Review v. Gunson

349 Or. 1

238 P.3d 374

Craig COLBY, Petitioner on Review,

v.Karen GUNSON, State Medical Examiner, Respondent on Review.

(CC 06C15785; CA A133979; SC S057691).

Supreme Court of Oregon,En Banc.

Argued and Submitted May 13, 2010.

Decided Aug. 26, 2010.

On review from the Court of Appeals. ^*

Craig P. Colby argued the cause and filed the petition for review in propria persona.

Jerome Lidz, Solicitor General, argued the cause and filed the brief for respondent on review. With him on the brief was John R. Kroger, Attorney General.

Thomas M. Christ, Portland, filed a brief for amici curiae ACLU Foundation of Oregon, Inc., Oregon Trial Lawyers Association, Oregon Law Center, and Disability Rights Oregon.

Barbara L. Johnston, Brisbee & Stockton LLC, Hillsboro, filed a brief for amicus curiae Carrell F. Bradley. With her on the brief was Larry A. Brisbee.

BALMER, J.

This case requires us to determine whether an attorney, acting pro se, is entitled to attorney fees under ORS 192.490(3), which grants “reasonable attorney fees” to any person who prevails in a suit seeking disclosure of a public record. Plaintiff, an attorney, filed an action on his own behalf seeking access to reports in the possession of the state medical examiner. The trial court dismissed plaintiff's claims. On appeal, the Court of Appeals reversed and remanded. Plaintiff then sought attorney fees. The Court of Appeals denied plaintiff's request, reasoning that the phrase “attorney fees” does not include the value of legal services performed by an attorney acting pro se. Colby v. Gunson, 229 Or.App. 167, 210 P.3d 917 (2009). We allowed plaintiff's petition for review and now reverse the decision of the Court of Appeals.

Plaintiff requested that defendant, the state medical examiner, disclose autopsy and laboratory reports prepared during the investigation of a police shooting. Plaintiff made the request pursuant to ORS 192.420, which provides that, with certain exceptions, “[e]very person has a right to inspect any public record of a public body in this state.” Defendant refused to disclose the reports, contending that they were exempt from disclosure. Plaintiff petitioned the Attorney General to order defendant to disclose the reports, and the Attorney General denied plaintiff's petition.

Plaintiff then instituted proceedings in the Marion County Circuit Court to obtain disclosure. See ORS 192.450(2) (authorizing proceedings). The trial court determined that the records were exempt from disclosure under ORS 192.502(9), which exempts from disclosure records that are confidential or privileged under Oregon law. Plaintiff appealed, and the Court of Appeals reversed and remanded. The court concluded that the records were not exempt under ORS 192.502(9), but remanded the case for the trial court to determine whether the records were exempt under another statute. Colby v. Gunson, 224 Or.App. 666, 199 P.3d 350 (2008).

After he had successfully appealed, plaintiff sought attorney fees under ORS 192.490(3). That statute provides, in part:

“If a person seeking the right to inspect or to receive a copy of a public record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal. If the person prevails in part, the court may in its discretion award the person costs and disbursements and reasonable attorney fees at trial and on appeal, or an appropriate portion thereof.”

(Emphases added.) The Court of Appeals denied plaintiff's request, concluding that the meaning of “attorney fees,” under the statute, is “the price demanded by an attorney for services rendered to a separate client entity.” Colby, 229 Or.App. at 171, 210 P.3d 917. Because plaintiff had represented himself, the court determined that he was not entitled to receive attorney fees for his legal services. ¹ Plaintiff filed a petition for review, which we allowed.

On review, plaintiff argues that the term “attorney fees,” as used in ORS 192.490(3), means “the value of the services performed by [an] attorney.” In plaintiff's view, although he did not represent a client separate from himself or send a bill for his services, he nevertheless performed services as an attorney and is entitled to recover the value of those services under the statute. Defendant disagrees and argues that each word-“attorney” and “fees”-has independent significance. In particular, defendant argues that the word “attorney” connotes an agency relationship, rather than a status. Thus, according to defendant, “attorney fees” must arise out of services rendered by one person in the course of representing another. Further, defendant argues, the legislature's use of the word “fees” requires that that separate client actually incur an obligation to pay for those services rendered.

For the reasons set out below, we agree with plaintiff that the term “attorney fees,” as used in ORS 192.490(3), means the reasonable value of legal services provided by an attorney in seeking the disclosure of public records. Plaintiff is a practicing attorney who performed legal services in pursuit of disclosure of public records, and plaintiff is therefore entitled to recover from defendant the reasonable value of those services, despite the fact that he acted pro se.

Because the term “attorney fees” is not defined in the statute, we look to the plain and ordinary meaning of the term. See State v. Tate, 347 Or. 318, 324, 220 P.3d 1176 (2009) (court gives words of common usage their plain, ordinary meaning). In determining the plain meaning of “attorney fees,” the Court of Appeals relied, in part, on the definition provided in Black's Law Dictionary: “The charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee.” Black's Law Dictionary 148 (9th ed 2009). Admittedly, that definition implies some sort of obligation of one individual (the client) to pay another (the attorney). However, the definition in Black's-although appropriate in certain contexts-is not the only reasonable interpretation of the term. Instead, when used in the context of an attorney fee award, the ordinary meaning of the term also includes the reasonable value of an attorney's services, whether or not the client was required to pay for those services. See ORCP 68 A(1) ( “ ‘Attorney fees' are the reasonable value of legal services related to the prosecution or defense of an action.”); ² see also Chalmers v. Oregon Auto. Ins. Co., 263 Or. 449, 455, 502 P.2d 1378 (1972) (“For the purpose of determining what is a reasonable attorney fee in the appeal of a case to this court, * * * we must attempt to ascertain the reasonable value of such services[.]”).

Indeed, we previously have held that a party may collect attorney fees regardless of whether the party incurred an obligation to pay for the legal services provided. In Domingo v. Anderson, 325 Or. 385, 938 P.2d 206 (1997), the plaintiffs brought an action challenging the notice of sale and the propriety of the sale of collateral that the defendant had sold after the plaintiffs defaulted on a loan agreement. The defendant prevailed on summary judgment and requested attorney fees pursuant to a contract. Under the contract, the plaintiffs had agreed to “pay all costs and expenses” of any action in which the defendant was required to appear, including “[the defendant's] attorney fees.” Id. at 387, 938 P.2d 206. The defendant's attorney had been hired by the Professional Liability Fund, a lawyers' professional liability insurance fund, rather than by the defendant personally. The plaintiffs argued that, because the defendant had not personally paid the attorney for his services, the defendant could not collect attorney fees under the contract. This court disagreed, concluding that the contract, in requiring only that the plaintiffs pay the defendant's “attorney fees,” did not contain any condition requiring that the defendant first be obligated to pay for the attorney's services. ³

Similarly, ORS 192.490(3) provides-without limitation-that any “person” who prevails in a suit seeking the right to inspect or to receive a copy of a public record shall be awarded “reasonable attorney fees.” There is no requirement that the prevailing party, or anyone else, be obligated to pay for the legal services rendered in the suit. Nor is there a requirement that the “person” who prevailed be a different person from the attorney whose services procured that favorable result. Instead, the term “attorney fees,” as used in the context of attorney fee awards, means the reasonable value of services performed by an attorney, whether or not anyone incurs an obligation to pay for those services.

Defendant argues that, even if the term “attorney fees” does not require an obligation to pay for legal services, the legislature's use of the term “attorney” prevents an award of attorney fees to pro se litigants. Defendant argues that the plain and ordinary meaning of the term “attorney” is one who “provid[es] legal services or representation for an entity or person other than oneself.” Thus, defendant argues, an attorney acting pro se is not an “attorney” for purposes of ORS 192.490(3).

Defendant relies in part on Black's Law Dictionary, which defines “attorney” as follows:

“1. Strictly, one who is designated to transact business for another; a legal agent.-Also termed attorney-in-fact; private attorney. 2. A person who practices law; Lawyer.-Also termed (in sense 2) attorney-at-law; public attorney.”

Black's at 147. Defendant urges us to rely on the first definition, which focuses on the agency relationship between one who acts as an “attorney” for another. However, she points to no reason, and we can think of none, that the legislature would have intended to use the term attorney in that “strict” agency sense in the context of a statute authorizing the award of attorney fees. Instead, the legislature likely intended to use the term...