of error for the first time on appeal. ORAP 5.45 relates only to assignments of error in the briefs of appellants or cross-appellants. It places no limitations on arguments advanced by respondents on appeal. Neither ORAP 5.55 nor ORAP 5.57, relating to the contents of respondents' briefs, requires respondents who are arguing in favor of sustaining rather than reversing a ruling of the trial court to have preserved their legal arguments in the trial court. Contrary to plaintiffs' assertions, this court has regularly considered alternative ground for upholding the rulings of trial courts. However, this court has placed a limitation on the general proposition that we may affirm a trial court's ruling on alternative grounds: We may generally "affirm a ruling of the trial court on grounds different from those on which the court relied 'provided that there evidence in the record to support the alternative ground,'" but not "'if the parties were not allowed to develop the factual record at trial to address the issue raised for the first time on appeal.'" State v. Jacobsen, 142 Or App 341, 345, 922 P2d 677 (1996), quoting State v. Knox, 134 Or App 154, 160-61, 894 P2d 1185 (1995), vacated and remanded on other grounds 327 Or 97 (1998). Here, plaintiffs do not argue that any factual record is necessary in order to apply the general principles of sovereign immunity to the state defendants. It is not in dispute that the state agency defendants are, in fact, state agency defendants. Because the state's alternative ground for affirmance presents a purely legal question and requires no factual development of a record, we are able to consider it in the first instance on appeal.
On the merits, plaintiffs argue that ORS 105.682 "does not seek to bestow immunity on the state because it is a 'sovereign,'" but rather seeks to bestow immunity on all qualified recreational land owners. Plaintiffs therefore reason that only ORS 30.265, pertaining to tort actions against public bodies, bestows sovereign immunity on the state and that sovereign immunity is necessarily waived unless specifically exempted within ORS 30.265. Thus, in plaintiffs' view, sovereign immunity can play no part in an analysis of the constitutionality of the Act. We reject the premise of plaintiffs' argument as unsound. Sovereign immunity is not something that is bestowed on the state by a legislative act. It is a characteristic that the state, as sovereign, simply possesses. The legislature has the power to waive the state's sovereign immunity if it does so in accordance with Article IV, section 24. The legislature must affirmatively act to waive the state's sovereign immunity but it need not enact legislation to "bestow" sovereign immunity on the state.
Plaintiffs' argument reduces to the proposition that there is an inconsistency between ORS 30.265, which partially waives the state's sovereign immunity but contains exceptions that do not pertain to recreational land immunity, and ORS 105.682, which provides recreational land immunity to the state, as well as to other qualified landowners. We see no inconsistency that would implicate the remedies clause of Article I, section 10. Although it is possible that a plaintiff might make a purely statutory argument that ORS 30.265 waived any immunity the state otherwise would have had under OR
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