Application of Roberts

628 P.2d 714, 291 Or. 21, 1981 Ore. LEXIS 924

Opinions

TANZER, J.

This is an original proceeding in habeas corpus. On the merits, we ordered plaintiff, a juvenile, released because his detention was unlawful for lack of a judicial determination of probable cause to believe that he did acts which would bring him within the jurisdiction of the juvenile court. Roberts v. Mills, 290 Or 441, 622 P2d 1094 (1981). This opinion deals with plaintiffs petition for attorney fees.

In the absence of statutory authorization, attorneys in habeas corpus cases are not entitled to compensation. Penrod v. Cupp, 284 Or 417, 587 P2d 96 (1978). Cf. United States v. Dillon, 346 F2d 633 (9th Cir), cert den 382 US 978, 86 S Ct 550, 15 L Ed 2d 469 (1965). ORS 34.355 provides for compensation of attorneys who are appointed to represent indigent habeas corpus plaintiffs. Plaintiffs attorney is not appointed, is not therefore within the coverage of the statute, and has not petitioned for compensation.

Plaintiff nevertheless claims attorney fees because the habeas corpus petition alleged a claim for relief under 42 USC § 1983¹ and attorney fees for such claims are available under 42 USC § 1988.² The state counters that a § 1983 claim cannot be brought in the state Supreme Court in the form of habeas corpus. Assuming for argument that a habeas corpus proceeding can be a “proper proceeding for redress” under § 1983 and that the inclusion of a § 1983 claim among the bases for relief is sufficient to make it “an action or proceeding to enforce a provision of section[s] * * * 1983” such that “the court in its discretion may allow the prevailing party * * * a reasonable attorney’s fee” under § 1988, we decline to exercise our statutory discretion to award attorney’s fees in this case.

A primary purpose of § 1983 is to provide a remedy for violation of a person’s civil rights where state remedies are inadequate. Monroe v. Pape, 365 US 167, 173, 81 S Ct 473, 5 L Ed 492 (1961). In Oregon, the writ of habeas corpus, provided for by ORS 34.310, is a traditional remedy for the release of a party restrained in violation of his civil rights. Relief was allowed this plaintiff based solely upon construction and application of Oregon statutes. Insofar as this case is concerned, the state remedy was procedurally and substantively adequate, and the federal enactment of § 1983 filled no void. The bare reference to § 1983 in the habeas corpus petition was proper, but it turned out to be superfluous. The invocation of § 1983 simply had no effect whatever upon the decision of the case or the relief granted.

The only potential effect of plaintiffs inclusion of a claim under § 1983 is to afford a basis for plaintiffs prayer for attorney fees under § 1988. Here, plaintiff had access to a lawyer because his counsel was furnished by the state in the ordinary course of the underlying juvenile proceeding pursuant to ORS 419.498(2). To apply § 1988 in this case would have no effect beyond amending ORS 34.355 to include non-appointed lawyers. Congress had a larger purpose in mind.

The purpose of 42 USC § 1988 is to ensure that private citizens have a meaningful opportunity to vindicate the important congressional policies contained in the Civil Rights Act. S. Rep No. 94-1011,94th Cong 2nd Sess 4 (1976), 5 US Code Cong. & Admin News Serv, § 5908 (1976). Here, where an adequate state procedure exists for vindication of the juvenile’s right to be free from illegal restraint, we decline to award attorney fees under § 1988.³

1 The sole reference to 42 USC 1983 is in this paragraph of the petition for writ of hab.eas corpus:

“Plaintiff brings this action pursuant to 42 U.S.C. § 1983, see Terry v. Kolski, 78 Wis. 475, 254 N.W. 2d 704 (1977), the Fourth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Oregon Constitution, ORS 34.310 to 34.730, and Rule 32 of the Oregon Rules of Civil Procedure.”

2 42 USC § 1983 provides in pertinent part:

“Every person who, under color of any statute * * * of any State * * * subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

42 USC § 1988 provides in pertinent part:

“* * * In any action or proceeding to enforce a provision of sections * * * 1983 of this title * * * the court, in its discretion, may allow the prevailing party * * * a reasonable attorney’s fee as part of the costs.”

3 We are mindful that in federal courts attorney fees have been granted under § 1988 where federal jurisdiction was based on § 1983 but the case was decided on a pendant state claim. See Lund v. Affleck, 587 F2d 75 (CA RI 1978); Anderson v. Redman, 474 F Supp 571 (DSC Del 1971). That situation is distinguishable from the instant case in which the § 1983 claim is essentially surplusage. Federal courts have also allowed attorney’s fees where there are two federal law claims, one based on § 1983 and the other not, and where the case was decided on the non-fee claim, but both claims arose out of a nucleus of common facts. See White v. Beal, 447 F Supp 788 (DC Pa 1978), Southeast Legal Defense Group v. Adams, 436 F Supp 891 (DC Or 1977). That situation is more analogous to this but we believe our approach to be preferable.