Leo v. Keisling

FILED: AUGUST 5, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

SUSAN LEO and JONAH F. HYMES,

Plaintiffs-Appellants,

v.

PHIL KEISLING, Secretary of State,
and STATE OF OREGON,

Defendants-Respondents,

and

KEVIN MANNIX and STEPHEN DOELL,

Intervenors.

(CC 98C-17232; CA A103357; SC S45677)

En Banc

On appellants' petition for attorney fees and costs filed October 28, 1998.

Submitted October 29, 1998.

Katherine A. McDowell, ACLU Foundation of Oregon, Portland, filed the petition for appellants.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Richard D. Wasserman, Assistant Attorney General, Salem, filed the response for respondents.

No appearance by intervenors.

DURHAM, J.

The petition for attorney fees is denied. The petition for costs is allowed in the amount of $246.50.

DURHAM, J.

This matter is before the court on plaintiffs' petition for attorney fees and costs. Plaintiffs do not seek an award of attorney fees against intervenors. The procedural history of the case and the court's decision on the merits appear in Leo v. Keisling, 327 Or 556, 964 P2d 1023 (1998). We allow costs in the sum of $246.50 and deny the petition for attorney fees.

In their complaint, plaintiffs challenged the Secretary of State's determination that a proposed initiative measure qualified for placement on the ballot. Plaintiffs asserted that the Secretary of State's action violated OAR 165-014-0030, ORS 250.105, and Article IV, section 1(2)(b), of the Oregon Constitution. Plaintiffs also argued that OAR 165-014-0030 and ORS 250.105 conflicted with that provision of the Oregon Constitution and that the Secretary of State, in applying the statute and rule, had accomplished a result that the Oregon Constitution prohibits.

The circuit court entered judgment for defendants. Plaintiffs appealed. The Court of Appeals certified the appeal to this court, and this court accepted the certification. See ORS 19.405 (describing certification procedure).

Following the decisional method described in Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 687 P2d 785 (1984), this court determined that it could decide plaintiffs' claim on a subconstitutional level. The court held that, in qualifying the proposed initiative measure for the ballot, the Secretary of State had relied on OAR 165-014-0030, which the Secretary of State had adopted under ORS 250.105(4). The court concluded, however, that the rule violated that statute and that the Secretary of State's action in qualifying the measure was not authorized by law. Accordingly, the court reversed the judgment and remanded the case for further proceedings.

Plaintiffs now seek costs on appeal in the sum of $246.50. Defendants do not object. We award costs in that sum.

Plaintiffs also seek attorney fees in the sum of $19,918, under several statutes and the court's inherent equitable authority to award attorney fees. See Armatta v. Kitzhaber, 327 Or 250, 286-89, 959 P2d 49 (1998), and Deras v. Myers, 272 Or 47, 65-67, 535 P2d 541 (1975) (each discussing court's equitable authority to award attorney fees to a prevailing party as part of relief). Defendants concede that plaintiffs are prevailing parties, but assert that plaintiffs are not entitled to recover attorney fees or, in the alternative, that the amount sought is excessive.

We first consider our authority to award attorney fees in this case. We understand plaintiffs to argue that ORS 246.910 authorizes an award of fees here because it incorporates the authorization to award attorney fees stated in ORS 183.497 and also incorporates the court's inherent equitable authority to award attorney fees.

We turn to the text and context of the pertinent statutes. ORS 246.910 provides, in part: