LINDE, J.
Plaintiff brought suit in circuit court for a declaratory judgment to invalidate a prior judgment against plaintiff obtained by Financial Collection Agencies, Inc., in the small claims department of the district court for Multnomah County. Her complaint attacked that judgment on constitutional grounds because the law does not give parties the absolute right to have counsel participate in trials of small claims.
There are preliminary procedural questions before that issue can be reached. The present suit named as defendants, besides the collection agency, the original creditor, Dance City, Inc., and the then attorney general. The latter was served only to give him the opportunity to be heard as provided by ORS 28.110,
and no judgment is sought against him or against the state. The other defendants made no appearance or other response. However, for reasons which do not appear, the circuit court declined to enter a default judgment. Plaintiffs attempted appeal from the order denying her motion for a default judgment was dismissed by this court because the order was not appeal-able. In search of a way to this court, plaintiff then obtained from the circuit court a judgment dismissing her case with prejudice and now appeals from this judgment.
No respondent appeared, but upon our request the attorney general filed a brief. In the brief and on oral argument counsel expressed uncertainty about the role of the attorney general under ORS 28.110. That section, set forth in note 2 above, provides that the attorney general shall be served and be entitled to be heard in declaratory proceedings attacking a state or local law (or franchise) on constitutional grounds, without, however, making him or the state a party to the case. He appears as a statutory amicus curiae to present the state’s view of the law at issue, usually expected but not obliged to defend the law’s validity as he construes it, and it is desirable that he does appear.
The attorney general suggests a number of obstacles to plaintiff’s appeal. The first is that the appeal is
really from "an action for the recovery of money or damages only” in an amount less than $250 and is therefore foreclosed by ORS 19.010(3).
Plaintiff’s complaint asked not only for a return of sums collected under the small claims judgment, which appear to be less than $250,
but also for a declaration that certain provisions governing small claims courts are unconstitutional. Whether or not plaintiff ultimately has a claim to such a declaration, we think this is not the kind of "action for the recovery of money or damages only” that the legislature excluded from appeal. Second, we conclude that plaintiff is not precluded from this appeal because she asked for the entry of the adverse judgment from which she appeals. While this solution to plaintiff’s problem appears unorthodox and somewhat illogical, it was a more efficient way to secure an order appealable under ORS 19.010,
once the trial court refused to enter a default judgment in her favor, than the slower and more problematic pursuit of a writ of mandamus.
Third, the attorney general contends that under ORS 28.110 the state must be made a party to any suit for declaratory relief challenging the validity of one of its statutes. However, ORS 28.110,
supra
note 2, expressly imposes that requirement with respect only to municipalities, and we do not agree that the state is necessarily a proper party to every private litigation in which the constitutionality of a law is challenged, though it should properly be admitted as amicus
curiae.
Moreover, the attorney general reminds us that the state could not be made a party without its consent to be sued, but that reduces his reading of ORS 28.110 to an absurdity. He cannot reasonably ascribe to the legislative assembly the intent to enact a statute that (1) expressly permits suits for a declaration concerning the validity of a state law, (2) requires the state to be made a party to such suits, and (3) does not consent to the state’s being made such a party. Also, the use of declaratory judgment for this collateral attack on the small claims judgment is questioned because plaintiff might have tried to take her constitutional claim from the small claims court directly to the Supreme Court of the United States. But it seems an incongruous contention that a litigant should exhaust possible resort to the external constraints of a federal forum before turning to Oregon’s own procedures to assert a constitutional claim, especially since this short-circuits the state’s own consideration of the claim under its statutes and constitution.
A more serious obstacle to plaintiff’s case is posed by the attorney general’s contention that plaintiff failed to preserve, or waived, her constitutional claim to a right to counsel by not making that claim in the small claims court. Plaintiff responds that precisely an uncounseled small claim litigant should not be expected to have the knowledge of such a right needed to waive it.
It is apparent that this response, though plausible if plaintiff is right in her constitutional claim, is entangled with the merits of that claim.
On the merits, plaintiff basically relies on the doctrine of one decision,
Prudential Ins. Co. v. Small
Claims Court,
76 Cal App 2d 379, 173 P2d 38 (1946), which has been cited and followed in California, Idaho, and Nebraska for the proposition that small claims procedures must either allow appearance by counsel or provide a trial de novo in a court that does allow it, because the right to have counsel appear is necessary for a "due process hearing.”
The only direct linkage of these cases to the fourteenth amendment is a passage in
Powell v. Alabama,
287 US 45 (1932), dictum as regards civil cases, that it would be a denial of such a hearing "arbitrarily to refuse to hear a party by counsel.”
Perhaps the California and Nebraska courts drew the right conclusions with respect to the fourteenth amendment.
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LINDE, J.
Plaintiff brought suit in circuit court for a declaratory judgment to invalidate a prior judgment against plaintiff obtained by Financial Collection Agencies, Inc., in the small claims department of the district court for Multnomah County. Her complaint attacked that judgment on constitutional grounds because the law does not give parties the absolute right to have counsel participate in trials of small claims.
There are preliminary procedural questions before that issue can be reached. The present suit named as defendants, besides the collection agency, the original creditor, Dance City, Inc., and the then attorney general. The latter was served only to give him the opportunity to be heard as provided by ORS 28.110,
and no judgment is sought against him or against the state. The other defendants made no appearance or other response. However, for reasons which do not appear, the circuit court declined to enter a default judgment. Plaintiffs attempted appeal from the order denying her motion for a default judgment was dismissed by this court because the order was not appeal-able. In search of a way to this court, plaintiff then obtained from the circuit court a judgment dismissing her case with prejudice and now appeals from this judgment.
No respondent appeared, but upon our request the attorney general filed a brief. In the brief and on oral argument counsel expressed uncertainty about the role of the attorney general under ORS 28.110. That section, set forth in note 2 above, provides that the attorney general shall be served and be entitled to be heard in declaratory proceedings attacking a state or local law (or franchise) on constitutional grounds, without, however, making him or the state a party to the case. He appears as a statutory amicus curiae to present the state’s view of the law at issue, usually expected but not obliged to defend the law’s validity as he construes it, and it is desirable that he does appear.
The attorney general suggests a number of obstacles to plaintiff’s appeal. The first is that the appeal is
really from "an action for the recovery of money or damages only” in an amount less than $250 and is therefore foreclosed by ORS 19.010(3).
Plaintiff’s complaint asked not only for a return of sums collected under the small claims judgment, which appear to be less than $250,
but also for a declaration that certain provisions governing small claims courts are unconstitutional. Whether or not plaintiff ultimately has a claim to such a declaration, we think this is not the kind of "action for the recovery of money or damages only” that the legislature excluded from appeal. Second, we conclude that plaintiff is not precluded from this appeal because she asked for the entry of the adverse judgment from which she appeals. While this solution to plaintiff’s problem appears unorthodox and somewhat illogical, it was a more efficient way to secure an order appealable under ORS 19.010,
once the trial court refused to enter a default judgment in her favor, than the slower and more problematic pursuit of a writ of mandamus.
Third, the attorney general contends that under ORS 28.110 the state must be made a party to any suit for declaratory relief challenging the validity of one of its statutes. However, ORS 28.110,
supra
note 2, expressly imposes that requirement with respect only to municipalities, and we do not agree that the state is necessarily a proper party to every private litigation in which the constitutionality of a law is challenged, though it should properly be admitted as amicus
curiae.
Moreover, the attorney general reminds us that the state could not be made a party without its consent to be sued, but that reduces his reading of ORS 28.110 to an absurdity. He cannot reasonably ascribe to the legislative assembly the intent to enact a statute that (1) expressly permits suits for a declaration concerning the validity of a state law, (2) requires the state to be made a party to such suits, and (3) does not consent to the state’s being made such a party. Also, the use of declaratory judgment for this collateral attack on the small claims judgment is questioned because plaintiff might have tried to take her constitutional claim from the small claims court directly to the Supreme Court of the United States. But it seems an incongruous contention that a litigant should exhaust possible resort to the external constraints of a federal forum before turning to Oregon’s own procedures to assert a constitutional claim, especially since this short-circuits the state’s own consideration of the claim under its statutes and constitution.
A more serious obstacle to plaintiff’s case is posed by the attorney general’s contention that plaintiff failed to preserve, or waived, her constitutional claim to a right to counsel by not making that claim in the small claims court. Plaintiff responds that precisely an uncounseled small claim litigant should not be expected to have the knowledge of such a right needed to waive it.
It is apparent that this response, though plausible if plaintiff is right in her constitutional claim, is entangled with the merits of that claim.
On the merits, plaintiff basically relies on the doctrine of one decision,
Prudential Ins. Co. v. Small
Claims Court,
76 Cal App 2d 379, 173 P2d 38 (1946), which has been cited and followed in California, Idaho, and Nebraska for the proposition that small claims procedures must either allow appearance by counsel or provide a trial de novo in a court that does allow it, because the right to have counsel appear is necessary for a "due process hearing.”
The only direct linkage of these cases to the fourteenth amendment is a passage in
Powell v. Alabama,
287 US 45 (1932), dictum as regards civil cases, that it would be a denial of such a hearing "arbitrarily to refuse to hear a party by counsel.”
Perhaps the California and Nebraska courts drew the right conclusions with respect to the fourteenth amendment. We do not say that we would necessarily disagree if we had to reach the issue, but we do not. Our first obligation is to assume that the
legislature did not mean to authorize actions that would violate the constitution, state or federal, so we would not be inclined to assume that in ORS 46.415(4) it had authorized small claims courts "arbitrarily to refuse to hear a party by counsel” if a party made a reasoned request to be so heard. The small claims court did not deny such a request in plaintiff’s case, since she made none.
Plaintiff asserts that the discretionary allowance of appearance by counsel is insufficient because "[a]n expression of the need for legal representation may, itself, require the assistance of counsel.” Of course, nothing prevents a litigant from consulting counsel in advance of a hearing in small claims court and, if so advised, to submit to the court a request prepared by counsel that counsel be permitted to appear. The present plaintiff in fact did consult counsel but did not submit such a request. True, it is possible that the need for the assistance of legal counsel may first arise from unanticipated developments at the trial, that the uncounseled litigant may not recognize the need to ask permission to consult counsel at that point, and that this prejudices the litigant’s position in some concrete way. Possibly also the statutory exclusion of counsel unless allowed by the court does not serve its supposed purpose, or possibly that purpose could be served as well by denying only the recovery of attorney fees in small claims cases.
But the latter questions are for
the legislature, or perhaps for the Council on Court Procedures.
See
ORS 1.735, 1.745. For the present, the law is otherwise, and we are not prepared to hold that the possible misapplication of the provision in individual cases suffices to sustain the present plaintiff’s effort to have the statute declared invalid on its face under a federal standard that has not yet been laid down by the federal Court. Since it is reasonable to assume that the legislature does not intend its laws to be interpreted or applied in a manner that would be unconstitutional,
see Oregon Medical Association v. Rawls,
281 Or 293, 300, 574 P2d 1103 (1978);
Tharalson v. State Dept. of Revenue,
281 Or 9, 13, 573 P2d 298 (1978), and cases cited therein, we expect that the courts, when requested, will give the consent contemplated by ORS 46.415(4) when this is needed to give full protection to the rights of litigants to a due process hearing.
Since plaintiff in this case made no such request, the trial court did not err in dismissing her suit. The judgment is affirmed.