
FILED:  April 8, 2004
IN THE SUPREME COURT OF THE STATE OF OREGON
LEAGUE OF OREGON CITIES,
BENTON COUNTY, CITY OF BEAVERTON,
CITY OF EUGENE, JUNCTION CITY,
CITY OF VENETA, BEV STEIN, VERA KATZ,
MULTNOMAH COUNTY, CITY OF PORTLAND,
and WASHINGTON COUNTY,
Respondents,
v.
STATE OF OREGON,
JOHN KITZHABER, M.D.,
and BILL BRADBURY,
Appellants,
and
STUART MILLER,
Intervenor.
AUDREY McCALL,
HECTOR MacPHERSON, MICHAEL E. SWAIM,
JAMES LEWIS, and  MARK TIPPERMAN,
Respondents,
v.
JOHN KITZHABER, M.D.,
BILL BRADBURY,
and THE STATE OF OREGON
and its political subdivisions,
Appellants,
and
STUART MILLER,
Intervenor.
(CC 00C-20156, 00C-19871; CA A113789, A113790;
SC S48450 (Control), S48451)
On petition for reconsideration of order denying attorney
fees to respondents McCall, MacPherson, Swaim, Lewis, and
Tipperman, filed February 18, 2004.  334 Or 645, 56 P3d 892
(2002) (decision on case on merits).
Thomas M. Christ and Thomas W. Brown, of Cosgrave Vergeer
Kester LLP, Portland, filed the petition for reconsideration of
attorney fees for respondents McCall, MacPherson, Swaim, Lewis,
and Tipperman.
No appearance contra.
Before Carson, Chief Justice, and Gillette, Durham, Riggs,
De Muniz, and Balmer, Justices.*
PER CURIAM
The petition for reconsideration is denied.
*Kistler, J., did not participate in the consideration or
decision of this case.
PER CURIAM
The plaintiff-respondents in McCall v. Kitzhaber,
S48451 (hereafter "McCall plaintiffs"), petitioned this court for
an award of attorney fees, which petition the court denied by an
equally divided court.  McCall plaintiffs now ask us to
reconsider that order.  We deny the petition for reconsideration. 
McCall plaintiffs argue that, when the court divides
equally, it should allow a petition for attorney fees.  We,
however, do not share that view.  Instead, we align ourselves
with the United States Supreme Court, which has held that an
equally divided court cannot act to grant affirmative relief. 
See Durant v. Essex Company, 74 US 107, 110, 19 L Ed 154 (1868)
("no affirmative action can be had in a cause where the judges
are equally divided in opinion as to the judgment to be rendered
or order to be made").
McCall plaintiffs also contend that an order denying by
an equally divided court is no ruling and that this court has
left the trial court without guidance.  It was not the office of
our order to give guidance to the trial court.  Again, we deem
the Supreme Court's decision in Durant instructive.  First, the
order is in fact a ruling of the court.  See id. ("The division
of opinion between the judges was the reason for the entry of
that judgment; but the reason is no part of the judgment
itself.").  Second, the order is binding on the parties even
though it is not precedent for other cases.  See id. at 113
(judgment by equally divided court "prevents the decision from
becoming an authority for other cases of like character.  But the
judgment is as conclusive and binding in every respect upon the
parties as if rendered upon the concurrence of all the judges
upon every question involved in the case.")
The petition for reconsideration is denied.
