Novick/Crew v. Myers

RIGGS, J.,

concurring in part and dissenting in part.

I concur with the majority’s rejection of the arguments for modification submitted by petitioner Crew. As to the majority’s rejection of petitioner Novick’s arguments, I respectfully dissent. Contrary to the view expressed in the majority opinion with respect to the Novick petition, *581the result statements do not comply substantially with the requirements of ORS 250.035(2)(b) and (c). Both the Attorney General and the majority tiptoe by and otherwise ignore the elephant in the living room. Nor do I believe that their reasoning comports with this court’s holding in Novick v. Myers, 330 Or 351, 7 P3d 518 (2000). I cannot ignore the obvious and would, therefore, refer the ballot title to the Attorney General for modification.

The clear goal of this proposed measure is to establish an unequal, two-tiered system in which defendants may spend unlimited amounts for attorneys in personal injury and wrongful death cases, but plaintiffs may not. In my view, that two-tiered system is the overriding result and most significant outcome if this proposed measure was enacted.

Because the proposed measure is silent regarding any effect on defendants’ attorney fees, the majority seems to believe that the result statements may simply mimic that silence. Yet a result statement must reasonably inform and alert voters about the most significant impacts of a proposed law, not disguise them. Novick, 330 Or at 357; ORS 250.035(2)(b). The majority defines a “result” as that which is “brought about by calculation.” If so, then a result statement should disclose that which is “brought about.” Because this ballot title proposes an inequitable system that favors one side in civil litigation, the result statements must disclose that inequity.

Contrary to the majority’s assertion, this court’s decision in Novick is consistent with this view. The ballot title in Novick proposed a similarly discriminatory measure. The result statement failed to reveal that proposed measure’s discriminatory impact because it failed to identify with specificity against whom the discriminatory application would operate. Novick, 330 Or at 355. This court’s holding in Novick requires that voters be informed clearly when a proposed measure discriminates according to status. Id. at 357. Just as ambiguous terms might fail to inform Oregon’s voters in a meaningful way, so does the nondisclosure of critical terms that effectively hide the ball.

The result statement for a “no” vote equally must be clear and, here, there is a requirement of parallelism; ORS 250.035(3) requires “no” vote result statements to contain *582wording that parallels the “yes” vote result statement as much as possible. Because I would require revision of the “yes” vote result statement, the “no” vote statement would require similar revision to maintain the required parallelism.

Furthermore, the most accurate and least misleading statement regarding the current state of the law is not that there are “no set monetary limitations on plaintiff’s attorney fees” but that there are none imposed on either plaintiffs’ or defendants’ attorney fees. Wording to that effect should appear in the “no” vote result statement.3

In sum, I would refer the ballot title to the Attorney General for modification of the “yes” and “no” vote result statements.

*583Appendix

AN ACT

Relating to attorney fees; creating new provisions; amending ORS 20.340.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 20.340 is amended to read:

(1) Except as provided in Section 3 of this 2006 Act, [Z]in any civil action arising out of bodily injury, death or property damage, including claims for emotional injury or distress, loss of care, comfort, companionship and society, and loss of consortium, if an attorney for a plaintiff in respect to any civil action enters into an agreement with the plaintiff whereby the attorney receives as a fee a percentage of the amount of any settlement or judgment awarded to the plaintiff:

(a) The contingent fee agreement shall be written in plain and simple language reasonably believed to be understandable by the plaintiff.

(b) The attorney shall explain the terms and conditions of the agreement in compliance with a model explanation in plain and simple language prepared by the Oregon State Bar a reasonable time before the agreement is signed.

(c) The contingent fee agreements must contain a provision allowing the plaintiff to rescind the agreement within 24 horns after signing upon written notice to the attorney.

(2) Any contingent fee agreement entered into on or after September 26, 1987, that does not comply with the requirements of subsection (1) of this section is voidable.

SECTION 2. Section 3 of this 2006 Act is added to and made a part of ORS 20.075 to 20.340.

SECTION 3. (1) Except as provided in subsection (2) of this Section, in any civil action arising out of bodily injury or death, including claims for emotional *584injury or distress, loss of care, comfort, companionship and society, and loss of consortium, the attorney fees charged to the plaintiff, the plaintifPs legal representative or the plaintifPs estate by one or more attomey(s), whether based on a contingency fee or an hourly rate, shall not exceed a total of $100,000, exclusive of actual expenses and costs reasonably incurred, whether received by judgment, settlement, or otherwise, and regardless of the number of plaintifPs attorneys or defendants. Notwithstanding the above, in cases covered by this subsection, attomey(s) and client may negotiate attorney fees, whether based on a contingency fee or an hourly rate, in an amount not to exceed $100,000.

(2) The attorney fees limit set forth in subsection (1) of this Section shall not apply to attorney fees charged to a member of a class in any class action maintained by order of the court in accordance with ORCP 32.

SECTION 4. The amendment to ORS 20.340 by Section 1 of this 2006 Act and the new provisions set forth in Section 3 of this 2006 Act apply to all attorney fee agreements that are entered into on or after January 1,2007.

And, ideally, in the summary.