Johnson v. Employment Div.

• Jurisdiction: Oregon
• Citation: Johnson v. Employment Div., 668 P.2d 416, 64 Or.App. 276 (Or. App. 1983)
• Docket Number: No. 81-AB-415,81-AB-415
• Parties: Fred D. JOHNSON, Petitioner, v. EMPLOYMENT DIVISION and City of Pendleton, Respondents. ; CA A20618.
• Court: Oregon Court of Appeals
• Decision Date: 10 August 1983

Page 416

668 P.2d 416

64 Or.App. 276

Fred D. JOHNSON, Petitioner, v.EMPLOYMENT DIVISION and City of Pendleton, Respondents.

No. 81-AB-415; CA A20618.

Court of Appeals of Oregon.

Aug. 10, 1983.

Reconsideration Denied Sept. 30, 1983.

Daniel W. Brandt, Oregon Legal Services Corp., Pendleton, for petition.

Jan Peter Londahl, Asst. Atty. Gen., Salem, contra.

Rudy M. Murgo, City Atty., Pendleton, contra.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Petitioner, the prevailing party in Johnson v. Employment Division, 56 Or.App. 454, 642 P.2d 329(1982), seeks an award of an attorney fee pursuant to ORS 183.497, which mandates such an award under certain circumstances.This is our first occasion to construe that statute, although we have recently made a definitive construction of its companion statute, ORS 183.495, in Van Gordon v. Ore. State Bd. of Dental Examiners, 63 Or.App. 561, 666 P.2d 276(1983).We deny award of an attorney fee.

This case, as it was first before us involved a petition for judicial review of an order of the Employment Appeals Board(EAB) disqualifying petitioner from unemployment compensation benefits on the ground that he had been dismissed for misconduct in connection with his work.The participating parties were the petitioner and his employer (City of Pendleton); the Employment Division waived appearance.EAB acted solely as a quasi-judicial tribunal.SeeWasco County v. AFSCME, 31 Or.App. 765, 571 P.2d 549(1977)(attorney fee not awarded under companion statute when an agency has acted as an adjudicative tribunal rather than as a litigant);Van Gordon v. Ore. State Bd. of Dental Examiners, supra, 63 Or.App. at 565 n. 3, 666 P.2d 276.

ORS 183.497 provides:

"(1) Notwithstanding ORS 183.495, in a judicial proceeding designated under subsection (2) of this sectionthe court shall allow a petitioner reasonable attorney fees and expenses if the court finds in favor of the petitioner and determines that the state agency acted without a reasonable basis in fact or in law.

"(2) The provisions of subsection (1) of this section apply to an administrative or judicial proceeding brought by a petitioner against a state agency, as defined in ORS 291.002, for:

"(a) Judicial review of a final order as provided in ORS 183.480 to 183.484;

"(b) Judicial review of a declaratory ruling provided in ORS 183.410; or

"(c) A judicial determination of the validity of a rule as provided in ORS 183.400.

"(3) Amounts allowed under this section for reasonable attorney fees and expenses shall be paid from funds available to the state agency whose final order, declaratory ruling or rule was reviewed by the court.The court may withhold all or part of the attorney fees from any award to a petitioner if the court finds that the state agency has proved that its action was substantially justified or that special circumstances exist which make the award of all or a portion of the attorney fees unjust."

We turn now to a detailed examination of the statute.

1."(1) Notwithstanding ORS 183.495 * * * "

ORS 183.495¹ is a statute which confers on this court the discretionary authority to award attorney fees to a prevailing petitioner when we have reversed or remanded a final agency order.We have fully spelled out the manner in which we will exercise that discretion in Van Gordon v. Ore. State Bd. of Dental Examiners, supra.As will appear, the present statute differs from 183.495 in several respects, the most important being that it is mandatory, not permissive, and applies to a broader range of cases than does ORS 183.495.

2. " * * * in a judicial proceeding designated under subsection (2) of this section * * * "

Two aspects of this phrase deserve attention.The first is that it applies to judicial proceedings, i.e., it is a statute enabling courts to award attorney fees--a fact made patent by the section's subsequent statement that "the court * * * shall allow a petitioner[a fee]."The second aspect is the reference to subsection (2), which tells us what agencies and what actions of those agencies are included within the terms of subsection (1).Because the balance of our examination of subsection (1) must be made in light of the range of cases it embraces, we digress to parse through subsection (2).

3."The provisions of subsection (1) of this section apply * * * "

That is, this subsection states the scope of a reviewing court's authority to make an award of attorney fees; it describes the range of cases in which such an action is permissible.

4." * * * TO AN ADMINISTRATIVE OR JUDICIAL PROCEEDING * * * " (emphasis supplied.)

This is one of the statute's mysterious provisions.As will subsequently appear, all of the "proceedings" contemplated by this subsection are listed within it, and all those listed are judicial, not administrative, decisions.What, then, does the phrase, "an administrative * * * proceeding," mean?

The phrase was added by an amendment to the original bill by the Senate Justice Committee.(Senate Justice Committee, Minutes, July 9, 1981.)The best explanation offered by anyone that even hints at the amendment's purpose is a statement by Senator Powell, a proponent of the measure:

"The way the bill is currently worded, you would not have any award until or unless you appeal to the Court of Appeals. * * * "(Senate Justice Committee, Minutes, May 6, 1981.)

This statement suggests that the purpose of the amendment was to make it possible for a petitioner to recover his attorney fees expended before the agency, in addition to judicial review.If that was the purpose--and we cannot be sure--the amendment was inserted at the wrong place in the bill.There is no way to read the language of subsection (2) as a whole without concluding that the authority to make awards is limited to courts for proceedings before courts.In order to accomplish this possible legislative purpose, we would be required to ignore the phrase in subsection (2), where it was inserted, and judicially amend subsection (1) to provide for an award of "attorney fees and expenses [whether incurred before the agency or on judicial review ]."This seems to us to be judicial legislation, not interpretation.

5. " * * * brought by a petitioner against a state agency * * * "

We believe, and therefore hold, that the phrase "against a state agency" means something more than that the agency was a nominal respondent in the proceeding.It includes circumstances in which the agency actively opposes, before the reviewing court, the petitioner's position.CompareVan Gordon v. Ore. State Bd. of Dental Examiners, supra, withWasco County v. AFSCME, supra.It also includes those cases in which the agency that made the challenged order or rule is the real protagonist, even if, for some reason, it has chosen not to appear and take part in the judicial proceeding.

6. " * * * a state agency, as defined in ORS 291.002 * * * "

ORS 291.002(7) defines an "agency":

"(7)'State agency' or 'agency' means every state officer, board, commission, department, institution, branch or agency of the state government, whose costs are paid wholly or in part from funds held in the State Treasury, except the Legislative Assembly, the courts and their officers and committees, and except the Secretary of State and the State Treasurer in the performance of the duties of their constitutional offices."

We are not sure--and, again, the legislative history does not explain--why the legislature chose to adopt the definition in ORS 291.002 when there was already a perfectly good definition in the APA.²In any event, the two principal distinctions in ORS 291.002--the requirement of state financing and the exclusion of the Secretary of State and Treasurer--do not appear to be significant in this case.

7." * * * [brought by a petitioner against a state agency * * * for:](a) Judicial review of a final order as provided in ORS 183.480 to 183.484 * * * "

This is a general reference to familiar judicial review processes and requires no special discussion.ORS 183.480 defines who may seek judicial review of agency orders;ORS 183.482 provides the framework for review by this court of orders in contested cases;ORS 183.484 provides the framework for judicial review in circuit court of orders in other than contested cases.This is the traditional arena in which the companion statute, ORS 183.495, has been applied.

8." * * * [brought by a petitioner against a state agency * * * for:](b) Judicial review of a declaratory ruling provided in ORS 183.410 * * * "

Again, this is a cross-reference to a familiar portion of the APA scheme, i.e., the declaratory ruling statute.An interesting question, technically outside the scope of the present inquiry, could be raised as to whether such agency rulings, when issued, are agency "orders" under the companion statute, ORS 183.495.SeeORS 183.310(5).

9." * * * [brought by a petitioner against a state agency * * * for:](c) A judicial determination of the validity of a rule as provided in ORS 183.400."

This is the third familiar area of judicial review of agency action: direct review of agency rules.Such agency actions are clearly not included under ORS 183.495.SeeORS 183.310(8).

Having reviewed the provisions of subsection (2)'s concerning the scope of subsection (1)'s applicability, we turn once again to the remaining provisions of subsection (1).

10."[Notwithstanding ORS 183.495, in a judicial proceeding designated under subsection (2) of this section]the court shall allow a petitioner reasonable attorney fees * * * "

This provision is mandatory; where the triggering circumstances exist, this court has no discretion under ORS 183.497.The phrase, "reasonable attorney fees," does, however, grant this court some discretion as to how much of a fee shall be awarded.

11. " * * * and expenses * * * "

This provision differs from the usual phrase, "and costs."Its use is not...