Brown v. Adult and Family Services

• Jurisdiction: Oregon
• Citation: Brown v. Adult and Family Services, 51 Or.App. 213, 625 P.2d 160 (Or. App. 1980)
• Docket Number: No. 5-3301-YIG005-5,5-3301-YIG005-5
• Parties: Lavenna BROWN, Petitioner, v. ADULT AND FAMILY SERVICES, Keith Putman, Administrator, Respondents. ; CA 16980. . On Petitioner's Petition For Attorney Fees
• Court: Oregon Court of Appeals
• Decision Date: 30 September 1980

Page 160

625 P.2d 160

51 Or.App. 213

Lavenna BROWN, Petitioner, v.ADULT AND FAMILY SERVICES, Keith Putman, Administrator, Respondents.

No. 5-3301-YIG005-5; CA 16980.

Court of Appeals of Oregon.

On Petitioner's Petition For Attorney Fees Sept. 30, 1980 On Respondents' Objection to Petition for Attorney Fees Oct 6, 1980Decided March 16, 1981 Reconsideration Denied May 28, 1981.

Tom Steenson, Oregon Legal Services Corp., The Dalles, for the petition.

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

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

BUTTLER, Judge.

Petitioner, the prevailing party in Brown v. Adult and Family Services, 48 Or.App. 232, 616 P.2d 580(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."

This is not a case in which the administrative agency out of whose funds an award would be drawn has functioned as a disinterested adjudicatory tribunal.Cf.Davidson v. Employment Div., --- Or.App. ---, --- P.2d ----(March 16, 1981)(petition for attorney fee denied);Wasco County v. AFSCME, 31 Or.App. 765, 571 P.2d 549(1977).Neither is it a case where the cost of the litigation may be considered a normal cost of doing business by a commercial enterprise.SeePolizos v. OLCC, 40 Or.App. 135, 137-38, 594 P.2d 1248(1979)(petition for attorney fees denied).

In this case, we reversed an order of an administrative hearing officer from Adult and Family Services, who ruled that proceeds of a private loan were an asset available to reduce petitioner's need and hence her welfare grant amount.We found that the hearing officer misinterpreted the applicable administrative rules, because the loan was a liability rather than an asset.48 Or.App. at 233, 616 P.2d 580.

The state argues that an award of attorney fees is inappropriate here for two reasons.First, an award to a legal aid service puts the court in the executive position of reducing the budget of one agency and increasing that of another.Second, because the legislative intent of the statute is to use public funds to reimburse a citizen for legal expenses where that citizen has successfully challenged an arbitrary agency action, the rationale no longer makes sense when the public has already paid for an attorney from legal aid for the citizen.

As to the first point, Oregon Legal Services is not a state agency, but is a nonprofit corporation.Moreover, according to petitioner's brief, Oregon Legal Services receives no state funds.But seeDennis v. Chang, 611 F.2d 1302, 1305(9th Cir.1980).(In light of language, legislative history and purposes of Civil Rights Attorneys' Fees Awards Act of 1976, codified at 42 U.S.C. § 1988, award of attorney fees to litigant represented by legal services organization may not be denied on ground that defendant partially supported organization through state funding.)

As to the second point, we conclude that the purpose of ORS 183.495 would not be served by an award of attorney fees here, even if petitioner were represented by private counsel.¹

The legislative history of ORS 183.495 indicates that the Attorney General's office offered an amendment to HB 2068 to give the Court of Appeals the discretionary authority to award attorney fees to the petitioner in an administrative proceeding in those cases in which the agency has acted arbitrarily.Minutes, Senate Committee on Judiciary, June 11, 1975, HB 2068, at 2.Attorney GeneralLee Johnson testified as follows before the Senate Committee on Judiciary on June 11, 1975, on HB 2068 (Tape 46, side 2):

"But I feel strongly, and I know that Judge Schwab has testified before this committee; and I have polled him on this, that the Court of Appeals should have authority to award attorney fees to a petitioner who has appeared in an administrative proceeding.There are some cases that come up where the agency has been arbitrary; there is not much money in controversy, and I think the state should be assessed for attorney fees in those cases.I do not think this will have any dramatic effect but there are some cases where this is justified, and that is the purpose of the amendment it simply provides that the Court of Appeals can award attorney fees in its discretion."

Our review of the record ² satisfies us that the agency action in this case was an erroneous interpretation of administrative rules.In an unrelated case, the same hearing officer eight months previously had decided a similar question differently.³His determination in this case, however, was addressed to the issue as framed by claimant, and on that issue was correct, although the ultimate conclusion was wrong.⁴We decline to characterize what appears to be a good faith interpretation of...