CLACKAMAS COUNTY OREGON, MAY 21, Plaintiff, and Warren MITCHELL, an individual, Contestor-Appellant, v. CLACKAMAS RIVER WATER, a municipal corporation; and Clackamas County, a political subdivision of the State of Oregon, Intervenors-Respondents, and Kenneth HUMBERTSON, аn individual; Hugh H. Kalani, an individual; and Larry Sowa, an individual, Contestees-Respondents.
Clackamas County Circuit Court CV13060731; A157776
Oregon Court of Appeals
August 24, 2016
Petition for review denied January 13, 2017 (360 Or 752)
280 Or App 366 | 382 P3d 598
Robert D. Herndon, Judge.
Argued and submitted June 6, 2016
Affirmed.
C. Robert Steringer argued the cause for respondent Clackamas River Water. With him on the briefs were Brett Applegate and Harrang Long Gary Rudnick P.C.
Steрhen Madkour for respondent Clackamas County joined the brief of respondent Clackamas River Water.
No appearance for respondents Kenneth Humbertson, Hugh H. Kalani, and Larry Sоwa.
Before Ortega, Presiding Judge, and Armstrong, Judge, and Lagesen, Judge.
LAGESEN, J.
Affirmed.
Contestor Mitchell alleges that contestees Sowa, Humbertson, and Kalani knew of illegal votes cast in their election to thе board of commissioners of Clackamas River Water (CRW), a domestic water supply district. As authorized by
CRW then petitioned under
“complaint makes claims which were reckless, willful and in bad faith. Specifically, the petition asserted the contestees had knowledge of thousands of illegal votes being cast in district elections. In fact, [contеstor] offered no evidence to support such a claim. [Contestor] had little actual knowledge of the evidence in the case and [contestor’s] primary witness at trial was Patricia Holloway who authored the petition, paid the filing fee and arranged for publication of the required notice.
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“[Contestor’s] claim the ‘contestees’ had knowledge of or connivеd in the casting of illegal votes was without basis and the claims were objectively unreasonable. Even if this was not clear to [contestor] before commencement of the litigation, it is simply nоt possible to conclude [contestor] and his counsel did not reach the conclusion they could not satisfy their burden of proof with regard to knowledge during the course of the litigation.
“Furthermore, during the course of the litigation [contestor] and his alter ego Patricia Holloway conducted themselves in a way which increased the time and expense of all parties assоciated with this controversy.”
The court entered a supplemental judgment on the fee award. Contestor has appealed that supplemental judgment. For the reasons that follow, wе affirm that judgment.
On appeal, contestor first makes a number of arguments as to why the trial court erred by permitting CRW to intervene. But contestor did not appeal the general judgment dismissing the petition; contestor appealed only the supplemental judgment awarding fees. That means, by statute, our jurisdiction is limited to consideration of only those matters decided by the supplemental judgment.
Contestor next argues that CRW is not a “prevail-ing part[y] under
Contestor’s final argument on appeal is that the award of fees, under the Noerr-Pennington doctrine, violates his rights under the First Amendment to the United States Constitution. Broadly stated, the common-law Noerr-Pennington doctrine holds that a person who petitions the government for redress, including by filing litigation, generally cannot be held liable for damages for their petitioning conduct, even if that conduct might otherwise violate the antitrust laws or other statutes, unless the petitioning activity is a sham. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 US 49, 56-60, 113 S Ct 1920, 123 L Ed 2d 611 (1993). The doctrine serves tо safeguard the First Amendment right to petition the government. Id. at 56. Contestor contends that the doctrine prohibits shifting CRW’s fees to him because doing so would, in his view, make him liable for damages resulting from his litigation conduct.
We disagree for two reasons. First, the few courts to have considered the issue have declined to extend the doctrine to preclude awards of attorney fees under fee-shifting statutes. Those courts have reasoned—persuasively, in our view—that requiring a party to bear the costs of litigation is not the same thing as subjecting the party to liability for petitioning conduct, which is what the Noerr-Pennington doctrine prohibits. The Seventh Circuit has described as “startling” the proposition that the Noerr-Pennington doctrine would preclude the imposition of attorney fees under a fee-shifting statute, opining further thаt “the proposition that the first amendment, or any other part of the Constitution, prohibits or even has anything to say about
Second, allowing for the possibility that the First Amendment’s guarantee of the right to petition might impose some restriction on fee shifting in election contests or other direct сhallenges to governmental action—as distinct from litigation involving only private parties—“baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson‘s Restaurants, Inc. v. N.L.R.B., 461 US 731, 743, 103 S Ct 2161, 76 L Ed 2d 277 (1983). Here, the trial court found that contestor’s clаims were “without basis” and “objectively unreasonable,” and there is some evidence to support that finding. Under such circumstances, the fee award against contestor does not presеnt First Amendment concerns.
Affirmed.