FILED: AUGUST 5, 1999


IN THE SUPREME COURT OF THE STATE OF OREGON


SUSAN LEO and JONAH F. HYMES,


Plaintiffs-Appellants,


		v.


PHIL KEISLING, Secretary of State,

and STATE OF OREGON,


Defendants-Respondents,


		and


KEVIN MANNIX and STEPHEN DOELL,


Intervenors.


(CC 98C-17232; CA A103357; SC S45677)


	En Banc


	On appellants' petition for attorney fees and costs filed October 28, 1998.


	Submitted October 29, 1998.


	Katherine A. McDowell, ACLU Foundation of Oregon, Portland, filed the petition for
appellants.


	Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Richard D.
Wasserman, Assistant Attorney General, Salem, filed the response for respondents. 


	No appearance by intervenors.


	DURHAM, J.


	The petition for attorney fees is denied.  The petition for
costs is allowed in the amount of $246.50. 



	DURHAM, J.

	This matter is before the court on plaintiffs' petition for attorney fees and costs. 
Plaintiffs do not seek an award of attorney fees against intervenors.  The procedural history of the
case and the court's decision on the merits appear in Leo v. Keisling, 327 Or 556, 964 P2d 1023
(1998).  We allow costs in the sum of $246.50 and deny the petition for attorney fees.

	In their complaint, plaintiffs challenged the Secretary of State's determination that
a proposed initiative measure qualified for placement on the ballot.  Plaintiffs asserted that the
Secretary of State's action violated OAR 165-014-0030, ORS 250.105, and Article IV, section
1(2)(b), of the Oregon Constitution.  Plaintiffs also argued that OAR 165-014-0030 and  ORS
250.105 conflicted with that provision of the Oregon Constitution and that the Secretary of State,
in applying the statute and rule, had accomplished a result that the Oregon Constitution prohibits.

	The circuit court entered judgment for defendants.  Plaintiffs appealed.  The Court
of Appeals certified the appeal to this court, and this court accepted the certification.  See ORS
19.405 (describing certification procedure).

	Following the decisional method described in Planned Parenthood Assn. v. Dept.
of Human Res., 297 Or 562, 564, 687 P2d 785 (1984), this court determined that it could decide
plaintiffs' claim on a subconstitutional level.  The court held that, in qualifying the proposed
initiative measure for the ballot, the Secretary of State had relied on OAR 165-014-0030, which
the Secretary of State had adopted under ORS 250.105(4).  The court concluded, however, that
the rule violated that statute and that the Secretary of State's action in qualifying the measure was
not authorized by law.  Accordingly, the court reversed the judgment and remanded the case for
further proceedings.

	Plaintiffs now seek costs on appeal in the sum of $246.50.  Defendants do not
object.  We award costs in that sum.

	Plaintiffs also seek attorney fees in the sum of $19,918, under several statutes and
the court's inherent equitable authority to award attorney fees.  See Armatta v. Kitzhaber, 327 Or
250, 286-89, 959 P2d 49 (1998), and Deras v. Myers, 272 Or 47, 65-67, 535 P2d 541 (1975)
(each discussing court's equitable authority to award attorney fees to a prevailing party as part of
relief).  Defendants concede that plaintiffs are prevailing parties, but assert that plaintiffs are not
entitled to recover attorney fees or, in the alternative,  that the amount sought is excessive.  

	We first consider our authority to award attorney fees in this case.  We understand
plaintiffs to argue that ORS 246.910 authorizes an award of fees here because it incorporates the
authorization to award attorney fees stated in ORS 183.497 and also incorporates the court's
inherent equitable authority to award attorney fees.

	We turn to the text and context of the pertinent statutes.  ORS 246.910 provides,
in part:

		"(1) A person adversely affected by any act or
failure to act by the Secretary of State * * * under
any election law, or by any order, rule, directive or
instruction made by the Secretary of State * * * may
appeal therefrom to the circuit court * * * .


		" * * * * *


		"(4)  The remedy provided in this section is
cumulative and does not exclude any other remedy
against any act or failure to act by the Secretary of
State * * * under any election law or against any
order, rule, directive or instruction made by the
Secretary of State * * * under any election law."


(Emphasis added.)  ORS 183.497 provides, in part:


		"(1) In a judicial proceeding designated under
subsection (2) of this section the court:


		"(a) May, in its discretion, allow a petitioner
reasonable attorney fees and costs if the court finds
in favor of the petitioner.


		"(b) Shall allow a petitioner reasonable attorney
fees and costs 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; but the
court may withhold all or part of the attorney fees
from any allowance to a petitioner if the court finds
that the agency has proved that its action was
substantially justified or that special circumstances
exist that make the allowance of all or part of the
attorney fees unjust.

		"(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[.]"

(Emphasis added.)  		

	ORS 246.910 contains no express authorization to award
attorney fees in a statutory appeal proceeding.  Plaintiffs base
their argument on the legislature's declaration in subsection (4)
that the appeal remedy is "cumulative and does not exclude any
other remedy * * *."  That passage means that the legislature's
adoption of the appeal remedy does not prevent the court, in an
action under ORS 246.910, from awarding plaintiffs other judicial
remedies that other sources of law may authorize for relief
against improper actions under any election law.  However, in
asserting that statutory authorization exists to award attorney
fees, plaintiffs must point to a legislative enactment of that
authorization.  ORS 246.910(4) by itself does not meet that
description.  

	For the same reason, we also reject plaintiffs'
contention that ORS 246.910(4) incorporates this court's inherent 
equitable authority, illustrated in Armatta and Deras, to award
attorney fees in certain circumstances.  By making the appeal
remedy cumulative and non-exclusive, ORS 246.910(4) preserves
plaintiffs' opportunity to seek other remedies under other
sources of law, but does not provide or incorporate those
remedies, whatever they may be, as a part of the appeal remedy
under ORS 246.910(4).  We address below the separate question
whether plaintiffs are entitled to attorney fees under Deras and
Armatta. 

	Plaintiffs point out that, in Crumpton v. Roberts, 310
Or 381, 389-90, 798 P2d 1100 (1990), this court decided to apply
the 60-day time limit under ORS 183.484(2) to an action
challenging a decision of the Secretary of State under an
election law.  Plaintiffs argue that, under the reasoning in
Crumpton, this court should import into ORS 246.910 the attorney
fee authorization in ORS 183.497(1), which is a related provision
of the Administrative Procedures Act, ORS 183.310 et seq. (APA).

	This court has recognized that a decision of the
Secretary of State under an election law may constitute an order
under the APA.  See Ellis v. Roberts, 302 Or 6, 18, 725 P2d 886
(1986) (concluding that the Secretary of State's decision, that a
proposed measure contained a single subject, was an order in
other than a contested case).  However, the potential
applicability of the APA here does not assist plaintiffs in their
effort to identify a statutory authorization for recovery of
attorney fees.  ORS 183.497(2) provides that the authorization to
award attorney fees in ORS 183.497(1) applies only in
administrative or judicial proceedings "against a state agency,
as defined in ORS 291.002 * * *."  ORS 291.002 provides:


		"As used in ORS 291.001 to 291.034, 291.201 to
291.222, 291.232 to 291.260, 291.307 and 291.990,
unless the context requires otherwise:


		"* * * * *


		"(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."  

(Emphasis added.)

	Defendant State of Oregon is not one of the officers or
governmental entities listed in ORS 291.002(7).  Moreover, the
Secretary of State, the only other defendant, was performing a
duty of his constitutional office in determining that the
proposed initiative measure here was supported by sufficient
signatures and qualified for placement on the ballot.  Article
IV, section 1, of the Oregon Constitution, provides, in part:


		"(4)(a) Petitions or orders for the initiative or
referendum shall be filed with the Secretary of State. 
The Legislative Assembly shall provide by law for the
manner in which the Secretary of State shall determine
whether a petition contains the required number of
signatures of qualified voters.  The Secretary of State
shall complete the verification process within the 15-day period after the last day on which the petition may
be filed * * *."

Consequently, the Secretary of State falls outside the definition
of "state agency" in ORS 291.002(7).  Because plaintiffs did not
proceed against a state agency as defined in ORS 291.002(7), ORS
183.497(1) does not apply to plaintiffs' action.

	From the foregoing discussion, we conclude that
plaintiffs have failed to identify a statutory authorization for
an award of attorney fees.  However, as this court stated in
Gilbert v. Hoisting and Port. Engrs., 237 Or 130, 137, 384 P2d
136, on reh'g 390 P2d 320 (1963), "[t]he authority of a court of
equity to award attorney fees is not derived solely from
statute."  We proceed next to consider whether, by reason of
their successful litigation, plaintiffs qualify for an award of
attorney fees under this court's inherent equitable authority.

	Several decisions of this court hold that courts of
equity, including this court, have inherent power to award
attorney fees to a party under appropriate circumstances. 
Armatta, 327 Or at 287 (courts of equity have inherent power to
award attorney fees); Vanatta v. Keisling, 324 Or 514, 548-49,
931 P2d 770 (1997) (recognizing court's inherent equitable power
to award attorney fees, but declining to exercise that power
given  circumstances of the case); Deras, 272 Or at 66 (awarding
attorney fees, under court's inherent equitable power, because
the plaintiff's action protected the "interest of the public in
preservation of the individual liberties guaranteed against
governmental infringement of the constitution"); Gilbert 237 Or
at 137-38 (awarding attorney fees, under court's inherent
equitable authority, because the plaintiff's action vindicated
interest of union members and public in internal union
democracy).  

	The parties disagree, for a variety of reasons, about
whether this is an appropriate case in which to exercise that
inherent equitable authority.  We address only one of defendants'
contentions, because it is dispositive of plaintiffs' entitlement
to recover attorney fees under that authority.

	In their original complaint, plaintiffs challenged
defendants' use of a margin of error and certain statistical
sampling techniques to determine whether sufficient valid
signatures supported a proposed initiative.  They alleged that
those actions violated OAR 165-014-0030, ORS 250.105, and Article
IV, section 1(2)(b), of the Oregon Constitution.  Subsequently,
the parties stipulated that "[t]here is only one issue" before
the court, i.e., whether defendants' use of a margin of error to
qualify an initiative petition for the ballot violated Article
IV, section 1(2)(b), of the Oregon Constitution.  The stipulation
also stated: "All additional or different contentions in
previously-filed pleadings or other documents are withdrawn." 
Consequently, the parties confined their briefing and argument to
the constitutional challenge.

	This court did not reach or decide the constitutional
issue that the parties presented.  Leo, 327 Or at 560.  Instead,
under the decisional methodology specified in Planned Parenthood
Assn., 297 Or at 564, the court first examined subconstitutional
bases for disposition before examining the constitutional claim. 
As Planned Parenthood explained, that approach is required to
avoid a premature and unnecessary determination of constitutional
limits on a governmental official's authority to act when other
limits on that authority in pertinent rules or statutes may
resolve the underlying claim.  Id. at 565.  As noted above, this
court concluded that the Secretary of State's use of the
"acceptance/rejection limit" in OAR 165-014-0030 led him to
conclude that the petition contained the required number of
signatures, even though he could not verify that conclusion as
required by ORS 250.105(4).  Leo, 327 Or at 566.  Plaintiffs
prevailed on that subconstitutional rationale.

	Due to the parties' stipulation, plaintiffs gave no
attention in their briefing and argument to the statute and rule
on which the court's ultimate disposition turned.  As matters
turned out, that approach needlessly sought to resolve the
parties' dispute on constitutional grounds contrary to the
sequential methodology that this court has established.  See
Planned Parenthood.

	Defendants contend that, because plaintiffs focused
exclusively on a constitutional issue that this court did not
address, "plaintiffs' work failed to contribute to the resolution
of this case."  We agree.  The court was required to address and
decide important subconstitutional issues, as required by Planned
Parenthood, with minimal assistance from either party.

	Consequently, assuming without deciding that this case
involves the proper circumstances in which the court would
exercise its inherent equitable authority to award fees, we would
not do so here for the reason described above.  In the three
cases on which plaintiffs rely most heavily, Armatta, Deras, and
Gilbert, the successful parties' legal advocacy meaningfully
contributed to the court's ultimate decision in their favor.  We
cannot reach the same conclusion here.  In these circumstances,
we conclude that it would not be equitable, despite plaintiffs'
ultimate success, to shift all or part of the cost of plaintiffs'
representation to defendants.  Accordingly, the court denies
plaintiffs' petition for attorney fees.

	The petition for attorney fees is denied.  The petition
for costs is allowed in the amount of $246.50.







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