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Westfall v. Rust International11/5/1992
on was sought had an improper purpose in bringing the claim, defense, or ground for appeal or review. Mattiza v. Foster, supra, 311 Or at 10. An improper purpose could be shown by evidence of actions taken in bad faith, wantonly, or solely for oppressive purposes; rarely, it could be inferred solely from the meritlessness of the claim. Id. at 9. Actions taken in bad faith were further construed as "conduct the primary aim of which was something other than the procurement of the fair adjudication of an authentic claim." Id. at 12.
On remand, the Court of Appeals concluded that the test for bad faith under ORS 20.105(1) had no bearing on a request for sanctions under ORS 656.390 for a "frivolous" appeal. Westfall v. Rust International, 111 Or App 289, 826 P2d 64 (1992) (Westfall V). Citing the disjunctive phrasing of ORS 656.390, the Court of Appeals held that sanctions may be ordered under that statute for a frivolous appeal even if that appeal was not filed in bad faith or for the purpose of harassment. 111 Or App at 292. Applying the Mattiza court's interpretation of the term "meritless" to the term "frivolous" in ORS 656.390, the Court of Appeals found that the petition for judicial review filed here was frivolous and affirmed the earlier sanction order. Id. at 293. We allowed review to address the interpretation of ORS 656.390.
We agree with the Court of Appeals that there is no basis in the record for concluding that the petition for judicial review in this case was filed "in bad faith," ORS 656.390. Westfall V, supra, 111 Or App at 292. Neither is there a basis in the record for concluding that it was filed "for the purpose of harassment," ORS 656.390. Therefore, the first issue for us to consider is the meaning of the word "frivolous" in ORS 656.390.
In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020; State ex rel Juv. Dept. v. Ashley, 312 Or 169, 174, 818 P2d 1270 (1991). We begin with the text and context of the statute. ORS 174.010; Porter v. Hill, 314 Or 86, 838 P2d 45 (1992). When the text and context of the statute do not make the legislature's intention clear, we turn to legislative history to aid us in construing the statute. Boone v. Wright, 314 Or 135, 836 P2d 727 (1992).
ORS 656.390 was enacted in 1987. Or Laws 1987, ch 884, ยง 31. The statute does not define "frivolous" or otherwise indicate what the legislature meant in using that word. The legislative history of the statute reveals that the provision was based on FRCP 11. Tape Recording, Senate Labor Committee, June 10, 1987, Tape 211, Side B. FRCP 11 states that a lawyer's signature on pleadings, motions, or other papers
"constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in cost of litigation."
Respecting FRCP 11, the court in Eastway Const. Corp. v. City o
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