author: DEHOOG, P. J.

text:
    In the MATTER OF the MARRIAGE OF James B. KASNER, Petitioner-Respondent, and Julie Anne Kasner, Respondent-Appellant.
    A163210
    Court of Appeals of Oregon.
    Submitted September 1, 2017. February 6, 2019
    Julie A. Kasner filed the brief pro se.
    No appearance for respondent.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   DEHOOG, P. J.

Wife appeals the trial court's order denying an ORS 107.452 motion to reopen her dissolution case to address an interest in real property allegedly concealed by husband in the course of the parties' underlying divorce proceedings. In March 2015, the court entered a judgment that dissolved the parties' marriage, distributed their debts and assets, and awarded wife spousal support. Wife sought to reopen the case in August 2016, but the court denied her motion, explaining that the property at issue had not been omitted from the judgment. Wife appeals that denial. See ORS 19.205(3) (authorizing appeal of an order entered after a judgment that "affects a substantial right"). Husband does not appear on appeal. For the reasons that follow, we conclude that the trial court was not required to reopen the parties' dissolution case despite wife's allegation that an asset belonging to husband had existed at the time of the judgment but was not "discovered" until sometime thereafter. As a result, the trial court did not err in denying wife's motion. We therefore affirm.

Few facts from the underlying dissolution action are relevant to this appeal. Husband and wife married in 1994. Husband filed for dissolution in 2015. For seven of the last nine years of their marriage, the parties lived on a ranch property with husband's parents. The final two years of the marriage, the parties lived on the ranch without husband's parents, who by then were both deceased. The ownership of that ranch property-specifically, when husband became part owner of the ranch-was the focus of wife's post-judgment motion.

At trial, husband testified that his parents had granted him a one-quarter ownership interest in the ranch through a 1992 trust agreement. Upon reviewing the agreement, the trial court concluded that, because husband's resulting interest in the ranch predated the parties' marriage in 1994, that interest was not a marital asset; accordingly, the court awarded husband's interest in the ranch solely to him. See ORS 107.105(1)(f) (governing property division at dissolution; distinguishing property acquired before marriage from property acquired during the marriage and applying a presumption of equal contribution only to the latter). The trial court observed, however, that its ruling as to husband's interest in the ranch meant that husband would receive possession and partial ownership of the marital residence, while wife would be left essentially "homeless." The court therefore found that, to be "fair and just," it would be equitable to award wife an equalizing sum of $10,000 to partly offset that disparity. In March 2015, the court entered a general judgment reflecting those rulings.

Wife filed a motion to reopen the dissolution case in August 2016. In her motion, wife asserted that, contrary to husband's testimony-and despite the 1992 trust agreement suggesting otherwise-she had recently learned from husband's sister-in-law that husband had not acquired his interest in the ranch as a beneficiary of the trust; rather, husband's parents had transferred the ranch property to husband and his siblings by deed in 1997, well after husband and wife were married. Wife contended that husband's interest in the ranch should therefore have been deemed a marital asset subject to the presumption of equal contribution and distributed accordingly. The trial court denied wife's motion to reopen the case, stating:

"DENIED. The [ranch] property was not omitted from the distribution. It is referenced by address and legal description in the General Judgment. Respondent was aware of the property at trial and had the opportunity to present evidence of the extent and value of Petitioner's interest in the property."

(Uppercase in original.) Wife appeals.

Wife requests de novo review. She does not, however, explain why this is an extraordinary case justifying that treatment. ORAP 5.40(8)(c). Furthermore, the procedural posture of this case is not such that we could review the merits of wife's underlying factual claims even if we might otherwise find it appropriate to do so. That is, the trial court did not take any evidence or make any factual findings in connection with the challenged ruling. Rather, it denied wife's motion due to its apparent understanding of the law, namely, that ORS 107.452 did not require it to reopen the case based upon wife's allegations. Accordingly, we review the trial court's ruling on wife's motion to reopen for errors of law. Conrad and Conrad , 191 Or. App. 283, 286, 81 P.3d 749 (2003).

Wife's motion to reopen her dissolution case is governed by ORS 107.452, which provides, in relevant part:

"(1) A court that entered a judgment of marital annulment, dissolution or separation shall reopen the case upon the motion of either party if the moving party alleges that significant assets belonging to either or both of the parties:
"(a) Existed at the time of the entry of the judgment; and
"(b) Were not discovered until after the entry of the judgment."

If, after reopening the case, "the court finds that the assets were inadvertently omitted from the distribution of the marital estate," the court must distribute the assets "as is just and proper in all the circumstances." ORS 107.452(2). And, if the court finds "that the assets were intentionally concealed and thereby not included in the distribution of the marital estate," the court may impose any of several enumerated remedial or punitive measures. ORS 107.452(3). We construed ORS 107.452 under somewhat similar circumstances in Conrad . In that case, the husband moved to reopen his dissolution case under ORS 107.452, alleging that, at the time of the divorce trial, the wife had owned the harvesting rights to timber on land that she owned, even though she and another witness had testified that the wife did not own those rights. 191 Or. App. at 285, 81 P.3d 749. The trial court denied the husband's motion to reopen, and, on appeal, we reversed. Our decision that the trial court had erred in denying the motion to reopen under ORS 107.452 required us to consider whether that statute "authorizes the reopening of a dissolution case for the purpose of dividing property that was excluded from the original judgment because its true ownership [as opposed to its existence] was concealed." Id. at 288, 81 P.3d 749 (emphasis added). Ultimately, based upon the text and context of the statute, we reasoned that the inquiry, whether "assets belonging to either or both parties" had not been discovered before entry of judgment, logically required the trial court to consider whether the true ownership-and not merely the existence-of property interests had been concealed or otherwise overlooked at the time of trial. Id. at 290, 81 P.3d 749. As a result, we concluded that ORS 107.452 authorizes "relief from a dissolution judgment for the fraudulent concealment of the true ownership of a significant asset belonging to the parties or either of them, even if the existence of the asset was known before the entry of judgment." Id. at 292, 81 P.3d 749.

To some extent, wife's motion in this case parallels the motion in Conrad , in that wife alleged that the disputed property interest-specifically, husband's fractional share in the ranch property-had been known to exist at the time of the entry of the judgment, but that its true ownership had not been "discovered" until after the entry of the judgment, due to husband's fraudulent concealment of the 1997 deed transferring the ranch to husband and his siblings. Thus, given the mandatory language of ORS 107.452, there is some initial appeal to wife's contention that her motion required the court to reopen the case. ORS 107.452(1) (providing that a court "shall" reopen upon a motion satisfying statute's terms); see also Tibbetts and Mueller , 183 Or. App. 379, 386, 52 P.3d 1067 (2002) (recognizing that ORS 107.452 imposes a mandatory duty on the court when a party has alleged the specified circumstances).

We conclude, however, that, despite the superficial similarities between the motion in Conrad and wife's motion in this case, the trial court did not err. Here, unlike the wife in Conrad , husband never contended that he did not own the disputed asset; in fact, he expressly contended throughout the dissolution proceedings that he did own a share of the ranch property. And, as the trial court observed in declining to reopen wife's case, husband's interest in that asset therefore "was not omitted from the distribution," as were the timber rights at issue in Conrad , 191 Or. App. at 285, 81 P.3d 749. See ORS 107.452(2) (providing for relief when assets are inadvertently "omitted from the distribution of the marital estate"); ORS 107.452(3) (authorizing various remedies when assets are intentionally concealed and "thereby not included in the distribution of the marital estate"). Wife does not contend otherwise. Furthermore, even though the mandatory language of ORS 107.452(1) leaves a trial court no discretion to deny a motion to reopen that satisfies the terms of the statute, wife does not argue that the trial court could not determine whether, in fact, her motion satisfied the statute by looking at the judgment that had been issued; as the court noted, that judgment had accounted for the disputed interest in the ranch. As a result, the trial court correctly concluded that wife's motion did not satisfy the requirements of ORS 107.452 and, therefore, did not err in denying that motion. Accordingly, we affirm.

Affirmed.

      The trial court expressed its understanding that, because husband's parents were both deceased by the time husband filed for dissolution, his trust interest in a share of the ranch property had, by then, "vested." Although the court therefore appears to have assumed that the character of husband's interest changed post-marriage-from a trust interest in an undivided fraction of the ranch to an outright interest in the same-it does not appear to have considered whether that change meant that husband acquired any part of that asset after the parties married.

      The trial court understood husband's one-fourth share in the ranch to be worth approximately $125,000, but noted that, because husband did not "have full say on what to do with it[,] *** that affect[ed] its value."

      In addition to filing a timely notice of appeal from that ruling, wife wrote the trial court a letter urging it to reconsider. Treating wife's letter as a motion to reconsider, the trial court again denied wife's request to reopen her case, further explaining that it did not believe that reopening the case would produce a different outcome. However, the issue in an ORS 107.452 motion is whether the movant has sufficiently alleged a basis to reopen a case, not whether that party appears likely to ultimately improve his or her position; accordingly, we do not further consider that explanation. See Tibbetts and Mueller , 183 Or. App. 379, 386, 52 P.3d 1067 (2002) (trial court had not erred in reopening the case under ORS 107.452, even though the nonmoving party contested the allegations of the motion and, in fact, the moving party ultimately failed to establish that the disputed asset had been concealed).

      Specifically, in cases of intentional concealment,
      "the court may order:
      "(a) The division of the appreciated value of the omitted assets;
      "(b) The forfeiture of the omitted assets to the injured party;
      "(c) A compensatory judgment in favor of the injured party;
      "(d) A judgment in favor of the injured party as punitive damages; or
      "(e) Any other distribution as may be just and proper in all the circumstances."
      ORS 107.452(3).

      We also discussed ORS 107.452 in Dunkin v. Dunkin , 162 Or. App. 500, 986 P.2d 706, rev. den. , 329 Or. 553, 994 P.2d 130 (1999). Ultimately, however, we concluded that the trial court had properly granted the wife relief under ORCP 71 C, and it was therefore not necessary to address whether the wife was separately entitled to relief under ORS 107.452. Id. at 511, 986 P.2d 706. We also discussed the statute in Tibbetts , 183 Or. App. 379, 52 P.3d 1067. In that case, however, we held without any elaboration that, in light of the wife's allegations that a marital residence had been omitted from the judgment, together with the mandatory wording of ORS 107.452, the trial court had properly reopened the case over the husband's contention that the wife had known of that property all along. Id. at 386, 52 P.3d 1067.


source: Caselaw Access Project

author: POWERS, J.

license: Public Domain

text:
    In the MATTER OF the COMPENSATION OF Rodolfo AREVALO, Claimant.
    Travelers Insurance Company and Baker Industrial Services, Petitioners, v. Rodolfo Arevalo, Respondent.
    A162868
    Court of Appeals of Oregon.
    Argued and submitted October 5, 2017. March 13, 2019
    Benjamin C. Debney, Portland, argued the cause and filed the briefs for petitioners.
    Zachary W. Brunot, Salem, argued the cause and filed the brief for respondent.
    Theodore P. Heus and Preston Bunnell, LLP, filed the brief amicus curiae for Oregon Trial Lawyers Association.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   POWERS, J.

Employer Baker Industrial Services (Baker) and its workers' compensation insurance carrier, Travelers Insurance Company (Travelers), seek judicial review of an order of the Workers' Compensation Board (the board) awarding claimant attorney fees and a 25 percent penalty under ORS 656.262(11)(a) for unreasonable claim processing. On review, Travelers assigns error to the board's award of attorney fees under ORS 656.383(2) and ORS 656.382(3), arguing that the effective date of those statutes precludes the board from awarding the fees. Travelers also assigns error to the board's assessment of a 25 percent penalty and related attorney fees under ORS 656.262(11)(a) for unreasonable claim processing, arguing that the record in this case supports the conclusion that Travelers had a legitimate doubt as to the proper method to calculate claimant's temporary total disability (TTD) rate, such that its claim processing was not unreasonable. As explained below, we conclude that the board did not err in awarding attorney fees or in assessing a penalty and related attorney fees and therefore affirm.

Beginning in 2010, claimant worked periodically for Baker, working 12-hour days. Claimant testified that, between 2010 and 2013, he completed approximately four or five projects for Baker per year and that, after each job, there was no agreement with Baker that claimant would return. In December 2013, claimant began permanent employment with All-Ways Excavation (AWE). Claimant reported to Baker that he was taking the AWE job and that he would no longer be available for future jobs with Baker; however, in January 2014, Baker offered claimant a week-long job at a mill in Toledo, Oregon. Claimant testified that he received permission from AWE to take one week off so that he could work the Toledo job, for which he expected to be paid a higher wage by working overtime.

The board found that, based on claimant's testimony and Baker's office manager's testimony, claimant's work for Baker was temporary, as needed, and that there was no agreement between Baker and claimant about future work. The board found that claimant, Baker, and AWE understood that claimant's Toledo job for Baker would last only one week, after which claimant would return to his job with AWE. Claimant injured his left arm during the one-week period while working for Baker. In calculating claimant's TTD rate under OAR 436-060-0025(5), Travelers averaged claimant's 52 weeks of earnings preceding the work injury. Claimant challenged the calculation of the TTD rate, as well as the duration of benefits, and requested a hearing.

An administrative law judge (ALJ) awarded claimant TTD benefits for a portion of the additional period that claimant sought and concluded that Travelers had been unreasonable in its failure to pay that compensation. For that processing error, the ALJ assessed a penalty under ORS 656.262(11)(a) and attorney fees. However, the ALJ determined that Travelers had properly calculated claimant's TTD rate based on claimant's average weekly earnings with Baker for the 52 weeks prior to the date of injury. Claimant appealed the ALJ's order to the board, continuing to contend that the rate of TTD was incorrect and to seek benefits for an additional period of disability. Travelers also appealed, challenging the award of penalties and attorney fees.

The board declined to extend claimant's benefits for an additional period of disability, but upheld the ALJ's assessment of a penalty and award of attorney fees. The board also agreed with claimant that Travelers had miscalculated claimant's TTD rate. Finding that claimant's employment with Baker was not continuous, but terminated after each period of work, the board concluded that, under OAR 436-060-0025(5)(a)(A) (2014), claimant's wage rate for purposes of TTD must be based on claimant's wage agreement with Baker during the most recent period of employment-that is, the one-week job in Toledo. The board awarded claimant an attorney fee under ORS 656.383(2) for his attorney's services in pursuing a correction of Travelers' TTD calculation.

The board further concluded that Travelers' calculation of claimant's TTD rate based on claimant's 52 weeks of pre-injury wages had been unreasonable and assessed a penalty based on 25 percent of the amounts due as a result of the improper calculation, along with a $ 3,000 penalty-based attorney fee for services rendered litigating the issue.

Finally, because claimant had prevailed on Baker's challenge to the ALJ's award of attorney fees, the board further awarded claimant attorney fees under ORS 656.382(3).

On review, Travelers first contends that the board's awards of attorney fees under ORS 656.383(2) and ORS 656.382(3) are erroneous as a matter of law because neither party raised the issue before the board. In addition, Travelers argues that the awards were in error because the effective date of both attorney fee provisions is January 1, 2016, and the provisions apply only to orders issued and attorney fees incurred on or after the effective date. According to Travelers, all briefing and legal services were rendered prior to the effective date, such that the statutes do not give rise to an award of fees in this case. Travelers also argues on review that the board erred in awarding a 25 percent penalty and $ 3,000 in attorney fees under ORS 656.262(11)(a) for unreasonable claim processing. In Travelers' view, the record supports the conclusion that Travelers had a legitimate doubt as to the calculation of claimant's TTD rate, such that its claim processing was not unreasonable under the circumstances.

We first address Travelers' arguments regarding attorney fees. As an initial matter, Travelers contends that, because claimant never requested an attorney fee under ORS 656.383(2) or ORS 656.382(3), the board erred in awarding the fees sua sponte . According to Travelers, the board "overreached by addressing an issue not raised by either party, relieving claimant of his burdens of proof and persuasion and depriving Travelers an opportunity to defend the issue." We disagree. We consistently have held that, under the board's de novo review, it has authority to reverse or modify an ALJ's order or make any other disposition that it deems appropriate. See ORS 656.295(6) (providing that the board "may affirm, reverse, modify or supplement the order of the Administrative Law Judge and make such disposition of the case as it determines to be appropriate"); see also Farmers Ins. Group v. Huff , 149 Or. App. 298, 307, 942 P.2d 853 (1997) (rejecting argument that the board erred because it addressed the issue of attorney fees sua sponte ).

Our decision in Braden v. SAIF , 187 Or. App. 494, 68 P.3d 1004 (2003), is not to the contrary. It is true, as Travelers asserts, that there are "limits on the board's authority" when it reviews de novo . Id. at 498, 68 P.3d 1004 (citing Birrer v. Principal Financial Group , 172 Or. App. 654, 659-60, 19 P.3d 972 (2001) ). Those limits prevent the board from "side-stepping the statutory requirements for claim processing." Braden , 187 Or. App. at 498, 68 P.3d 1004. As we explained, "[f]or example, in a case determining compensability, the board could not, under its de novo authority, determine that a claimant is permanently totally disabled. Nor could the board, in an extent of disability case, determine that the claim was never compensable." Id. However, we conclude that the board has authority on its de novo review to address entitlement to attorney fees sua sponte .

As to the merits, we agree with claimant that the board did not err in determining that both ORS 656.383(2) and ORS 656.382(3) were applicable. Those provisions were enacted by the legislature in 2015. Or. Laws 2015, ch. 521, §§ 5, 10. The parties' arguments require us to construe Oregon Laws 2015, chapter 521, section 11, which determined when the new attorney fee provisions became applicable:

"Section 10 of this 2015 Act and the amendments to ORS * * * 656.382 * * * apply to orders issued and attorney fees incurred on or after the effective date of this 2015 Act, regardless of the date on which the claim was filed."

Or. Laws 2015, ch 521, § 11. "In interpreting a statute, the court's task is to discern the intent of the legislature." PGE v. Bureau of Labor and Industries , 317 Or. 606, 610, 859 P.2d 1143 (1993). We do that using the analytical framework set out in State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009), by examining the text, context, and any pertinent legislative history to discern the legislature's intended meaning. Whether the board correctly interpreted the statutes is a question that we review for legal error. ORS 183.482(8)(a) ; Baker v. Liberty Northwest Ins. Corp. , 257 Or. App. 205, 210, 305 P.3d 139, rev. den. , 354 Or. 597, 318 P.3d 749 (2013).

In determining that the statutory changes to the relevant attorney fee provisions applied to this case, the board first examined the definition of "incurred," which, in turn, implicated the definition of "liable." In light of those definitions, the board concluded that claimant did not become entitled to fees, and the insurer did not become liable for them, until claimant finally prevailed, viz. , when the board issued its final order. Thus, the board applied the statutory changes to its award because, in the board's view, the fees were "incurred" on the effective date of the final order, July 27, 2016, after the January 1, 2016, effective date of the statutes.

Travelers agrees with the board that, because the order issued on July 27, 2016, the order was "issued" on or after January 1, 2016. Travelers, however, disagrees with the board's reasoning that the "attorney fees incurred" on the date of the order, given the issuance date of the order. Claimant, on the other hand, argues that the board did not err in its determination that the statutory changes applied in this case and that Travelers' interpretation is untenable. According to claimant, Travelers' interpretation of section 11 does not account for the contingent nature of the attorney fees (in that they may be awarded only after the claimant has prevailed) and does not comport with the plain meaning and legislative history of the provision.

We begin by examining the text of the provision, which requires us to determine the meaning of the term "incurred," as it is used in section 11. The pertinent definition of "incur" is to "become liable or subject to[.]" Webster's Third New Int'l Dictionary 1146 (unabridged ed. 2002). "Liable" means "bound or obligated according to law or equity : RESPONSIBLE, ANSWERABLE." Id. at 1302. As the Supreme Court has held in a different context, when read together, those definitions indicate that attorney fees are incurred when "the party has become obligated in law or equity, or otherwise is subject to, responsible, or answerable for the payment of the reasonable value of an attorney's services." Menasha Forest Products Corp. v. Curry County Title , 350 Or. 81, 89, 249 P.3d 1265 (2011).

Here, however, the term "incurred" is used in the context of ORS 656.383(2) and ORS 656.382(3), which provide that a claimant is not entitled to an assessed attorney fee until he or she prevails on the disputed issue. Thus, attorney fees are contingent on achieving a favorable result and cannot be "incurred" for the purposes of this statutory framework until a final order is issued.

Our review of the legislative history supports the conclusion that the term "incurred," as it is used in section 11, relates to when a claimant finally prevails on a disputed issue. In a letter written to the Senate Committee on Workforce, the Workers' Compensation Management-Labor Advisory Committee (MLAC) outlined the principles MLAC used in evaluating proposed changes to attorney fee provisions. Among those principles was "[e]nsuring the effective date of changes minimizes disruption and adverse behavior, but that changes apply to cases currently in the system." Senate Committee on Workforce, HB 2764, May 13, 2015, Exhibit 4 (Letter from the Workers' Compensation Management-Labor Advisory Committee to Senate Committee on Workforce). By explaining that the changes to the attorney fee provisions would "apply to cases currently in the system," MLAC suggested that it is not only concerned with legal services rendered after the effective date of the statutes, but also concerned with legal services rendered before the effective date. Furthermore, the Oregon Trial Lawyers Association submitted a two-column chart to the Senate Committee on Workforce that provided an explanation of the legislative purpose and intent behind each of the sections of HB 2764 in one column, and the proposed statutory language of each of the sections in the other. See Senate Committee on Workforce, HB 2764, May 27, 2015, Unmarked Exhibit (Summary of HB 2764 submitted by the Oregon Trial Lawyers Association). With respect to section 11, the chart provided that HB 2764 "applies to orders issued and attorney fees incurred (for attorney work done before and after the effective date ) regardless of the date of claim filing, so long as there is no final order as of the effective date." Id. (emphasis added).

Here, even though the attorney's briefing and other services were completed prior to the effective date of both statutes, claimant was not entitled to, and Travelers did not become liable for, the fees until the final order was issued, after the effective date of the statutes. Accordingly, we conclude that the board did not err in determining that ORS 656.383(2) and ORS 656.382(3) apply.

Finally, we turn to Travelers' contention that the board erred in assessing a 25 percent penalty and a $ 3,000 attorney fee award under ORS 656.262(11)(a) for unreasonable claim processing. The board found that Travelers did not have a legitimate doubt with regard to the proper formula to be used to calculate claimant's TTD rate under OAR 436-060-0025(5)(a)(A), and as a result, assessed a penalty and fee under ORS 656.262(11)(a). Travelers does not contest the board's findings; rather, it argues that, as a matter of law, the record does not support the board's determination regarding legitimate doubt.

If an insurer unreasonably delays or unreasonably refuses to pay compensation, the insurer shall be liable for an additional amount up to 25 percent of the amount due plus any attorney fees. See ORS 656.262(11)(a). The standard for determining unreasonableness is whether, from a legal standpoint, the insurer has a legitimate doubt as to its liability. Cayton v. Safelite Glass Corp. , 257 Or. App. 188, 192, 306 P.3d 726 (2013). Put another way, an employer or its insurer does not act unreasonably if the employer or insurer has a "legitimate doubt" about its obligation to pay. If the insurer has legitimate doubt, then the refusal to pay is not unreasonable. "Whether an employer acted unreasonably or, instead, had a legitimate doubt as to its liability is considered in the light of all the evidence available to the insurer." Hamilton v. Pacific Skyline, Inc. , 266 Or. App. 676, 680-81, 338 P.3d 791 (2014) (internal quotation omitted). We review the board's finding that Travelers did not have a legitimate doubt as to the correct method for calculating claimant's wages for substantial evidence under ORS 183.482 (8)(c). See Snyder v. SAIF , 287 Or. App. 361, 367, 402 P.3d 743 (2017). "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c).

The board found that Baker was aware that claimant's employment with Baker was temporary and "as needed," particularly with regard to the one-week job in Toledo. Based on that finding and the Supreme Court's opinion in Tye v. McFetridge , 342 Or. 61, 74, 149 P.3d 1111 (2006) (when seasonal work with an employer terminates at the end of the season, the worker's wage is to be calculated based on the parties' intent as indicated by the wage agreement for the employment at injury), the board concluded that Travelers did not have a legitimate doubt as to the proper method for calculating claimant's TTD rate under OAR 436-060-0025(5)(a)(A). Accordingly, the board assessed a penalty and fee under ORS 656.262(11)(a).

Travelers does not dispute that it made an erroneous calculation of benefits, but contends that the record does not support the board's determination regarding legitimate doubt, citing evidence from which it asserts Travelers could have understood that claimant had an ongoing employment relationship with Baker. Indeed, the board acknowledged that "claimant's report to the employer [that he was taking a job with AWE] could be construed as evidence of an ongoing employment relationship." But, in light of other evidence, including the testimony of Baker's office manager, the board found that Baker knew that claimant's employment was only temporary and as needed. Based on that finding, the board concluded that Travelers should have known that claimant's employment was not ongoing and it therefore had no legitimate doubt as to the proper method for calculating claimant's wages. We agree with claimant that the board's finding is supported by substantial evidence. Travelers' reliance on evidence that could be construed to show an ongoing employment relationship fails to take into account our standard of review. See Snyder , 287 Or. App. at 367, 402 P.3d 743 (board's determination of legitimate doubt is reviewed for substantial evidence). That is, even if the record could support a reasoned conclusion that Travelers had a legitimate doubt regarding its liability, substantial evidence review "does not permit us to supply that reasoning on behalf of the board." Hamilton , 266 Or. App. at 682, 338 P.3d 791.

Affirmed.

      ORS 656.383 provides, in part:
      "The claimant's attorney shall be allowed a reasonable assessed attorney fee if:
      "* * * * *
      "(2) The claimant finally prevails in a dispute over temporary disability compensation benefits pursuant to ORS 656.210, 656.212, 656.262, 656.268 or 656.325 after a request for hearing has been filed."
      ORS 656.382(3) provides:
      "If an employer or insurer raises attorney fees, penalties or costs as a separate issue in a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court initiated by the employer or insurer under this section, and the Administrative Law Judge, board or court finds that the attorney fees, penalties or costs awarded to the claimant should not be disallowed or reduced, the Administrative Law Judge, board or court shall award reasonable additional attorney fees to the attorney for the claimant for efforts in defending the fee, penalty or costs."

      OAR 436-060-0025(5)(a)(A) (2014) provides, in part:
      "Insurers must use the worker's average weekly earnings with the employer at injury for the 52 weeks prior to the date of injury. * * * For workers employed less than 52 weeks or where extended gaps exist, insurers must use the actual weeks of employment (excluding any extended gaps) with the employer at injury * * *. * * * For workers employed less than four weeks, insurers shall use the intent of the wage earning agreement as confirmed by the employer and the worker."

      ORS 656.262(11)(a) provides, in part:
      "If the insurer * * * unreasonably delays or unreasonably refuses to pay compensation, attorney fees or costs, or unreasonably delays acceptance or denial of a claim, the insurer * * * shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees assessed under this section. * * * In assessing fees, * * * the board or the court shall consider the proportionate benefit to the injured worker. The board shall adopt rules for establishing the amount of the attorney fee, giving primary consideration to the results achieved and to the time devoted to the case."


author: AOYAGI, J.

text:
    In the MATTER OF the COMPENSATION OF Julie HOOKS, Claimant.
    Cascade in Home Care, LLC, Petitioner Cross-Respondent, v. Julie Hooks, Respondent Cross-Petitioner.
    A164794
    Court of Appeals of Oregon.
    Argued and submitted February 15, 2018. March 20, 2019
    Benjamin C. Debney, Portland, argued the cause and filed the briefs for Petitioner-Cross-Respondent.
    Julene M. Quinn, Albany, argued the cause and filed the briefs for Respondent-Cross-Petitioner.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Claimant filed a workers' compensation claim. After employer denied the claim, an administrative law judge (ALJ) determined that the claim was compensable and set aside the denial. The Workers' Compensation Board adopted and affirmed the ALJ's order. The board then awarded $ 6,000 in attorney fees to claimant. Employer seeks judicial review of the board's determination of compensability, raising a single assignment of error, which we reject without written discussion. Claimant cross-petitions, challenging the amount of attorney fees. We write only to address the cross-petition and, for the following reasons, reverse and remand the board's order as to attorney fees.

The underlying facts provide context for the attorney fee award, so we describe them briefly. Claimant worked as an in-home caregiver. One evening, while she was caring for a male client who suffered from dementia, the client repeatedly engaged in sexually inappropriate conduct toward claimant and at one point threatened to burn down claimant's boyfriend's house. Soon after that experience, claimant began having panic attacks. She filed a workers' compensation claim for a mental disorder, which employer denied. Claimant requested a hearing. Employer defended its denial to the ALJ, arguing that claimant's mental disorder was not compensable. After considering competing medical evidence, the ALJ determined that the claim was compensable and set aside the denial. The ALJ supplemented her order on reconsideration. Employer appealed to the board. The board ultimately adopted and affirmed the ALJ's order. Thus, claimant prevailed.

When an employer initiates board review of a compensability decision, and the board "finds that all or part of the compensation awarded to [the] claimant should not be disallowed or reduced," the employer "shall be required to pay to the attorney of the claimant a reasonable attorney fee in an amount set by the * * * board." ORS 656.382(2) (emphases added). The board must consider eight factors in setting the fee amount: (a) the time devoted to the case for legal services; (b) the complexity of the issues involved; (c) the value of the interest involved; (d) the skill of the attorneys;

(e) the nature of the proceedings; (f) the benefit secured for the represented party; (g) the risk in a particular case that an attorney's efforts may go uncompensated and the contingent nature of the practice; and (h) the assertion of frivolous issues or defenses. OAR 438-015-0010(4).

After claimant prevailed, her attorney submitted a statement of services seeking $ 13,304.20 in attorney fees. A request for a specific fee is permitted, but not required, by the board's rules. See OAR 438-015-0029(1) ("a claimant's attorney may file a request for a specific fee, which the attorney believes to be reasonable," to assist the board in determining the amount of a reasonable fee award); see also OAR 438-015-0029(2) (the request "shall be considered by the Board" so long as it is filed in compliance with the rule). In response, employer had the opportunity to file objections to claimant's request, but it did not do so. See OAR 438-015-0029(3).

The board awarded an assessed fee of $ 6,000 to claimant. It explained in its order on review:

"Claimant's counsel is entitled to an assessed fee for services on review. ORS 656.382(2). After considering the factors set forth in OAR 438-015-0010(4) and applying them to this case, we find that a reasonable fee for claimant's attorney's services on review is $ 6,000, payable by the employer. In reaching this conclusion, we have particularly considered the time devoted to the case (as represented by claimant's respondent's brief and the uncontested fee request), the complexity of the issues, the value of the interest involved, the risk that counsel may go uncompensated, and the contingent nature of the practice of workers' compensation law."

Claimant contends that the board erred in awarding that amount. She makes three arguments, which we address in turn.

First , claimant argues that, because her attorney requested a specific fee, as permitted by OAR 438-015-0029(1), and because employer did not file objections, as it could have under OAR 438-015-0029(3), the board was required to award the entire $ 13,304.20 that claimant's attorney requested. We disagree. Although claimant is correct that the board must "consider" specific fee requests and responsive objections when filed, see OAR 438-015-0029(2) - (3), it does not follow that the board has less discretion when a specific request has been filed, or that the board has no discretion when a specific request has been filed and no objections have been filed.

A fee award under ORS 656.382(2) is mandatory, while the filing of a specific fee request is optional under OAR 438-015-029, with the consequence that the board will award a fee that it considers reasonable even in the absence of a specific request. See, e.g ., SAIF v. Wart , 192 Or. App. 505, 520-22, 87 P.3d 1138 (2004). If a specific request is filed, it provides the board with better information than it otherwise would have had. Objections may do the same. The board is required to consider that information, OAR 438-015-0029(2) - (3), and that information may well affect how the board exercises its discretion in choosing a fee amount among the "range of choices available to it." Schoch v. Leupold & Stevens , 325 Or. 112, 118, 934 P.2d 410 (1997) (the board is making a "choice, among the range of choices available to it," when it sets a fee award in a particular case). The submission of that information may also make it necessary for the board to provide a more thorough explanation of its decision. See Wart , 192 Or. App. at 522, 87 P.3d 1138 (order was adequate, despite lack of detail, given the absence of a statement of services or specific objections); SAIF v. Bacon , 160 Or. App. 596, 604, 982 P.2d 40 (1999) (same). Regardless of the presence or absence of a specific request or objections, however, the board has discretion in setting the amount of a fee under ORS 656.382.

Second , claimant argues that the board's order is not supported by substantial evidence, because her attorney's statement of services "supports the attorney fee requested" and "[t]here is no contrary evidence." As we recently noted in Moreau v. Samalin , 295 Or. App. 534, 538, 435 P.3d 794 (2019) (fee award in a landlord-tenant case), attorney fee awards are unusual in that they "do not appear to be strictly limited to 'the record' in the way that most substantive rulings are." Here, several factors that the board must consider in setting the fee amount-the complexity of the issues involved, the skill of the attorneys, the risk in the particular case that an attorney's efforts may go uncompensated, and the assertion of frivolous issues or defenses-are especially suited to the board's own assessment and do not necessarily depend on submitted evidence. Other factors-the nature of the proceedings, the value of the interest involved, and the benefit secured for the represented party-should be determinable from the record. The contingent nature of the practice can be elaborated upon in a fee request but is already recognized by statute. See ORS 656.388(5) (requiring the board to consider, in setting a fee schedule, "the contingent nature of the practice of workers' compensation law and the necessity of allowing the broadest access to attorneys by injured workers"). The remaining factor-the time devoted to the case for legal services-is particularly well suited to the submission of evidence, but, as already discussed, the board will award fees even in the absence of such evidence.

Given the nature of the factors that the board is required to consider in setting a reasonable fee amount, and the need to set a reasonable fee even absent a specific request or objections, we reject claimant's argument that the board must award an amount dictated only by the "evidence" submitted by the claimant and any "contrary evidence" submitted by the employer or insurer. Neither the statute nor the board's rules limit the board's discretion in that manner.

Third , claimant relies on Schoch to argue that the board abused its discretion in awarding the amount of fees that it did. Because it is directly relevant to our disposition, we quote from the Supreme Court's opinion in that case at some length:

"The attorney fee statute is a broad statement of a legislative policy that prevailing claimants' attorneys shall receive reasonable compensation for their representation. The term 'reasonable' is an inexact term that expresses a complete legislative policy. That term delegates authority to the Board to determine, on a case-by-case basis, what constitutes a reasonable attorney fee. The agency's choice, among the range of choices available to it, must be a choice that a reasonable decision-maker would make, given the facts of the case, the interests of the parties appearing before the agency, and the policy or policies of the law that the agency's choice is intended to further. Responsibility for policy refinement under the statutes is delegated to the agency, not to the court. The court, for its part, is responsible for reviewing the agency's decision to see that it is within the range of discretion granted to the agency.
"It is crucial that an agency's order reveal a rationale for an award of attorney fees. At a minimum, where the basis for an agency's discretionary choice is not obvious, an agency must provide sufficient explanation to allow a reviewing court to examine the agency's action in relation to the range of discretion granted by the legislature, the agency's own rule, officially stated agency position, or a prior agency practice, and other statutory and constitutional provisions."

Schoch , 325 Or. at 117-18, 934 P.2d 410 (internal quotation marks and citations omitted).

In this case, claimant contends that the board abused its discretion by awarding less than the full amount that her attorney requested, because, in her view, the "facts do not support a reduction." In response, employer argues that a $ 6,000 fee award works out to $ 666.67 per page for the 9-page response brief that claimant filed in the board proceeding and that, therefore, $ 6,000 was a reasonable award. We are unpersuaded by either argument; that is, we disagree that the fee award is necessarily unreasonable (and that the only reasonable award would be the entire amount requested), but we also disagree that the award is necessarily reasonable. Rather, more information from the board is necessary for us to review the fee award.

In Schoch , 325 Or. at 120, 934 P.2d 410, which involved an order quite similar to this one, the Supreme Court concluded that the board's order did "not contain a sufficient explanation to permit an appellate court to review the Board's exercise of discretion in setting a reasonable attorney fee" and therefore reversed and remanded for reconsideration. We have done the same in other cases, particularly ones involving a significant discrepancy between the amount requested and the amount awarded, as exists in this case. See, e.g. , Cayton v. Safelite Glass Corp. , 257 Or. App. 188, 196, 306 P.3d 726 (2013) (claimant requested $ 8,325 and board awarded $ 1,500); City of Albany v. Cary , 201 Or. App. 147, 153, 117 P.3d 1062 (2005) (claimant requested $ 20,000 and board awarded $ 12,000).

Most recently, in Taylor v. SAIF , 295 Or. App. 199, 203, 433 P.3d 419 (2018), where the claimant requested $ 12,000 and was awarded $ 8,000, we reversed and remanded for reconsideration because the board's order "lack[ed] an explanation of the board's reasoning sufficient to allow appellate review" and therefore was not supported by substantial reason. See Dixon v. Board of Parole and Post-Prison Supervision , 257 Or. App. 273, 286-87, 306 P.3d 716 (2013) (part of substantial reason review is ensuring that a board's order articulates the reasoning that leads from the facts found to the conclusions drawn). We made several observations in Taylor that apply equally here and lead to the same disposition: "[T]o permit meaningful appellate review, the board cannot simply recite certain factors and then state a conclusion; rather, it must articulate how the application of those factors supports the amount of fees awarded." Taylor , 295 Or. App. at 203, 433 P.3d 419. "[A]lthough the board's order identifies the applicable factors and states that the board has considered them, the order fails to articulate a connection between those factors in its conclusion sufficiently to allow us to understand the board's reasoning." Id ."The board's order does not indicate which of [more than one potential rationales] led the board to its ultimate conclusion, and we are not permitted to supply reasoning on behalf of the board." Id . at 204, 433 P.3d 419 ; see also City of Albany , 201 Or. App. at 154, 117 P.3d 1062 ("[T]he board's order does not explain what portion of the request it rejected or why."). Accordingly, we reverse and remand for reconsideration of the attorney fee award.

Affirmed on petition; reversed and remanded on cross-petition for reconsideration of attorney fees.

      When no specific request is filed, the board essentially "infer[s] the amount of time that the attorney reasonably expended on the case and the reasonable value of his or her services from the extent of the proceedings and the nature of the issues litigated before the agency." SAIF Corp. v. Bacon , 160 Or. App. 596, 600, 982 P.2d 40 (1999) ; see also Wart , 192 Or. App. at 522, 87 P.3d 1138 (similar).

      Cf. ORCP 68 C(4)(f) (trial court "may" award attorney fees as requested in the prevailing party's fee statement if no objection is made); Council on Court Procedures, Staff Comment to ORCP 68, 32 (Dec. 15, 1990) (even when there is no objection, the trial court has "discretion to pass on the reasonableness of the amounts claimed").

      By contrast, in Farmers Ins. Co. v. Aranda , 279 Or. App. 36, 50-51, 379 P.3d 552 (2016), we concluded that the board's order was adequate for review where the amount awarded ($ 25,000) was "not, relatively speaking, a significant departure" from the amount requested ($ 23,700) and the reason for that small departure was discernable from the record.


text:
    Mary GEDDRY and John Brooker, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Respondents, v. Dennis RICHARDSON, Secretary of State of Oregon, Defendant-Appellant.
    A164828
    Court of Appeals of Oregon.
    Argued and submitted April 16, 2018. February 13, 2019
    Christopher A. Perdue, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Ann B. Kneeland, Eugene, argued the cause and filed the brief for respondents.
    Gregory A. Chaimov, Tim Cunningham, and Davis Wright Tremaine LLP filed the brief amicus curiae for Oregonians for Food & Shelter, Oregon Forest & Industries Council, Oregon Farm Bureau Federation, Oregon Association of Realtors, Oregon Home Builders Association, and American Forest Products Association.
    Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC, filed the brief amicus curiae for Our Oregon.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
    GARRETT, J. pro tempore Plaintiffs brought this action seeking to enjoin defendant, the Secretary of State, to certify Initiative Petition 2016-055 (IP 55) for the 2016 ballot. The putative ballot measure would amend the Oregon Constitution to far-reaching effect by, among other things, empowering local communities to enact laws that would be "immune from preemption or nullification by state law, federal law, or international law." Based on legal advice from the Attorney General, the secretary refused to certify IP 55 on the ground that it violated certain constitutional requirements for proposed initiatives. The trial court reversed the secretary's decision, concluding that the secretary had exceeded his preelection authority by engaging in a "substantive" review and analysis to determine whether IP 55 complied with the Oregon Constitution. The court further declared that IP 55 facially complied with all constitutional requirements for proposed initiatives and-because the 2016 election had, by that point, already passed-ordered the secretary to renumber and certify IP 55 for the 2018 election based on the requirements that had been met in 2016. On appeal, the secretary challenges each of those rulings. For the reasons explained below, we reverse.
    The facts are procedural and undisputed. In 2015, plaintiffs filed their initiative petition with the secretary for placement on the 2016 general election ballot. The measure would add the following section to Article I of the Oregon Constitution:
    "Section 47. Right of Local Community Self-Government
    "(1) As all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness, and the people have at all times the right to alter, reform or abolish their government should it become destructive to their fundamental rights or well-being, therefore the people have an inalienable and fundamental right of local community self-government, in each county, city, town, or other municipality.
    "(2) That right shall include the power of the people, and the power of their governments, to enact and enforce local laws that protect health, safety, and welfare by recognizing or establishing the rights of natural persons, their local communities, and nature; and by securing those rights using prohibitions and other means deemed necessary by the community, including measures to establish, define, alter, or eliminate competing rights, powers, privileges, immunities, or duties of corporations and other business entities operating, or seeking to operate, in the community.
    "(3) Local laws enacted pursuant to subsection (2) shall be immune from preemption or nullification by state law, federal law, or international law, and shall not be subject to limitation or preemption under Article IV, section 1(5), Article VI, section 10, or Article XI, section 2 of this constitution, or Oregon Revised Statutes 203.035, provided that:
    "(a) Such local laws do not restrict fundamental rights of natural persons, their local communities, or nature secured by the Oregon Constitution, the United States Constitution, or international law; and
    "(b) Such local laws do not weaken protections for natural persons, their local communities, or nature provided by state law, federal law, or international law.
    "(4) All provisions of this section are severable."
    The secretary assigned the prospective petition an identification number, 2016-055, and plaintiffs submitted the required sponsorship signatures to the secretary. See ORS 250.045(1).
    The secretary verified the sponsorship signatures and forwarded the text of IP 55 to the Attorney General for the drafting of a ballot title. See ORS 250.065. The Attorney General did so, and the secretary accordingly solicited public comments on the measure. See ORS 250.067(1). The secretary forwarded the received comments to the Attorney General, see id. , who then issued a letter to the secretary opining that IP 55 failed to comply with two requirements for proposed initiatives in the Oregon Constitution. Specifically, the Attorney General concluded that IP 55 likely violated the "separate-vote rule" of Article XVII, section 1, because the measure proposed multiple changes to the constitution that were not "closely related," including establishing both the "authority to create rights for one category of entities" as well as the "authority to alter or eliminate ostensibly 'competing' rights for a different category of entities." (Emphases omitted.) In addition, the Attorney General concluded that IP 55 likely violated the "revision rule" of Article XVII, section 2, because the text of the measure would "fundamentally alter[ ] numerous other constitutional provisions, the powers and responsibilities of the legislative and executive branches of state government, and the respective authority of state and local governments." The secretary adopted the Attorney General's opinion and, in April 2016, rejected IP 55.
    Plaintiffs sought judicial review of the secretary's decision, alleging, among other things, that the secretary had violated plaintiffs' state and federal constitutional rights by "refus[ing] to issue a certified ballot title for and authorize the circulation of [IP 55] based on pre-election requirements under Article XVII, Section 1 and Article XVII, Section 2 of the Oregon Constitution," because the secretary "lacks the authority to conduct pre-election review on the asserted grounds." The parties submitted cross-motions for summary judgment, which the trial court took under advisement on November 10, 2016.
    Meanwhile, the constitutional deadline for submitting the requisite number of signatures for circulation in the 2016 general election passed in July 2016. See Or. Const., Art. IV, § 1 (2) (setting out deadline of four months before election). The 2016 general election itself happened on November 8.
    In April 2017, the trial court issued a letter opinion denying the secretary's motion for summary judgment and granting in part and denying in part plaintiffs' cross-motion for summary judgment. Acknowledging that the secretary has the constitutional duty to review proposed measures for "procedural compliance with the Constitutional provisions regarding initiative petitions," the court nevertheless concluded that the secretary had exceeded that authority by engaging in a "substantive analysis" of IP 55:
    "In this case, the analysis in the Attorney General's March 31, 2016 letter is a substantive review of the contents of IP 55. Unlike [ Holmes v. Appling , 237 Or. 546, 392 P.2d 636 (1964) ], IP 55 does not contain facial statements seeking to revise, in whole or in part, or replace the current Constitution. Divining the scope and intent of IP 55 is not possible without a substantive review and contemplation of its language. It was impermissible for the Secretary of State to deny circulation of IP 55 based upon the substantive analysis of the Attorney General."
    The court ordered the secretary to renumber IP 55 for the 2018 election, issue a certified ballot title, approve the new measure for immediate circulation, and "count all verified signatures submitted for the sponsorship submission for IP 55 toward the total number of required signatures" for the new measure "to qualify [it] for the November 2018, or next appropriate, ballot." The court adopted those conclusions in a May 2017 judgment.
    The secretary appeals that judgment, raising three assignments of error. In the first assignment, the secretary argues that the trial court erred in partially granting summary judgment for plaintiffs based on the court's conclusion that the secretary exceeded his authority by conducting a substantive analysis of IP 55 before the election. In the second assignment, the secretary argues that the trial court should have granted his motion for summary judgment because, according to the secretary, IP 55 violates both the separate-vote rule set out in Article XVII, section 1, and the revision rule set out in Article XVII, section 2. Finally, in the third assignment of error, the secretary contends that the trial court erred by ordering him to count IP 55's sponsorship signatures obtained for the 2016 election toward the number of signatures necessary to qualify the renumbered initiative for the 2018 election.
    We begin with the third assignment of error, for two reasons. First, that assignment is resolved in the secretary's favor by a recent decision of the Supreme Court. Second, the secretary argues that a ruling in his favor on that issue renders the other assignments of error moot (although, as discussed below, the secretary requests that we nonetheless exercise our discretion to review one of those assignments).
    While this appeal was pending, the secretary sought a stay of the trial court's judgment. The Appellate Commissioner issued a stay on several conditions, including that the Attorney General issue a certified ballot title so that electors who had earlier submitted comments on IP 55 could challenge the new ballot title before the Supreme Court. Accordingly, the secretary retitled IP 55 to IP 29 (2018) and the Attorney General certified the new initiative for the 2018 election based entirely on the sponsorship signatures and comments that were submitted for IP 55 in 2016. No one submitted new sponsorship signatures for IP 29 (2018) and the Attorney General never issued a draft ballot title for comment.
    Two individuals who had submitted comments about IP 55 in 2016, Unger and Stagg, petitioned the Supreme Court to review the legal sufficiency of IP 29 (2018).See Unger v. Rosenblum , 362 Or. 210, 407 P.3d 817 (2017) ; see also ORS 250.085(2) (electors who commented on draft ballot title may seek review in Supreme Court). The court held that it lacked authority to review IP 29 (2018) because certain prerequisites for review, like the collection of sufficient sponsorship signatures and issuance of a draft ballot title for comment, had not been satisfied. Unger , 362 Or. at 225, 407 P.3d 817. The court rejected the argument that those requirements for IP 29 (2018) had been met because those same prerequisites for IP 55 were satisfied in 2016 and, according to the trial court's order, were required to be counted toward IP 29 (2018). Rather, according to the court, IP 55 had "expired" when the July 2016 deadline for collecting supporting signatures elapsed; therefore, to put a measure on the 2018 ballot, plaintiffs needed to "start over" at the next election cycle. Id. at 222-25, 407 P.3d 817.
    In light of Unger , the secretary now asserts that we must reverse on the third assignment of error because the trial court lacked authority to order the secretary to "count all verified signatures submitted for the sponsorship submission for IP 55 toward the total number of required signatures to qualify an initiative for the November 2018, or next appropriate, ballot." We agree. Unger effectively "expired" IP 55 as of July 2016 and plaintiffs are required to begin the measure certification process anew for any future election. No affirmative authority supports the trial court's determination that signatures obtained for IP 55 in 2016 may be "counted toward" a new prospective initiative petition in a future election cycle, and that determination runs counter to the reasoning of Unger . See 362 Or. at 223-25, 407 P.3d 817. Accordingly, we reverse that portion of the judgment requiring the secretary to count IP 55's sponsorship signatures toward a future election.
    We turn to the first and second assignments of error, and we begin with the secretary's argument that reversal on the third assignment of error renders those other assignments moot. As we explain below, we agree that the other issues are moot but conclude that they remain justiciable under ORS 14.175.
    An issue is moot if the court's decision on the matter will no longer have a practical effect on the rights of the parties. State v. K. J. B. , 362 Or. 777, 785, 416 P.3d 291 (2018) ; Couey v. Brown , 257 Or. App. 434, 439, 306 P.3d 778 (2013), rev'd on other grounds sub nom Couey v. Atkins , 357 Or. 460, 522-23, 355 P.3d 866 (2015). In the context of initiative petitions, typically, the expiration of the constitutional deadline for collecting supporting signatures for circulation will render moot any litigation over the legal sufficiency of the initiative. See, e.g. , Harisay v. Atkins , 295 Or. App. 493, 495, 434 P.3d 442 (2018) (challenge to proposed initiative moot after deadline for collecting supporting signatures for circulation passed); Couey , 257 Or. App. at 443, 306 P.3d 778 (same). As noted, that deadline in this case elapsed in 2016, and IP 55 has "expired." Unger , 362 Or. at 223, 407 P.3d 817. Thus, no decision in this case will have any practical effect on IP 55. Furthermore, in light of our conclusion (based on Unger ) that the trial court erred by ordering signatures for IP 55 to be counted toward the requisite number of signatures for a future initiative petition, a decision on the first and second assignments of error would not have a practical effect on any currently pending petition. Therefore, the issues raised in the first two assignments are moot.
    Even where an issue is moot, however, we still may exercise our discretion to review it if, under ORS 14.175, it remains justiciable as a constitutional challenge to the act of a public body that is capable of repetition, yet likely to evade review. Harisay , 295 Or. App. at 496, 434 P.3d 442 ; Eastern Oregon Mining Assoc. v. DEQ , 285 Or. App. 821, 829, 398 P.3d 449, rev. allowed , 362 Or. 175, 406 P.3d 612 (2017). Here, the conditions of ORS 14.175 are satisfied. First, plaintiffs have standing to challenge the secretary's decision. See ORS 14.175(1) ; see also ORS 246.910 (appeals for acts and orders by secretary). Second, the issue is "capable of repetition" because plaintiffs could resubmit the same or a similar initiative petition in a future election and the secretary could reject it for the same reason as here. ORS 14.175(2). Third, future challenges to similar initiative petitions are "likely to evade judicial review" because election cycles are short and the judicial process can be lengthy. ORS 14.175(3) ; see Harisay , 295 Or. App. at 496, 434 P.3d 442 (applying "capable of repetition, yet evading review" exception to election-related challenge); State ex rel Smith v. Hitt , 291 Or. App. 750, 753-54, 424 P.3d 749 (2018) (same).
    The question remains whether we should exercise our discretion to review the moot issues. We conclude that several prudential considerations weigh in favor of considering at least the first assignment of error. See Eastern Oregon Mining , 285 Or. App. at 830-32, 398 P.3d 449 (detailing nonexclusive list of "prudential justifications" that courts consider in choosing whether to review moot issues). Both parties request our resolution of the issue and have advanced fully developed arguments that the trial court has had the opportunity to consider. In addition, the issue raised in the first assignment-namely, the scope of the secretary's preelection authority to review initiative petitions for compliance with constitutional requirements governing the initiative power-has obvious implications for future elections and is an issue of public importance. See id. at 831-32, 398 P.3d 449 (considering both whether the issue affects a "wider group of parties or interests" than only the parties in the case and whether the issue is one of "relative public importance").
    We thus exercise our discretion to review the first assignment of error. As noted, the trial court concluded that the secretary exceeded his authority by engaging in a "substantive review" of IP 55 and declining to certify the measure based on his determination that the measure contravened Article XVII, sections 1 and 2, by proposing (1) multiple constitutional amendments that were not "closely related" and (2) a revision, rather than an amendment, to the constitution. On appeal, the secretary argues that the trial court misunderstood the nature of the secretary's constitutional role in the process of certifying initiative petitions. We agree with the secretary.
    The initiative power is broad but not unlimited. The Oregon Constitution circumscribes that power in several ways. For instance, Article XVII of the Oregon Constitution prohibits the use of an initiative measure for the proposal of multiple unrelated constitutional amendments, revisions to the constitution, and entirely new constitutions. Holmes , 237 Or. at 552, 392 P.2d 636. Article IV, section 1(5), provides that local initiatives and referenda cannot be a vehicle for the proposal of measures that are administrative, executive, adjudicative, or advisory in nature. See, e.g. , City of Eugene v. Roberts , 305 Or. 641, 649, 756 P.2d 630 (1988) ; Rossolo v. Multnomah County Elections Div. , 272 Or. App. 572, 584, 357 P.3d 505 (2015).
    The parties agree that, in addition to prescribing certain requirements for the valid use of the initiative power, the constitution entrusts the secretary with the responsibility for monitoring compliance with those requirements. See Or. Const., Art. IV, § 1 (4)(a) (proposed initiatives are filed with the secretary); Or. Const., Art. IV, § 1 (4)(b) (initiative petitions must be "submitted to the people as provided in" Article IV, section 1, "and by law not inconsistent therewith"); cf. OEA v. Roberts , 301 Or. 228, 232, 721 P.2d 833 (1986) (secretary has preelection duty to certify compliance of proposed initiative with requirement in Article IV, section 1(2)(d), that a "proposed * * * amendment to the Constitution shall embrace one subject only").
    The parties further agree that the secretary's preelection review authority to ensure compliance with the constitution does not extend to reviewing measures for substantive constitutionality. That is, the secretary may not refuse to certify an initiative merely because the secretary believes that the substance of the measure, if enacted, would violate either the state or the federal constitutions. Neither may a court prevent a measure from appearing on the ballot because of general constitutional concerns. See, e.g. , State ex rel Fidanque v. Paulus , 297 Or. 711, 716, 688 P.2d 1303 (1984) ("[N]either the court nor the Secretary of State could review the merits of the proposed initiative for its constitutionality before enactment[.]"); cf. Foster v. Clark , 309 Or. 464, 471, 790 P.2d 1 (1990) (courts "may not inquire into general questions of constitutionality" before the election).
    The dispute in this case is whether the secretary's actions regarding IP 55 constitute, on the one hand, legitimate preelection review for compliance with the Oregon Constitution's procedural rules regarding the initiative process, or, on the other hand, illegitimate preelection review for "substantive constitutionality." The secretary argues that his review of IP 55 was permissible because it was not a review of the measure's general constitutionality; rather, the secretary merely was fulfilling his constitutional duty to ensure that proposed measures meet threshold constitutional requirements directly governing the initiative power , which necessarily involves reading a measure's substance and applying legal tests for determining whether it complies with the separate-vote and revision rules of Article XVII. See, e.g. , Armatta v. Kitzhaber , 327 Or. 250, 277, 959 P.2d 49 (1998) (measure violates separate-vote rule if it proposes multiple amendments that are substantive and not "closely related"); Holmes , 237 Or. at 552, 392 P.2d 636 (assessing whether proposed measure violated the revision rule).
    The trial court took a different view, which plaintiffs urge on appeal. As we understand it, the trial court reasoned that, in order to reconcile (1) the secretary's obligation to review for procedural compliance with the constitution with (2) the prohibition on reviewing for "substantive" constitutionality, the secretary may invalidate a measure on the basis of the separate-vote or revision rules only if the secretary can discern from the "face" of the petition-that is, without a "substantive review" of the measure's text-that one or more of those rules is violated. Hence, the trial court explained that IP 55 does not contain "facial statements seeking to revise, in whole or in part" the current constitution. (Emphasis added.) Rather, "[d]ivining the scope and intent of IP 55 is not possible without a substantive review and contemplation of its language. " (Emphasis added.)
    We do not understand the Supreme Court's decisions in this area to rest on the distinction that the trial court appears to have drawn between preelection "substantive"
    analysis of a proposed measure for compliance with Article XVII and some type of lesser review. It is true that the secretary may not invalidate a measure because of his belief that the measure, if enacted , would substantively violate another provision of the state or federal constitutions. That does not mean, however, that the secretary may not engage in "substantive" review to determine whether the measure complies with the limitations on the initiative power itself set forth in the Oregon Constitution. In Holmes , the court held that the content of an initiative petition violated one such limitation-the "revision rule" of Article XVII, section 2-noting:
    "Since the plaintiffs' petition proposed to submit to the people, under the initiative, a change in our constitution which the Attorney General advised the [secretary] would constitute a revision, the [secretary] necessarily was required to determine whether our laws granted him authority to pursue the course which the plaintiffs requested."
    237 Or. at 554-55, 392 P.2d 636. That language does not condition the secretary's authority to review measures for compliance with Article XVII on that review being "facial" only, as opposed to a substantive legal analysis of the measure's text. Other decisions of the Supreme Court since Holmes are consistent with the idea that the secretary may (indeed, must) review measures before certifying them for compliance with Article XVII's limitations on the use of the initiative power, and none of them suggest that that obligation must be fulfilled without "substantive" review and analysis. See OEA , 301 Or. at 232, 721 P.2d 833 (secretary has preelection duty to certify compliance of proposed initiative with requirement in Article IV, section 1(2)(d), that a "proposed * * * amendment to the Constitution shall embrace one subject only"); Fidanque , 297 Or. at 715 n 5, 688 P.2d 1303 ("Approval by the Secretary of State is conditioned not only upon verification of the required number of sponsor signatures, but also upon determination that the use of the initiative power in each case is authorized by the Constitution.").
    Plaintiffs have made no persuasive argument that the foregoing authorities restrict the secretary's authority to review a measure for compliance with Article XVII. Instead, they rely on State ex rel. v. Newbry et al. , 189 Or. 691, 222 P.2d 737 (1950), in which the Supreme Court declined to consider a challenge to a proposed initiative based on the separate-vote rule because, according to the court, such review would amount to an impermissible review of the measure's constitutionality in violation of the separation of powers and the unitary power of the legislature. Id. at 697, 222 P.2d 737.
    Newbry has been disavowed. In Foster , the Supreme Court took note of Newbry and several cases adhering to it, but then discussed a separate line of later cases holding that measures may be rejected before an election so that they are kept off the ballot where "the measure is legally insufficient to qualify for that ballot." 309 Or. at 469-70, 790 P.2d 1 (citing, among other cases, Holmes ). Observing that those two lines of cases appeared to "run in different directions," the court expressly rejected the Newbry line of authorities, which it said were not as "clearly reasoned." Id. at 470-71, 790 P.2d 1. The later line of cases, the court explained, stated the "correct rule": Proposed initiatives may be evaluated before an election to determine whether they are of the type authorized by the Oregon Constitution to be placed on the ballot but may not be evaluated for "general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution." Id. at 471, 790 P.2d 1. Applying that "correct rule," the Foster court concluded that a proposed initiative could be challenged before an election on the ground that it was not "municipal legislation" under Article IV, section 1(5), because "that qualifying language is used in the constitution itself." Id.
    In Meyer v. Bradbury , 205 Or. App. 297, 302, 134 P.3d 1005, rev'd on other grounds , 341 Or. 288, 142 P.3d 1031 (2006), we summarized the Foster rule as turning on whether a preelection challenge to the text of a proposed initiative is "based on language in the constitution that qualifies or limits the initiative power." Under that statement of the rule, we concluded that the substance of a proposed initiative could be challenged before an election on the basis of the separate-vote requirement because Article XVII expressly limits the initiative power itself-in other words, it "speaks to the 'legal sufficiency' of a proposed initiative." Meyer , 205 Or. App. at 303, 134 P.3d 1005.
    In short, plaintiffs' reliance on Newbry is misplaced because that case has been superseded by other Supreme Court cases, which support a conclusion that the secretary may review a proposed measure for "legal sufficiency," that is, compliance with the limitations that Article XVII places on the initiative power. For the foregoing reasons, we conclude that the trial court erred to the extent that it determined that the secretary exceeded his authority by reviewing IP 55 for compliance with the rules set out in Article XVII.
    That conclusion leaves unresolved the issue raised in the secretary's second assignment of error: whether IP 55 violated Article XVII. Because the trial court resolved this case on the basis that the secretary could not engage in "substantive" review at all , the trial court did not reach the issue of whether the secretary's analysis was correct on the merits. As discussed above, this issue is moot but justiciable under ORS 14.175 ; accordingly, we must first determine whether to exercise our discretion to review it. See Eastern Oregon Mining , 285 Or. App. at 829, 398 P.3d 449.
    In making that determination, we consider it significant that, following the Unger decision, the secretary has conceded that the second assignment is moot yet has not asked us to review it. Rather, the secretary appears to take the position that we need only address the first assignment, which, in his view, presents an "issue of ongoing constitutional concern." Plaintiffs, for their part, argue:
    "As a procedural matter, this court should decline to engage in a review of the substantive application of the separate-vote and revision rules to [IP 55] for the first time on appeal. Rather, if further review and orders are necessary, this court should remand this case to the trial court for review consistent with this court's decision."

      For much of the proceeding, Jeanne Atkins was the Secretary of State. For purposes of this opinion, we refer to the secretary as the one at the time of the judgment, Dennis Richardson, and accordingly use "him" or "his" to reflect that.

      Article XVII, section 1, provides, in part, that "[w]hen two or more amendments shall be submitted *** to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately."

      Article XVII, section 2, sets out the exclusive method for how to revise the Oregon Constitution, and does not permit the proposal of constitutional revisions via the initiative power. The section provides, in relevant part:
      "(1) In addition to the power to amend this Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election[.]"

      Indeed, although the Supreme Court in Unger did not rule on that issue, it pointed to the clear implication of its analysis:
      "It could be argued that our decision in this case necessarily means that the trial court erred in ordering the Secretary of State to assign a new initiative petition number to IP 55 (2016) and approve the renumbered measure for circulation, long after the deadline passed for submitting signatures for the 2016 election cycle, which effectively determines the issues currently pending before the Court of Appeals in [this case]."
      362 Or. at 225, 407 P.3d 817.

      See also, e.g. , Maginnis v. Childs , 284 Or. 337, 339, 587 P.2d 460 (1978) ; State ex rel. Carson v. Kozer , 126 Or. 641, 645-48, 270 P. 513 (1928).

   Plaintiffs also note that the trial court did not have the opportunity to consider defendant's alternative arguments regarding IP 55's validity under the "substantive" tests applied by the secretary and Attorney General. Cf. id. at 831, 398 P.3d 449 (in deciding whether to exercise discretion to review moot issue, court may consider whether a future case might present a more developed record).

Unlike the first assignment of error, which presents a widely-applicable issue of ongoing importance-the scope of the secretary's preelection review authority-the second assignment of error raises a fact-bound question of whether the language of a now-expired initiative petition was compliant with Oregon constitutional requirements. See id. at 834, 398 P.3d 449 (declining to exercise discretion to review moot issue that "raises a case-bound question that, although perhaps [is] significant to this now-mooted case, does not present a recurring legal issue that has implications beyond this particular litigation"). Moreover, it is not apparent to us that a challenge concerning a measure like the one at hand is "likely to arise often." Id. at 831, 398 P.3d 449 (emphasis omitted); see also id . (judicial economy favors not reviewing moot issues that are unlikely to reoccur). Those points diminish the public importance of the issue. See id. at 833, 398 P.3d 449. Accordingly, we decline to exercise our discretion to reach the merits of that moot question.

Reversed.