private attorney general exception in Indiana

2001In Downing v. City of Columbus, 505 N.E.2d 841, 845 (Ind.Ct.App.1987), however, the court correctly observed that the private attorney general exception had been discussed only in dicta, and never applied in Indiana to award a prevailing party its fees.

2000Further, the Downing court correctly observed that the Supreme Court in Alyeska Pipeline posited that the decisions in La Raza Unida and Sims erroneously employed the private attorney general exception.' See id.

2000The private attorney general exception has been recognized by the Indiana Court of Appeals, which first noted the exception in Saint Joseph’s College v. Morrison, Inc. 158 Ind.App. 272 , 302 N.E.2d 865, 870 (1973).

2000The private attorney general exception has been recognized by the Indiana Court of Appeals, which first noted the exception in Saint Joseph’s College v. Morrison, Inc. 158 Ind.App. 272 , 302 N.E.2d 865, 870 (1973).

2001More recently, in Morgan County v. Ferguson, 712 N.E.2d 1038, 1044 (Ind.Ct.App.1999), the court reversed an award of attorney fees to a plaintiff who had purchased a tax deed that the county issued in error, stating that the private attorney general exception only applies if supported by statutory authority.

2000More recently, in Morgan County v. Ferguson, 712 N.E.2d 1038 (Ind.Ct.App.1999), the Court of Appeals again considered the private attorney general exception.

2001Dist. v. Governor, 144 NH. 590, 761 A.2d 389, 392-93 (1999) (adopting a "substantial benefit doctrine" that mirrors what we call the private attorney general doctrine); see also Arnold v. Ariz. Dep't of Health Servs., 160 Ariz. 593 , 775 P.2d 521, 536-37 (1989)(treating "privale attorney general doc-irine" and "substantial benefits doctrine" as interchangeable terms). 4 .

2001Dist. v. Governor, 144 NH. 590, 761 A.2d 389, 392-93 (1999) (adopting a "substantial benefit doctrine" that mirrors what we call the private attorney general doctrine); see also Arnold v. Ariz. Dep't of Health Servs., 160 Ariz. 593 , 775 P.2d 521, 536-37 (1989)(treating "privale attorney general doc-irine" and "substantial benefits doctrine" as interchangeable terms). 4 .

1999Greensburg Local No. 761 Printing Specialities v. Robbins, 549 N.E.2d 79, 80 (Ind.Ct.App.1990), reh’g denied, trans. denied.

1999See Saint Joseph’s College v. Morrison, Inc. (1973) 158 Ind.App. 272, 279-80 , 302 N.E.2d 865, 870 , (recognizing the private-attorney-general theory as an exception to the American Rule) trans. denied; Greensburg Local # 761 Printing Specialities v. Robbins (1990) Ind.App., 549 N.E.2d 79, 80 (recognizing private-attorney-general theory), trans. denied.

2000The United States Supreme Court, in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269-71 , 95 S.Ct. 1612, 1627-28 , 44 L.Ed.2d 141 (1975), ruled that federal courts could not award attorneys’ fees using the private attorney general exception.

2000The United States Supreme Court, in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269-71 , 95 S.Ct. 1612, 1627-28 , 44 L.Ed.2d 141 (1975), ruled that federal courts could not award attorneys’ fees using the private attorney general exception.

2001A number of state high courts have adopted the private attorney general exception. 6 One widely-cited case is Serrano v. Priest, 20 Cal.3d 25 , 141 Cal.Rptr. 315 , 569 P.2d 1303 (1977), in which the California Supreme Court recognized the exception because: In the complex society in which we live it frequently occurs that citizens in great numbers and across a broad spectrum have interests in common.

2001A number of state high courts have adopted the private attorney general exception. 6 One widely-cited case is Serrano v. Priest, 20 Cal.3d 25 , 141 Cal.Rptr. 315 , 569 P.2d 1303 (1977), in which the California Supreme Court recognized the exception because: In the complex society in which we live it frequently occurs that citizens in great numbers and across a broad spectrum have interests in common.

1987Cal. 1972), 57 F.R.D. 94 , affirmed 488 F.2d 559 , and Sims v. Amos (M.D.Ala. 1972), 340 F. Supp. 691 , summarily affirmed 409 U.S. 942 , 93 S.Ct. 290 , 34 L.Ed.2d 215 , cited as authority for the private attorney general exception in St.

1987In Alyeska Pipeline, the Supreme Court explicitly stated that it believed the federal decisions in LaRaza Unida v. Volpe (N.D.Cal.1972), 57 F.R.D. 94 , affirmed 488 F.2d 559 , and Sims v. Amos (M.D.Ala.1972), 340 F.Supp. 691 , summarily affirmed 409 U.S. 942 , 93 S.Ct. 290 , 34 L.Ed.2d 215 , cited as authority for the private attorney general exception in St.

1987Cal. 1972), 57 F.R.D. 94 , affirmed 488 F.2d 559 , and Sims v. Amos (M.D.Ala. 1972), 340 F. Supp. 691 , summarily affirmed 409 U.S. 942 , 93 S.Ct. 290 , 34 L.Ed.2d 215 , cited as authority for the private attorney general exception in St.

1987In Alyeska Pipeline, the Supreme Court explicitly stated that it believed the federal decisions in LaRaza Unida v. Volpe (N.D.Cal.1972), 57 F.R.D. 94 , affirmed 488 F.2d 559 , and Sims v. Amos (M.D.Ala.1972), 340 F.Supp. 691 , summarily affirmed 409 U.S. 942 , 93 S.Ct. 290 , 34 L.Ed.2d 215 , cited as authority for the private attorney general exception in St.

2001Dist. v. Governor, 144 NH. 590, 761 A.2d 389, 392-93 (1999) (adopting a "substantial benefit doctrine" that mirrors what we call the private attorney general doctrine); see also Arnold v. Ariz. Dep't of Health Servs., 160 Ariz. 593 , 775 P.2d 521, 536-37 (1989)(treating "privale attorney general doc-irine" and "substantial benefits doctrine" as interchangeable terms). 4 .

2001Said Justice Shake, "The right to recover attorneys fees from one's opponent does not exist in the absence of a statute or some agreement, though a court of equity may, under some circumstances, allow attorneys' fees to be paid out of a fund brought under its control." Gavin v. Miller, 222 Ind. 459, 465 , 54 N.E.2d 277, 280 (1944) (citations omitted)(estate administration case).

2001Said Justice Shake, "The right to recover attorneys fees from one's opponent does not exist in the absence of a statute or some agreement, though a court of equity may, under some circumstances, allow attorneys' fees to be paid out of a fund brought under its control." Gavin v. Miller, 222 Ind. 459, 465 , 54 N.E.2d 277, 280 (1944) (citations omitted)(estate administration case).

2000See id., The Court asserted that it is “well entrenched” that Connecticut adheres to the American rule.

2000Thus, the Court concluded that it is “inappropriate for the judiciary to establish under the private attorney general doctrine a broad rule permitting such fees whenever a private litigant has at substantial cost to himself succeeded in enforcing a significant social policy that may benefit others.” Id. (citation omitted).

2000See Montanans, 989 P.2d at 812 .

2000Cf. Montanans, 989 P.2d at 811-12 (stating that Court had previously recognized but not applied private attorney general exception); Arnold, 775 P.2d at 537 (observing that Arizona had long recognized the private attorney general exception but had not applied it until present case).

2000Alabama, in Shelby County Commission v. Smith, 372 So.2d 1092, 1096-97 (Ala.1979), ' explicitly rejectéd the private attorney general exception, as the exception is adopted in Serrano.

2000See id.

2000See id. (citing LaRaza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972) and Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972)).

2000Cf. Moore v. City of Pacific, 534 S.W.2d 486, 504-05 (Mo.App.1976) (declining to adopt private attorney general exception in ' disallowing fees award, after concluding that plaintiff made prima facie showing that disputed redis-trieting ordinance violated constitutional “one man-one vote” principles).

2000In Tanner v. Oregon Health Sciences University, 161 Or.App. 129 , 980 P.2d 186, 189 (1999), review denied, 329 Or. 527 , 994 P.2d 129 (1999), Oregon’s Court of Appeals explained that, to obtain an award of attorneys’ fees under the Supreme Court of Oregon's, decision in Deras v. Myers, 272 Or. 47 , 535 P.2d 541 (1975), three conditions must be satisfied: (1) the proceeding must be one in equity; (2) the requesting party must have prevailed;, and (3) the requesting party must have been seeking to vindicate an important constitutional right applying to all citizens without any gain peculiar to t

2000In Tanner v. Oregon Health Sciences University, 161 Or.App. 129 , 980 P.2d 186, 189 (1999), review denied, 329 Or. 527 , 994 P.2d 129 (1999), Oregon’s Court of Appeals explained that, to obtain an award of attorneys’ fees under the Supreme Court of Oregon's, decision in Deras v. Myers, 272 Or. 47 , 535 P.2d 541 (1975), three conditions must be satisfied: (1) the proceeding must be one in equity; (2) the requesting party must have prevailed;, and (3) the requesting party must have been seeking to vindicate an important constitutional right applying to all citizens without any gain peculiar to t

2000The Court observed that adoption of the private attorney general exception would be a departure from established precedent and that any departure from precedent required “special justification.” 13 See id. (citation omitted).

2000In contrast, the Court reasoned that the private attorney general exception is “overly broad and not consistent with those policies.” Id. at 455 .

2000Noting that in Alyeska Pipeline the United States Supreme Court had held it to be Appropriate to reallocate the burdens of litigation in the manner and to the extent requested, the Court asserted, “We believe that such a determination by this court would be equally inappropriate.” 19 Id. (citing 421 U.S. at 247 , 95 S.Ct. at 1616 ). *255 The Supreme Court of Washington rejected the private attorney general exception in Blue Sky Advocates v. State, 107 Wash.2d 112 , 727 P.2d 644 (1986).

2000Noting that in Alyeska Pipeline the United States Supreme Court had held it to be Appropriate to reallocate the burdens of litigation in the manner and to the extent requested, the Court asserted, “We believe that such a determination by this court would be equally inappropriate.” 19 Id. (citing 421 U.S. at 247 , 95 S.Ct. at 1616 ). *255 The Supreme Court of Washington rejected the private attorney general exception in Blue Sky Advocates v. State, 107 Wash.2d 112 , 727 P.2d 644 (1986).

2000See Hellar, 682 P.2d at 531 .

2000The Court in Blue Sky Advocates disapproved of the plurality opinion in Miotke v. Spokane, 101 Wash.2d 307 , 678 P.2d 803, 821-22 (1984), which applied the private attorney general exception to support an award of attorneys' fees to plaintiffs in a public nuisance action seeking an injunction and damages regarding raw sewage that was being discharged into the Spokane River.

2000The Court in Blue Sky Advocates disapproved of the plurality opinion in Miotke v. Spokane, 101 Wash.2d 307 , 678 P.2d 803, 821-22 (1984), which applied the private attorney general exception to support an award of attorneys' fees to plaintiffs in a public nuisance action seeking an injunction and damages regarding raw sewage that was being discharged into the Spokane River.