Awarding costs and attorney fees when finding for petitioner
(1) In a judicial proceeding designated under subsection (2) of this section the court:
(a) May, in its discretion, allow a petitioner reasonable attorney fees and costs if the court finds in favor of the petitioner.
(b) Shall allow a petitioner reasonable attorney fees and costs if the court finds in favor of the petitioner and determines that the state agency acted without a reasonable basis in fact or in law; but the court may withhold all or part of the attorney fees from any allowance to a petitioner if the court finds that the state agency has proved that its action was substantially justified or that special circumstances exist that make the allowance of all or part of the attorney fees unjust.
(2) The provisions of subsection (1) of this section apply to an administrative or judicial proceeding brought by a petitioner against a state agency, as defined in ORS 291.002 (Definitions), for:
(a) Judicial review of a final order as provided in ORS 183.480 (Judicial review of agency orders) to 183.484 (Jurisdiction for review of orders other than contested cases);
(b) Judicial review of a declaratory ruling provided in ORS 183.410 (Agency determination of applicability of rule or statute to petitioner); or
(c) A judicial determination of the validity of a rule as provided in ORS 183.400 (Judicial determination of validity of rule).
(3) Amounts allowed under this section for reasonable attorney fees and costs shall be paid from funds available to the state agency whose final order, declaratory ruling or rule was reviewed by the court. [1981 c.871 §1; 1985 c.757 §5]
Note: 183.497 (Awarding costs and attorney fees when finding for petitioner) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 183 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
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