State Ex Rel. Aspen Group, Inc. v. Washington County Board of Commissioners

HASELTON, J.,

concurring.

I write separately to express my view that the error here was, in large part, of our own making.

In Aspen Group I, in which I joined, we remanded for reconsideration of the fee award. In doing so, we necessarily implied that, on these facts, under ORS 20.075(1), the trial court might possess some discretion to award fees. We were wrong in that regard. In fact, as the majority demonstrates, the only legally permissible exercise of discretion was, and is, to deny fees.

Appellate hindsight, even more than most, is 20/20. Nevertheless, the proper result in Aspen Group 1 should have been an outright reversal.