Davidson v. Employment Division

625 P.2d 162 (1981)

51 Or.App. 219

Glen DAVIDSON, Petitioner, v. EMPLOYMENT DIVISION, Raymond P. Thorne, Administrator, and Global Housing, Ltd., Respondents.

No. 80-AB-167; CA 17206.

Court of Appeals of Oregon.

Petition for Attorney Fees September 16, 1980.

Petition for Attorney Fees September 24, 1980.

Decided March 16, 1981.

Reconsideration Denied May 28, 1981.

Christopher Cadin, Oregon Legal Services Corp., The Dalles, for the petition.

James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., and James C. Rhodes, Asst. Atty. Gen., Salem, contra.

Before JOSEPH, C.J., and THORNTON and BUTTLER, JJ.

On Petitioner's Petition for Attorney Fees September 16, 1980.

On Respondent Employment Division's Objection to Petition for Attorney Fees September 24, 1980.

*163 BUTTLER, Judge.

Petitioner, the prevailing party in Davidson v. Employment Division, 48 Or. App. 119, 616 P.2d 540 (1980), has moved for an award of attorney fees under ORS 183.495, which provides:

"Upon judicial review of a final order of an agency when the reviewing court reverses or remands the order it may, in its discretion, award costs, including reasonable attorney fees, to the petitioner to be paid from funds appropriated to the agency."

In Wasco County v. AFSCME, 31 Or. App. 765, 767-68, 571 P.2d 549 (1977), we declined to award attorney fees under the above statute because they would perforce be paid out of funds appropriated to the Employment Relations Board, an administrative agency that had functioned as a disinterested adjudicatory tribunal. We reasoned:

"* * * When so functioning, an agency is like a specialized court, and we are not aware of any serious suggestion that when a court is reversed an award of attorney fees be made to the winner on appeal, to be paid out of the court's operating funds." 31 Or. App. 767, 571 P.2d 549.

Here, the Employment Division and its Appeals Board acted not in the capacity of a party, but rather as a disinterested tribunal with quasi-judicial powers (see ORS 657.630, 657.690), which adjudicated rights between the employer and the employe. As in Wasco County, we exercise our discretion against awards of attorney fees in such cases.[1]

Petition denied.

NOTES

[1] Having disposed of the question on that ground, we need not decide whether the fact that petitioner is represented by a legal aid organization would make a difference in a case where an award of attorney fees under the statute in question is otherwise appropriate. See West v. French, 51 Or. App. 143, 625 P.2d 144 (1981). The underlying purpose of the statute would then be an important consideration.