Armatta v. Kitzhaber

*294DURHAM, J.,

concurring.

I concur in the majority’s disposition of the trial court’s judgment, and write separately to explain the basis for my concurrence with the award of attorney fees.

In Gilbert v. Hoisting and Port. Engrs., 237 Or 130, 138, 384 P2d 136, 390 P2d 320 (1964), and Deras v. Myers, 272 Or 47, 66-67, 535 P2d 541 (1975), this court relied on the inherent power that courts of equity have used throughout their history to award attorney fees “in cases where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as his own.” Deras, 272 Or at 66. Those cases support the principle that, if a plaintiff brings an action that seeks relief from official misconduct or errors that violate the plaintiffs important legal rights, and the plaintiffs action succeeds in protecting the rights of others as much as his own, the court, exercising its inherent equitable power, may award attorney fees, in addition to other appropriate relief, to the successful plaintiff. That equitable principle rests on an important assumption about litigation of this kind. That is, if the plaintiffs action actually results in the protection of the legal rights of a broader segment of society, and the defendant’s choice to defend an unconstitutional law or official action brought about the necessity of incurring the expense of legal services to vindicate the plaintiffs rights in court, it is consistent with judicial notions of fairness to require the defendant, not the plaintiff, to pay the reasonable expenses of bringing the action, including attorney fees.

Congress has enacted fee-shifting legislation governing analogous litigation that vindicates federal constitutional and statutory rights. 42 USC § 1988. Unlike the rule discussed in Gilbert and Deras, the federal statute does not depend on a showing that the action protected the rights of persons other than the plaintiff or that an award of attorney fees is consistent with equitable principles.

The Oregon Legislature has not enacted a statute that addresses the recovery of prevailing party attorney fees in circumstances similar to those presented in this case. This is a potential subject for state legislation. In the absence of *295legislation, Oregon courts will continue to administer judge-made rules on this subject that reflect the equitable principles that underlie Gilbert and Deras.

Some of those judge-made rules bear closer scrutiny to insure that they, in fact, accomplish equity. For example, in Samuel v. Frohnmayer, 308 Or 362, 779 P2d 1028 (1989), the issue was:

“whether an award of attorney fees to the winning party for expenses incurred in pursuing the declaratory judgment may be ‘proper’ further relief under the statute, when only the statute itself is relied upon as the source of the court’s authority to make the award.” 308 Or at 364.

The court concluded that a specific statute, ORS 182.090, not a more general statute, ORS 28.080, or Deras, governed the award of attorney fees in the circumstances, and that the plaintiff had not pleaded or proven that he was entitled to an award of attorney fees under the governing statute. In discussing why Deras was not controlling, the court said:

“The award [in Deras] was based on the inherent power of a court sitting in equity as well as the fact that the citizen had vindicated a right applying equally to all citizens, without any monetary or other gain peculiar to himself. [Deras,] 272 Or at 65-66. See also Cook v. Employment Division, 293 Or 398, 401, 649 P2d 594 (1982). Samuel’s position is not analogous. He is not a volunteer (at least in the Deras sense); he is vindicating only an interest of his own. Even if this case were one in equity, it would not be an appropriate one in which to make an award based on Deras v. Myers.” 308 Or at 370 (emphasis added).

That passage in Samuel is noteworthy in several respects. First, the details of the court’s description of Deras are entirely dictum. The court held only that a statute, ORS 182.090, was the sole source of authority to award attorney fees in the circumstances and that the plaintiff was ineligible under that statute. The court had no reason to discuss whether Deras stated a correct rule of law or to alter the rule stated in Deras.

Second, the Samuel court’s summary of Deras is not accurate. The passage emphasized in the quotation stated above appears in no form in Deras. If the Samuel court meant *296to suggest that being a “volunteer” under Deras meant that the plaintiff cannot seek any monetary or other relief peculiar to himself, that reading of Deras is incorrect. The passage in Deras that the Samuel court cited states:

“[Plaintiff] correctly points out that courts 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. * * *
“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.” 272 Or at 66.

That discussion demonstrates that Deras does not support the statement in Samuel that the plaintiff must seek to vindicate the rights of all citizens without any monetary or other gain peculiar to himself.

Neither is that statement supported by the other case authority cited in Samuel. Cook v. Employment Division states only that, in deciding Deras and Gilbert, the court relied on the inherent power of a court of equity. Cook, 293 Or at 401. Cook does not mention a requirement that the plaintiff seek no monetary or other gain peculiar to himself, and does not suggest that Deras or Gilbert recognized such a requirement.

Aside from the absence of any legal support for such a purported requirement, this court has never explained why a court of equity would impose such a precondition to the recovery of attorney fees. The defendants in Gilbert and Deras enforced unconstitutional or unlawful legal schemes that harmed the plaintiffs’ rights. If those defendants, acting pursuant to the same unlawful schemes, had committed even more serious transgressions against the plaintiffs, such as, for example, depriving them of their property, that fact would enhance, not diminish, the plaintiffs’ equities in seeking attorney fees under Gilbert and Deras. In my view, equitable *297principles, not the dictum in Samuel, determines a prevailing party’s entitlement to attorney fees under Gilbert and Deras A party never loses the right to any form of equitable remedy merely by seeking complete relief in the complaint. Neither should a request for complete relief, including relief that is peculiar to the requesting party, disqualify the party from an award of attorney fees under Gilbert and Deras. Such an impediment finds no support in traditional equitable principles.

Unfortunately, three later cases have repeated without analysis the dictum in Samuel suggesting that Deras required the prevailing plaintiff to seek vindication of important constitutional rights without any gain peculiar to himself. Vannatta v. Keisling, 324 Or 514, 548-49, 931 P2d 770 (1997);1 Dennehy v. City of Gresham, 314 Or 600, 602, 841 P2d 633 (1992); Dennehy v. Dept. of Rev., 308 Or 423, 427-28, 781 P2d 346 (1989). That erroneous description of the law derived from Gilbert and Deras does not acquire legitimacy by reason of its bare repetition in those cases.

The court, at its earliest opportunity, should correct its erroneous descriptions of criteria for a recovery of attorney fees under Gilbert and Deras. The error probably affects the relief sought in many cases that never reach this court. For example, parties may forego requesting relief to which they are entitled simply to avoid the argument that they are disqualified from seeking attorney fees because they have sought to vindicate an individual interest that is different from the public’s potential interest in the litigation. Parties have no ability to recast their claims so that they can recover *298all the relief to which they are entitled individually and still recover the attorney fees to which they are éntitled under Gilbert and Deras. The unfairness of forcing a litigant to make that sort of election is obvious. Because that error is rooted in dictum in an opinion of this court, it is less likely that the legislature will adopt a statute that corrects it. Accordingly, the court must act.

I join the majority’s award of attorney fees here because, in accordance with the principle of Gilbert and Deras, we must acknowledge that plaintiffs’ litigation has succeeded in protecting the constitutional rights of other citizens as much as their own. The determination of plaintiffs’ entitlement to attorney fees in this context is controlled by the application of traditional equitable principles. In describing their standing to bring this action, plaintiffs identify several diverse legal interests that they do not share with the general public. The majority concludes that those interests are not sufficient to disqualify plaintiffs from recovering their attorney fees.

I would apply a somewhat different analysis. In my view, although plaintiffs’ interests in bringing this litigation do not mirror the interests of the general public in a favorable outcome, plaintiffs do share with the general public an interest in protecting the Oregon Constitution from unlawful amendment. Plaintiffs’ litigation has succeeded in protecting the public’s interest as much as their own. Moreover, none of plaintiffs’ diverse interests cited by defendants invokes any equitable principle that would render an award of attorney fees unfair or inequitable. Accordingly, in reliance on Gilbert and Deras, I join the majority’s award of prevailing party attorney fees to plaintiffs in this case.

I concur.

Vannatta may be read to have introduced yet another erroneous impediment to an attorney fee award in cases controlled by Gilbert and Deras. In denying an award of attorney fees, the court in Vannatta said: “The overall benefit to the public is only an ancillary result in this case.” 324 Or at 549. Nothing in Gilbert or Deras suggests that a prevailing party who otherwise qualifies for an award of attorney fees will lose that entitlement if the benefit to the public is merely an “ancillary” result of the litigation. The plaintiffs in Gilbert and Deras sought to vindicate their own legal interests in bringing their actions. The benefit to the broader public from their success was only an ancillary result of the litigation. Despite its ancillary character, that public benefit was sufficient to justify an award of attorney fees to the successful plaintiffs. I do not read Vannatta to disqualify an otherwise eligible party from recovering attorney fees under Gilbert and Deras merely because that party aims primarily to protect personal, rather than the public’s, rights from disparagement.