State ex rel. Pend-Air Citizen's Committee v. City of Pendleton

• Decision Date: 04 March 1997
• Docket Number: PEND-AIR
• Parties: STATE ex rel.CITIZEN'S COMMITTEE and Vera Simonton, Appellants, v. CITY OF PENDLETON, a municipal corporation, Judy Zoske, City Recorder for the City of Pendleton, and Peter H. Wells, City Attorney for the City of Pendleton, Respondents, and Umatilla County, a political subdivision of the State of Oregon, and Thomas L. Groat, Umatilla County Clerk, Defendants. CV 940946; CA A88770.
• Court: Oregon Court of Appeals

Page 1044

929 P.2d 1044

145 Or.App. 236

STATE ex rel. PEND-AIR CITIZEN'S COMMITTEE and Vera Simonton, Appellants, v. CITY OF PENDLETON, a municipal corporation, Judy Zoske, City Recorder for the City of Pendleton, and Peter H Wells, City Attorney for the City of Pendleton, Respondents and Umatilla County, a political subdivision of the State of Oregon, and Thomas L. Groat, Umatilla County Clerk, Defendants.

CV 940946; CA A88770.

Court of Appeals of Oregon.

Argued and Submitted June 28, 1996.

Decided Dec. 11, 1996.

Review Denied March 4, 1997.

J. Haggerty-Foster, Pendleton, argued the cause and filed the briefs, for appellants.

Peter H. Wells, argued the cause and filed the brief, for respondents.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

Relators, prevailing parties in a mandamus action, appeal, assigning error to the trial court's denial of attorney fees. Relators obtained a peremptory writ of mandamus directing the City of Pendleton to place an initiative on the ballot. We review the court's denial of attorney fees for abuse of discretion, ORS 34.210(2), and affirm.

In 1994, the City of Pendleton proposed to locate a solid waste transfer facility in a residential area. Relator, Pend-Air Citizen's Committee, is an organization that was formed to contest the siting of the proposed facility. Relator Vera Simonton, who was Pend-Air's president, owned property adjacent to the proposed site.

In June 1994, Simonton, as Pend-Air's president, presented defendant Wells, Pendleton's City Attorney, with a proposed form of an initiative petition. The proposed initiative would amend the City of Pendleton's charter to provide:

"Notwithstanding any other provision of the city charter or any city ordinance to the contrary, no solid waste transfer station shall be sited, constructed, or operated within 1,000 feet of an existing residential structure or residential zone without a vote of the people approving the facility."

Wells told Simonton that the form of the petition appeared to be correct but that the city would not certify the initiative for the ballot until the requisite number of signatures had been gathered and verified. Wells also gave Simonton oral and written directions concerning the city's initiative petition procedure and informed her that she should use the petition form included in the Secretary of State's City Elections Manual.

Relators subsequently gathered signatures for the initiative petition. As part of that effort, Simonton paid some of the people who gathered signatures. Throughout the signature-gathering process, relators followed Wells's instructions, and, particularly, used the form of initiative petition included in the Secretary of State's 1994 City Election Manual. That form did not identify the name or address of the chief petitioner or give notice that the person obtaining signatures was being paid.

On August 22, 1994, the Umatilla County Clerk certified that 1,290 electors, whose signatures had been verified, had signed the petition, which exceeded the 1,070 valid signatures required to submit the measure to the voters. Nevertheless, the city refused to place the proposed initiative on the November 1994 ballot because the petition's signature sheets did not identify the name and address of the chief petitioner or include a notice that the person gathering the signatures was being paid. ¹ The city asserted that those deficiencies violated former ORS 250.265(2) and (5) and rendered the signatures invalid. ²

On September 6, 1994, relators filed this action, seeking an alternative writ of mandamus to compel defendants to place the proposed initiative on the November 1994 ballot. Without dwelling unduly on the procedural or substantive complexities of the dispute, the issues appear to have reduced to two: (1) What was the proper relationship between Pendleton City Ordinance # 3488, which prescribes procedures for initiative petitions to enact ordinances or amendments to the city charter, and ORS 250.265 to ORS 250.346, prescribing procedures for initiatives on municipal measures? (2) If ORS 250.265 et seq. controls, did relators' violations of former ORS 260.265(2), (5) preclude placing the matter on the ballot--or did the city have a legal duty, despite those violations, to submit the proposed initiative to the electorate?

The parties' cross-motions for summary judgment ultimately were heard on December 5, 1994. The court issued the writ, directing defendants to place the initiative on the ballot on the next appropriate election date, March 28, 1995:

"[T]he court is going to rule in favor of the relators * * * and direct that the matter be placed before the electorate.

"The court does so with some reluctance because I think that, one, that the law should have been complied with but again, the legislature [has not] given any indication as to what should be done if they don't follow the provisions of the law. It makes a lot of sense to me that all of the petitions that were circulated should have had that notice on them but * * * the court feels that, given all the circumstances in this case, that the matter should be allowed to go to the people."

Defendants do not dispute the correctness of that ruling.

Although it issued the writ, the court denied relators' request for attorney fees. In their operative second amended alternative writ of mandamus, relators pleaded that they were entitled to attorney fees "pursuant to ORS 34.210 and ORCP 68." ³ In their briefing and arguments that preceded the issuance of the writ, the parties do not appear to have addressed relators' asserted entitlement to attorney fees. Immediately after rendering its oral opinion that relators were entitled to prevail on the merits, the court continued:

"In this matter, the court's not going to allow attorney fees on either side. I think if this were a case where we were dealing with some black and white, I might impose attorney fees but this is such a gray area that I don't believe that they're warranted in this case. As I say, I appreciate the effort by both counsel. It's been a tremendous amount of effort. I can tell by the work that you've done and I do appreciate it but I believe that, given the circumstances that prevail, the court is not going to allow attorney fees."

Relators subsequently moved for reconsideration of the court's denial of fees. In so doing, they argued that they are entitled to fees under ORS 34.210(2) and under the rationale of Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975), and Umrein v. Heimbigner, 53 Or.App. 871, 632 P.2d 1367 (1981). It is not clear from relators' memorandum whether they were invoking ORS 34.210(2) and the Deras/Umrein line of cases as separate and distinct sources of entitlement to attorney fees or whether, in their view, the latter offered guidance as to the proper allowance of fees under the former. Although defendants opposed reconsideration, ⁴ the court subsequently heard oral argument on the motion to reconsider and reaffirmed its denial of attorney fees. ⁵

On March 28, 1995, the electors of the City of Pendleton approved the proposed initiative.

On appeal, relators unambiguously assert that the Deras/ Umrein analysis and ORS 34.210(2) describe independent and distinct bases of entitlement to attorney fees. Relators further assert that they are entitled to recovery on either of those bases, which relators style, respectively, as "equitable entitlement" and "statutory entitlement." Relators acknowledge that the trial court's denial of fees is reviewed under an abuse of discretion standard but contend that, in this context, the court's discretion is narrowly cabined and that, in these circumstances, the court's exercised discretion impermissibly exceeded those confines. Before addressing the particulars of relators' arguments, a brief review of the asserted sources of entitlement is useful.

In Deras, the plaintiff, a candidate for state representative, sought and obtained a declaratory judgment that certain restrictions on campaign spending were unconstitutional. Although the plaintiff prevailed on the merits, the trial court refused to award him attorney fees. The Supreme Court reversed and directed the trial court to award the plaintiff his reasonable attorney fees. In so doing, the court acknowledged the general principle that a prevailing party is not entitled to fees "absent authorization of statute or contract." 272 Or. at 66, 535 P.2d 541. Nevertheless:

"[C]ourts of equity have the inherent power to award attorney's fees. This power frequently has been exercised in cases where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as his own. We recognized this equitable exception to the general rule in Gilbert v. Hoisting & Port. Engrs., 237 Or. 130, 384 P.2d 136, 390 P.2d 320, cert. denied 376 U.S. 963, 84 S.Ct. 1125, 11 L.Ed.2d 981 (1964), a substantially similar case to the one at hand. In Gilbert, the plaintiffs sued the union of which they were members to require fair and democratic elections. We allowed the plaintiffs attorney's fees at both trial and appellate levels[.] [ ⁶

"It is beyond dispute that the interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution is even stronger than that present in Gilbert. Correspondingly, plaintiff in this case, at least as much as the plaintiffs in Gilbert, should not be required to bear the entire cost of this litigation the benefits of which flow equally to all members of the public." Id. at 66, 535 P.2d 541 (footnotes omitted). ⁷

In Umrein, members of a citizens group sought a declaratory judgment that they were entitled to have certain initiatives that limited the City of Beaverton's urban renewal powers submitted to the electorate. The plaintiffs also asserted an entitlement to attorney fees under Deras's rationale. The trial...