Brown v. Adult and Family Services ( 1982 )

TANZER, J.,

concurring in part and dissenting in part.

I dissent in Davidson.

The Court of Appeals, acting under the broad grant of discretion in ORS 183.495, denied attorney fees under its policy expressed in Wasco County v. AFSCME, 31 Or App 765, 571 P2d 549 (1977), rev den (1978), that an agency acting quasi-judicially rather than as a party in interest will not be assessed attorney fees if it errs.

The majority gives no indication of disagreement with the policy adopted by the Court of Appeals in Wasco County. It merely disagrees with the way the Court of Appeals applied its policy. The majority explains its disagreement by showing that after an initial administrative determination between the claimant and employer, the Employment Division has appeal rights to the Employment Appeals Board and for judicial review as a party. That obviously does not necessarily contradict the Court of Appeals. In one case the Employment Division may exercise its authority to appeal as if it were a party to reinstate its decision for the claimant and in the next its decision against the claimant. In either case, its initial determination is quasi-judicial and its subsequent action is as a combination policy-implementer and stakeholder rather than as a party with a substantive interest in the outcome.

The Court of Appeals interpreted and applied its own policy denying attorney fees against agencies which are acting quasi-judicially to include the Employment Division acting as in this case. The majority does not say that the Court of Appeals is unable to interpret its own policy. Nor do I read the majority to hold that either the policy or its application are contrary to ORS 183.495. I would defer to the Court of Appeals in any reasonable interpretation and application of its own discretionary policy.

I concur in the affirmance in Brown, Howard and Evans.