S057570, Opinion — Vannatta v. Oregon Government Ethics Comm.

117
Submitted January 21, petitioners' statement of costs and disbursements allowed
in sum of $1,053.00, petitioners' petition for attorney fees denied April 8, 2010
Fred VANNATTA
and Center To Protect Free Speech, Inc.,
an Oregon Not-For-Profit Corporation,
Plaintiffs-Appellants,
u.
OREGON GOVERNMENT ETHICS COMMISSION,
formerly known as the
Oregon Government Standards and Practices Commission;
and State of Oregon,
Defendants-Respondents.
(CC 07C20464; CAA140080; SC S057570)
228 P3d 574

118 	Vannatta v. Oregon Government Ethics Comm.
CJS, States § 328.
En Banc
On plaintiffs-appellants petition for attorney fees and
costs.*
John 	DiLorenzo, 	Jr., 	Davis 	Wright 	Tremaine 	LLP,
Portland, and Gregory A. Chaimov, Aaron K. Stuckey, and
Alan J. Galloway, filed the petition for attorney fees, state-
ment of costs and disbursements, and reply to defendant-
respondents objection to petition for attorney fees.
Anna M. Joyce, Assistant Attorney General, Salem, John
R. Kroger, Attorney General, and Jerome Lidz, Solicitor
General, filed the objection to attorney fees for Oregon
Government Ethics Commission.
DE MUNIZ, C. J.
Petitioners' statement of costs 	and disbursements is
allowed in the sum of $1,053.00. Petitioners' petition for
attorney fees is denied.
Durham, J., specially concurred and filed an opinion.
* 347 Or 449, 222P3d1077 (2009).

Cite as 348Or117 	119
DE MUNIZ, C. J.
In 	the 	underlying 	litigation, 	petitioners 	sought
declaratory and injunctive relief based on various challenges
to certain statutory restrictions on the solicitation, offering,
and receipt of gifts and entertainment by various public
officials and private persons. The trial court granted sum-
mary judgment in favor of the Oregon Government Ethics
Commission and the State of Oregon (the state). On review,
this court affirmed in part and reversed in part the trial
court's summary judgment determination and remanded the
case to the circuit court for further proceedings. Vannatta v.
Oregon Government Ethics Comm., 34 7 Or 449, 222 P3d 1077
(2009). Petitioners now seek costs on appeal and an award of
attorney fees under this court's inherent equitable power to
make such awards, as described in Deras v. Myers, 272 Or47,
65-66, 535 P2d 541 (1975). For the reasons that follow, we
deny petitioners' attorney fees claim and grant petitioners'
request for costs.
In this court, petitioners claimed that the statutory
gift restrictions and limits on entertainment expenses in
ORS 244.025(1) to (4) and ORS 244.042 violated Article I, sec-
tions 8 and 26, of the Oregon Constitution and the First
Amendment to the United States Constitution. This court
held that the parts of ORS 244.025(1) to (4) and ORS 244.042
that restrict the receipt of gifts and payment of expenses for
entertainment did not violate the constitutional provisions
relied on by petitioners. However, this court also held that
the statutory restriction on offering gifts and payment of
entertainment expenses violated petitioners' free expression
rights guaranteed under Article I, section 8, of the Oregon
Constitution. Finally, this court determined that petitioners
lacked the requisite standing necessary under ORS 28.020 to
seek declaratory and injunctive relief from the restrictions on
the solicitation of gifts and entertainment expenses in ORS
244.025(1) to (4) and ORS 244.042.
Petitioners do not assert any statutory entitlement to
attorney fees. Instead, petitioners argue that they should be
awarded attorney fees based on this court's inherent power in
equity, a so-called Deras award. This court summarized the

120 	Vannatta v. 	Government Ethics Comm.
elements necessary to support such an award in Armatta u.
Kitzhaber, 327 Or 250, 287, 959 P2d 49 (1998):
"First, the proceeding must be one in equity. 111 Second, the
party requesting attorney fees must be the prevailing
party. Finally, in filing the action, the party requesting
attorney fees must have been seeking to vindicate an
important constitutional right applying to all citizens with-
out any gain peculiar to himself, as opposed to vindicating
individualized and different interests, or any pecuniary or
other special interest of his own aside from that shared with
the public at large."
(Internal quotation marks and citations omitted; punctua-
tion modified accordingly.)
The parties disagree whether petitioners satisfy the
second and third Deras requirements. Petitioners argue that
they prevailed in this case, noting that this court designated
petitioners as the prevailing party in this court's opinion on
the merits. Petitioners also argue that they brought this
action to vindicate an important constitutional right that
protects all citizens of this state. In support of that argument,
petitioners assert that they
"[s]ought to have available to them the ability to conduct
fact-finding trips and pay for meals and entertainment to
facilitate their political speech. [Petitioners] had no partic-
ular pecuniary interest in the outcome however. Rather,
their interests were in safeguarding the right to communi-
cate with public officials, a right shared by all Oregonians.
The relief applied not only to registered lobbyists, but any-
one who had a legislative or administrative interest in mat-
ters before public officials."
The state responds that this court reversed the trial
court on a single ground, noting that this court concluded
that petitioners were entitled to a judgment declaring the
restrictions on offering gifts unconstitutional, but otherwise
concluding that petitioners' claims 	were without merit.
Because this court also held that public officials could be
1 In Swett u. Bradbury, 335 Or 378, 389, 67 P3d 391 (2003), this court deter-
mined that the "proceeding in equity" criterion "is oflimited utility in determining
whether to award an attorney fee" and, depending on the circumstances, may be of
no utility at all. The parties here nonetheless agree that this proceeding is one in
equity, for purposes of Deras and Armatta.

Cite as 348 Or 117 	121
prohibited from receiving those gifts, the state argues that
petitioners have gained "in essence an empty power to offer
gifts or provide entertainment that cannot be received." Con-
sequently, the state argues that this court should not deem
petitioners prevailing parties for purposes of their attorney
fee claim. The state also argues that petitioners do not meet
the third Deras requirement because petitioners' interests
are individualized interests that are different from those of
most Oregonians, "who likely do not desire to offer their pub-
lic officials unlimited gifts and trips in connection with lob-
bying activities."
We agree with the parties that this is a proceeding in
equity and that the first Deras requirement is satisfied. We
therefore turn to the other requirements that must be satis-
fied, beginning with the question whether petitioners are
prevailing parties for purposes of their attorney fee request.
In Pendleton School Dist. v. State of Oregon, 34 7 Or
28, 217 P3d 175, adh'd to as modified on recons, 347 Or 344,
220 P3d 744 (2009), this court recently considered a similar
issue. 	There the petitioners-school districts and public
school students-filed an action against the state for declar-
atory and injunctive relief, alleging that the legislature had
violated 	certain 	constitutional 	requirements 	concerning
funding for public education. This court agreed with petition-
ers that the legislature had failed to fund the public school
system in accordance with the constitution. However, the
court declined to provide the petitioners with the affirmative
relief that they requested, viz., a judicial direction to the leg-
islative branch to alter its budgetary choices and increase
public school funding. The petitioners later requested attor-
ney fees. This court concluded that the petitioners satisfied
the first two Deras requirements, that is-the proceeding
was in equity and the petitioners had obtained a "substantial
modification of the judgment," and thus were the prevailing
parties under ORS 20.077(3). 2 This court stated:
ORS 20.077(3) provides
"Notwithstanding subsection (2) of this section, upon appeal of a judgment
in an action or suit in which one or more claims are asserted for which the pre-
vailing party may receive an award of attorney fees, the appellate court in its
discretion may designate as the prevailing party a party who obtains a sub-
stantial modification of the judgment."

122 	Vannatta v.
"In spite of the fact that petitioners' request for a court-
ordered appropriation had eluded them, however, the court
designated them the prevailing party in the case-a desig-
nation justified by the fact that petitioners had succeeded
in obtaining a direct statement that Article VIII, section 8,
imposed a duty on the legislature to fund primary and sec-
ondary public education at a certain level, a result that the
circuit court and the Court of Appeals had refused to give
them."
Pendleton School Dist., 347 Or at 33.
Here, although petitioners succeeded in only one of
their challenges to the gift and entertainment restriction
statutes, this court's opinion reversed the trial court judg-
ment and held that petitioners were entitled to a declaratory
judgment that the restrictions on offering gifts and entertain-
ment violated petitioners' free expression right under Article
I, section 8. Thus, we conclude that petitioners did obtain a
"substantial modification of the judgment" regardless of
whether the public officials involved ultimately can accept
the offers made. Petitioners obtained a holding from this
court that Article I, section 8, protects their right to offer gifts
to public officials. That conclusion is consistent with this
court's exercise of discretion in designating petitioners as the
prevailing party pursuant to ORS 20.077(3) in the court's
opinion issued in this case. On our further review occasioned
by this attorney fee proceeding, we determine that petition-
ers are prevailing parties in this litigation based on the sub-
stantial 	modification 	of the 	trial 	court judgment 	they
obtained in this court.
We therefore turn to the third inquiry required
under Deras-that is, whether petitioners were seeking to
vindicate an important constitutional right for all citizens
without any gain peculiar to themselves. At the outset, we
note that the mere fact that petitioners may have some indi-
vidualized interest will not necessarily disqualify them from
an award of attorney fees. For example, in Armatta, at least
some of the plaintiffs in that case were opposed to the sub-
stance of Measure 40 due to the effect that the measure had
on them individually. Nevertheless this court awarded the
plaintiffs' attorney fees, stating:

Cite as 348 Or 117 	123
"plaintiffs primarily sought to enforce the provisions of the
Oregon Constitution that relate to amendment and revision
of that document, and ultimately prevailed on their claim
that Measure 40 was not passed in compliance with the
separate-vote requirement of Article XVII, section 1. Plain-
tiffs, therefore, sought to benefit all Oregonians, because
they sought to defend the integrity of the amendment and
initiative processes. That is the type of public benefit that,
in our view, makes an award of attorney fees appropriate."
327 Or at 289.
However, where plaintiffs' self-interests are more cen-
tral, an award of Deras attorney fees is not appropriate. In
Vannatta 	u. 	Keisling, 	324 Or 514, 931 	P2d 	770 (1997)
(Vannatta I), the plaintiffs, who included potential political
candidates and a political action committee, brought a chal-
lenge to the constitutionality of a measure providing for cam-
paign spending limits. The plaintiffs prevailed on some of
their claims and requested attorney fees. This court observed:
"It is true that, to some degree, the same 'interest of the
public in preservation of the individual liberties guaran-
teed against governmental infringement of the constitu-
tion' on which this court relied in awarding attorney fees in
Deras is present in this case. * * * That, however, is not
enough. Deras was a case in which the petitioner was
attempting only to vindicate interests of the public at large.
By contrast, some of the petitioners, both individual and
institutional, who have brought the present proceeding are
not so disinterested. Their victory may benefit many mem-
bers of the public at large, but that is true of virtually any
case involving the right to speak, write, or print freely on
any subject whatever. The overall benefit to the public is
only an ancillary result in this case. Petitioners such as the
political action committee and the potential political candi-
date have individualized and different interests that they
seek to vindicate. Under such circumstances, this court
ordinarily will decline to exercise its equitable power to
award attorney fees. See Dennehy u. Dept. of Rev., 308 Or
423, 781P2d346 (1989) (explaining the foregoing rationale
for denying request for attorney fees in the context of a tax
case that affected many taxpayers). The request for an
award of attorney fees is denied."
Id. at 548-49 (citation omitted).

124 	Vannatta v. Oregon Government Ethics Comm.
Petitioners here are not disinterested parties-as
they state in their petition for attorney fees, they "sought to
have available to them the ability to conduct fact-finding
trips and pay for meals and entertainment to facilitate their
political speech." (Emphasis added.) In our view, petitioners
here have significant individualized interests 	that they
sought to vindicate, and the potential benefit to the public
was only ancillary.
Moreover, it is questionable whether petitioners' lit-
igation in this case actually has provided the public at large
with any real substantive benefit that would support an
award of Deras attorney fees. Petitioners have established
the right to offer gifts and free entertainment to public offi-
cials, but no public official may accept any such offer. In sim-
ilar circumstances, this court has determined that no award
of attorney fees was warranted. In Pendleton School Dist.,
this court observed that, although the petitioners success-
fully had obtained a judicial declaration that the legislature
had failed to fund the public school system at the appropriate
level, 	that success 	amounted only to a 	Pyrrhic victory
because the legislature lawfully could continue to provide
less than adequate funding. Consequently, this court rejected
the petitioners' request for attorney fees in that case, stating
that "the result that petitioners have obtained is not the kind
of result for the public at large that calls for the award of
attorney fees under the rationale of Deras and the cases that
have followed it." Pendleton School Dist., 347 Or at 35. Simi-
larly here, although petitioners have established the right to
offer gifts and free entertainment to public officials, this
court simultaneously upheld the statute prohibiting public
officials from accepting them. In our view, the net result of
our holding is not such a significant public benefit that the
public at large should pay petitioners' attorney fees.
Petitioners also have requested an award of costs in
the amount of $1,053.00. Petitioners have supported that
request with a statement detailing the costs and disburse-
ments incurred on appeal. The state does not object to the
request for an award for costs, and we agree that an award of
costs is warranted in this case.

Cite as 348 Or 117 	125
Petitioners' statement of costs and disbursements is
allowed in the sum of $1,053.00. Petitioners' petition for
attorney fees is denied.
DURHAM, J., specially concurring.
The 	issues 	before 	the 	court 	concern 	plaintiffs'
requests for an award of attorney fees and for costs and dis-
bursements. I join in the majority's decision to award costs
and disbursements to plaintiffs. I also agree with the major-
ity that plaintiffs' request for attorney fees should be denied.
However, I would deny plaintiffs' petition for attorney fees
for a reason that the majority does not discuss: the petition
for attorney fees does not comply with the rule that pre-
scribes the procedure for claiming attorney fees in this case.
ORAP 13.10 provides, in part:
"(1) 	This rule governs the procedure for petitioning for
attorney fees in all cases [subject to one exception not appli-
cable here].
"* * * * *
"(5)(a) 	A petition shall state the total amount of attor-
ney fees claimed and the authority relied on for claiming
the fees. The petition shall be supported by a statement of
facts showing the total amount of attorney time involved,
the amount of time devoted to each task, the reasonable-
ness of the amount of time claimed, the hourly rate at which
time is claimed, and the reasonableness of the hourly rate.
"(b) 	If a petition requests attorney fees pursuant to a
statute, the petition shall address any factors, including, as
relevant, those factors identified in ORS 20.075(1) and (2)
or ORS 20.105(1), that the court may consider in determin-
ing whether and to what extent to award attorney fees.
"(6) 	Objections to a petition shall be served and filed
within 14 days after the date the petition is filed. A reply, if
any, shall be served and filed within 14 days after the date
of service of the objections."
(Footnote omitted.)
Plaintiffs, invoking that rule, filed a petition seeking
recovery of $75,000 in attorney fees in this case. The petition

126 	Vannatta v. 	Government Ethics Comm.
correctly asserted that plaintiffs had prevailed on their chal-
lenge to several statutory restrictions on giving gifts to public
officials, candidates for office, and relatives and members of
their households in connection with lobbying activities. See
Vannatta v. Oregon Government Ethics Comm., 347 Or 449,
466-68, 222 P3d 1077 (2009) (discussing plaintiffs' successful
challenges to ORS 244.025(2), (3), and (4)(b) and (c).
The petition for attorney fees incorporated a detailed
description of the time spent on various services by plaintiffs'
lawyers in this case, producing a 	total attorney fee 	of
$113,587.24. The petition asserted that that charge would
represent "a reasonable fee assuming Plaintiffs had pre-
vailed on all of their claims." The petition also asserted,
somewhat 	inconsistently, 	that 	the 	excerpted 	time 	and
charges "represent only a portion of the total time that was
actually expended on this matter." The petition explained
how plaintiffs arrived at the requested fee of $75,000 in the
following passage:
"Because Plaintiffs prevailed on some, but not all of their
claims, Plaintiffs believe a fair fee would be $75,000.00.
This discounted amount reflects the fact that Plaintiffs pre-
vailed on one-half of their significant claims and would
have had to incur certain fees notwithstanding the number
of claims they addressed."
The petition also asserted that the proposed fee
award was "fair for additional reasons[,]" including the facts
that plaintiff Center to Protect Free Speech had raised funds
to pay for only part of the legal expenses at the trial level, but
nothing for plaintiffs' attorney fees on appeal, and that plain-
tiffs' lawyers had devoted effort to resisting the consolidation
of this case with other litigation but had not included that
time in the fee petition in this case. The petition included no
explanation of the assertion that plaintiffs had prevailed on
"one-half of their significant claims."
The state filed an objection. It asserted, among other
things, that the petition provided insufficient detail about the
listed time entries to allow the state (and, by inference, the
court) to determine how much attorney time was spent on
plaintiffs' successful claim concerning the statutory bans on
offering of gifts to public officials.

Cite as 348Or117 	127
Plaintiffs filed a reply to the state's objection. In
their 	reply, 	plaintiffs 	stated 	that 	they 	had 	"suggested
$75,000.00 as an appropriate fee based upon a 'rough justice'
discounting of 50%." The reply also stated that a "reasonable
range might also be between $57,000.00 and $75,000.00[,J"
and purported to explain how a figure within that range
"could" be justified by applying an "alternative methodology
suggested herein." The reply then set out different categories
of attorney time that, according to plaintiffs' counsel, "could
relate" to various tasks related to plaintiffs' successful claim.
I would sustain the state's objection, because the
petition 	for 	attorney 	fees 	fails 	to 	comply 	with 	ORAP
13.10(5)(a). The petition fails to show "the reasonableness of
the amount of time claimed," as required by that rule, beyond
the bare assertion that a fee of $75,000 would be, in plaintiffs'
opinion, "fair." The petition contains no statement of the
attorney time or legal services devoted to the successful claim
for which plaintiffs' requests a fee award. The practice oflist-
ing all legal services devoted to all claims, both successful
and unsuccessful, forces the court and the responding party
to speculate about the legal services that counsel might have
devoted to the claim that was successful. ORAP 13.10(5)
requires the petitioning party to identify in the petition the
time reasonably claimed on the successful claim. Plaintiffs
violated that requirement.
Under some circumstances, a petitioner may face a
difficult if not impossible task in allocating attorney time to a
particular successful claim rather than to other claims that
are not eligible for an award of attorney fees. It is clear that a
lawyer must perform some services in the course oflitigation
that are not easily divisible between successful and unsuc-
cessful claims. An example might be the preparation of a
notice of appeal. ORAP 13.10(5) requires, even in that cir-
cumstance, that the petition explain which services, in peti-
tioner's view, cannot be separated and why the amount of
attorney time claimed nevertheless is reasonable. Petitioners
do not satisfy that requirement by stating in a conclusory
manner that the fee sought is "reasonable" or "fair."
It is not the function of the reply, filed under ORAP
13.10(6), to supply the information that should have been,

128 	Vannatta v. Oregon Government Ethics Comm.
but was not, set out in the petition. That approach under-
mines the responding party's all-important opportunity to
state timely objections to the petition, thereby framing the
issues that the court must address and resolve. This court
has drawn attention in the past to the procedural signifi-
cance of the responding party's objection to a petition for
attorney fees:
"In [proceedings to recover attorney fees under ORAP
13.10(5)], we generally limit our inquiry to the objections, if
any, filed by the opposing party. See Kahn v. Canfield, 330
Or 10, 13-14, 998 P2d 651 (2000) (so stating). We so limit
our inquiry because we are 'loath to undertake a wide-
ranging, independent review * * *, inasmuch as any ques-
tions or doubts that we might have might not be shared by
the objecting party.' Dockins v. State Farm Ins. Co., 330 Or
1, 9, 997 P2d 859 (2000)."
Lehman v. Bradbury, 334 Or 579, 582, 54 P3d 591 (2002). For
the reasons identified in Lehman, a petitioner seeking attor-
ney fees cannot postpone making the required statement of
the reasonableness of the amount claimed until the filing of
the reply under ORAP 13.10(6). Petitioners' attempt to do so
here is of no avail.
Even if we were to consider the assertions that peti-
tioners presented in their reply, they do not overcome the
deficiencies regarding the petition noted above. Claims for
attorney fees supported only by a conclusory claim of "rough
justice" and fee formulas that "could" be conceived as justifi-
able are no substitute for the statements of fact required by
ORAP 13.10(5).
I would permit counsel broad latitude in presenting
the facts called for under ORAP 13.10(5). The rule does not
impose rigid requirements that only the most fastidious peti-
tioner could satisfy. The petition here, however, falls short of
substantial compliance with ORAP 13.10(5)(a). The state's
objection in that respect is well-taken.
I do not necessarily reject the majority's discussion
of substantive shortcomings regarding the petition, but nei-
ther is there a need to address them. Logic suggests that the
court should address first the state's objection that plaintiffs'
petition for attorney fees does not comply with this court's

Cite as 348 Or 117 	129
mandatory procedural requirements for a valid petition. If,
as here, the petition falls short on procedural grounds, there
is no need to address and decide the state's more complex or
controversial substantive objections to the petition.
Additionally, petitioners may be entitled to a more
in-depth discussion of the substantive problems that the
majority has identified in its opinion. For example, according
to the majority, plaintiffs have obtained only a small victory
here, because their constitutional right to offer gifts to public
officials is qualified by a valid statutory limit on the ability of
public officials to receive gifts. However, plaintiffs' litigation
succeeded in invalidating four separate statutory provisions
that, according to this court, unconstitutionally restricted
protected speech in the form of offers of gifts to public offi-
cials: ORS 244.025(2), (3), and (4)(b), (c). As a result, plain-
tiffs and other citizens will be entitled to speak on that mat-
ter to their public officials and representatives without fear of
civil enforcement, fines, or other restraints. Those are not
mere "ancillary" benefits to the public, or so it would seem.
The majority seeks to downplay plaintiffs' success.
But the majority does not demonstrate that plaintiffs' success
has resulted in a narrower right to speak than the plaintiffs
claimed. Plaintiffs won that argument completely. Rather,
the majority focuses on the audience for plaintiffs' protected
speech and, specifically, the statutory restraints that limit
the authority of the audience to respond to the speech in
question in a particular way (i.e., by accepting an offer of a
gift). But the majority's focus on statutory regulations on the
receipt of gifts by public officials-all subject to change or
repeal by the legislature-may too quickly evade the genuine
public interest that gave rise to the court's practice of award-
ing attorney fees in these cases in the first place: "the interest
of the public in preservation of the individual liberties guar-
anteed against governmental infringement of the constitu-
tion***." Deras v. Myers, 272 Or 47, 66, 535 P2d 541 (1975).
The majority cites one case, Pendleton School Dist. v.
State of Oregon, 347 Or 28, 217 P3d 175 (2009), in support of
its assertion that it is "questionable" whether this litigation
has produced a substantive benefit for the public. 348 Or at

130 	Vannatta v. 	Government Ethics Comm.
123-24. But, in Pendleton School District, the plaintiffs
argued, erroneously, that the state constitution specifically
guaranteed the higher level of school funding for which they
advocated. This court concluded that the plaintiffs' view of
the meaning of the state constitution was incorrect and that
the state constitution itself proscribed any judicial remedy to
compel the additional school funding that the plaintiffs
sought. Thus, the court's view of the "Pyrrhic" nature of the
plaintiffs' victory resulted from its conclusion that the state
constitution itself denied the remedy-increased school fund-
ing-that was the basis for the plaintiffs' claim, and that the
plaintiffs' constitutional law arguments in that regard were
incorrect.
The Pendleton School District case does not fit easily
as a precedent for the majority's action here. Plaintiffs here
were correct, not incorrect, about the validity of the statutory
restrictions on giving gifts to public officials. Additionally,
nothing in Article I, section 8, of the Oregon Constitution lim-
its plaintiffs' available remedies. On the contrary, plaintiffs
have obtained the usual legal remedy: this court invalidated
each of the four statutory provisions, cited above, prohibiting
the offering of gifts to public officials. The plaintiffs in
Pendleton School District could not claim equivalent legal
success or benefit in the public interest from their litigation
under the state constitution.
If plaintiffs have secured more than a hollow victory
for the right of free speech, that result would seemingly jus-
tify a substantively different analysis, and perhaps a differ-
ent result, by this court. But, for the reasons stated earlier,
there is, in this case, a logically compelling reason to avoid
resolving those difficult substantive questions about plain-
tiffs' petition for attorney fees: the petition does not satisfy
the requirements ofORAP 13.10(5)(a). Therefore, I concur in
the result that the majority reaches, but I do not join in its
reason for denying the petition for attorney fees.
I specially concur.