MARQUAM INVESTMENT CORPORATION v. BEERS, 51 Or. App. 819 (1981)

627 P.2d 491

No. A 7709 12615, CA 15690Oregon Court of Appeals.On respondent’s petition for attorney fees filed August 25 1981 On appellant’s object to petition for attorney fees filed August 29, 1981 Appellant’s objection to costs filed August 29, 1980
Petition denied April 27, 1981

Appeal from Circuit Court, Multnomah County.

Pat Dooley, Judge.

Michael H. Marcus, Legal Aid Service, Portland, for the petition.

Charles C. Erwin, Portland, contra.

Before Gillette, Presiding Judge, Roberts, Judge, and Campbell, Judge Pro Tempore.

Page 820

GILLETTE, P. J.

Petition denied.

Roberts, J., dissenting.

Page 821

GILLETTE, P. J.

Defendant Charlene Myers has petitioned this court for an award of attorney fees and costs. She is awarded her costs.[1] For the reasons that follow, her petition for attorney fees is denied.

Defendant was one of the prevailing parties in Marquam Investment Corporation v. Beers, 47 Or. App. 711, 615 P.2d 1064
(1980), rev den 290 Or. 249 (1981), in which we sustained Oregon’s Residential Landlord and Tenant Act, ORS 91.700–91.895, against a variety of constitutional attacks. She seeks attorney fees on the authority of Deras v. Myers, 272 Or. 47, 66, 535 P.2d 541 (1975), where it was held that a court of equity may, in its discretion, award attorney fees on appeal where a party “succeeds in protecting the rights of others as much as his own.” See also Williams v. City of Astoria, 43 Or. App. 745, 753, 604 P.2d 411 (1979).

This court has recently had a number of occasions, under a variety of circumstances, to address the propriety of awarding attorney fees to prevailing parties. See, e.g., West v. French, 51 Or. App. 143, 625 P.2d 144 (1981); Davidson v. Employment Div., 51 Or. App. 219, 625 P.2d 162 (1981); Brown v. Adult Family Services Div., 51 Or. App. 213, 625 P.2d 160 (1981). None of these cases, however, is in point here.

This case was a declaratory judgment action challenging, on constitutional grounds, a statutory scheme. The Attorney General, under his statutory prerogative, appeared in this court to defend the Act. See ORS 180.060(1)(a) and (c). Under such circumstances, defendant’s appearance, although she was nominally a party, was actually more like that of a part amicus curiae: her brief was helpful, but her participation was unnecessary for the full defense and vindication of the Act. She was not, therefore, “protecting the rights of others as much as [her] own.” Deras v. Myers, supra.

Page 822

In view of the nature of defendant’s participation in this case, which we find to be factually distinguishable in a significant way from that of the prevailing party i Deras, we decline, as a matter of discretion, to award her attorney fees.[2]

Petition denied.

ROBERTS, J., dissenting.

I dissent because I do not agree with the majority that defendant’s appearance was “more like that of a part amicus curiae” or that “[s]he did not * * * ‘[succeed] in protecting the rights of others as much as [her] own.’ ” The Attorney General’s appearance was to defend the constitutionality of the act, not to protect the rights of the defendant. Defendant had that responsibility and in assuming that responsibility she “succeeded in protecting the rights of others * * *.” Plaintiff could have tested the constitutionality of the statute without naming Myers as defendant. It did not do so; it should be required to pay Myers’ attorney fees.

I respectfully dissent.

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