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The typical university physics department is not known for allegations of theft (the tort equivalent is called “conversion”) of physical equipment—maybe ideas are stolen, but it’s a bit more difficult to hide someone else’s particle accelerator in a backpack. So the recent case coming to the Oregon Court of Appeals from the University of Oregon was an interesting read.

Professor and quantum optics physicist Dr. Thomas Mossberg (whose work includes the “two-photon excitation microscopy”1 mentioned in the title), resigned from UO in September 2004. Naturally, he was concerned about the laboratory equipment that he brought with him from Harvard in 1986, along with the equipment that he was contractually allowed to take with him from his tenure at UO (in fact, he was going to donate much of it to UO, but it was by rights his property to donate). The University balked at terms, and eventually, negotiations broke down. However, during the time negotiations were proceeding, and despite an instruction from the University to leave the professor’s equipment in place until the negotiations had concluded, other professors in the department cleared out his lab. In doing so, the University professors in the department dismantled Mossberg’s equipment, rendering it worthless, and passed out specific pieces of equipment to others in the department. In other words, Mossberg alleged that his colleagues raided his lab, scavenged the good bits, and stored anything they couldn’t use— breaking much of it in the process.

Mossberg sued for conversion and a constitutional taking of his private property, as well as breach of contract. This note only focuses on the first two issues.

As the court noted, “[t]o state a claim for conversion, a party must establish the intentional exercise of dominion or control over a chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel.” Emmert v. No Problem Harry, Inc., 222 Or App 151, 159–60, 192 P3d 844 (2008). UO attempted to deflect the conversion claim by arguing, as the State attempted in the Measure 37 cases, that the Administrative Procedures Act precluded suit because Mossberg failed to exhaust administrative remedies. In Mossberg’s case, the regulations cited by UO concerned the administrative “grievance process” for employees. The trial court actually bought this argument and dismissed the professor’s tort claim. Problem for UO was that once he resigned, Mossberg was no longer an employee, and the specific administrative grievance process by its terms only applied to “employees”—including requiring a campus address and phone number, etc. That claim was remanded to the trial court, presumably with Professor Mossberg going to trial on whether or not his equipment was in fact destroyed.

The more interesting holding concerned Mossberg’s takings claim. The basic contours of the takings doctrine were set out as follows:

Article I, section 18, of the Oregon Constitution provides, in part, that "[p]rivate property shall not be taken for public use * * * without just compensation[.]" An action, such as this one, "to recover the value of private property that the government has taken without first filing condemnation proceedings is referred to as an action for 'inverse condemnation.'" Vokoun v. City of Lake Oswego, 335 Or 19, 26, 56 P3d 396 (2002). A plaintiff asserting a claim for inverse condemnation must show that the governmental act alleged to constitute a taking was done with the intent to take the property for public use. Id. at 27; Worman v. Columbia County, 223 Or App 223, 234, 195 P3d 414 (2008); see also Willard v. City of Eugene, 25 Or App 491, 494, 550 P2d 457 (1976) (an inverse condemnation action is proper only where the government has taken property for a public use).

Personal property, such as the lab equipment, can be taken by way of “substantial interference” with it. So for Mossberg to show inverse condemnation of his lab equipment, he had to show that it was taken or destroyed for a “public use.” Focusing on the equipment destroyed by the improper dismantling, the court determined that because the University staff’s dismantling of the equipment was not intended to result in its destruction, then the destruction was not the “public use” of the equipment. In other words, if the equipment was just tossed in a waste basket to make room for a new professor or to clear lab space, that might be a takings, but as it was, the haphazard moving of sensitive physics equipment simply destroyed it by accident, so there is no takings.

This result makes no sense. The equipment was moved for a public use (the University’s) of the lab space. The consequence of the move was that the equipment—much of it—was broken beyond repair. That appears to this author to be substantial interference with private property by a government entity, to the detriment of the property. Or, more simply, a takings.

Chalk up another case to the “incompetence is not unconstitutional” file. Incompetence should not be a shield behind which government agents can destroy citizens’ rights. Such a ruling simply encourages arbitrary government actions, since malice is so often difficult to prove.