S056096, Opinion — Pendleton School Dist. v. State of Oregon

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On petitioners' petition for reconsideration of opinion regarding attorney fees
and costs,* petition for reconsideration allowed; former opinion modified
and adhered to as modified November 27, 2009

PENDLETON SCHOOL DISTRICT 16R;
Eugene School District 4J;
Crow-Applegate-Lorane School District 66;
Coos Bay School District 9; Corvallis School District 509J;
Josephine County Unit/Three Rivers School District;
Astoria School District 1C; Creswell School District;
Lincoln County School District; Siuslaw School District 97J;
Centennial School District; Amity School District 4J;
Reynolds School District #7; Coquille School District #8;
Parkrose School District #3; Pine Eagle School District #61;
Jefferson School District; Mckenzie School District;
Alexandra Kiesling and Timothy Kiesling, minors,
by Amy Cuddy, their guardian ad litem;
Grace Peyerwold, a minor,
by David and Maria Peyerwold, her guardians ad litem;
Marshall Taunton and Harrison Taunton, minors,
by Tim and Wendy Taunton, their guardians ad litem;
and Benjamin Sherman and Claire Sherman, minors,
by Larry Sherman and Diane Nichol, their guardians ad litem,
Plaintiffs-Appellants,
Petitioners on Review,
v.

STATE OF OREGON,
Defendant-Respondent,
Respondent on Review.

(CC 0603-02980; CA A133649; SC S056096)
220 P3d 744

# En Banc

James N. Westwood and Robert D. Van Brocklin, Stoel
Rives LLP, Portland, filed the petition for reconsideration for
petitioners on review.

No appearance contra.

PER CURIAM

\* 347 Or 28, 217 P3d 175 (2009).

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The petition for reconsideration is allowed. The former
opinion is modified and adhered to as modified.

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346

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# PER CURIAM

Petitioners seek reconsideration of this court's opin-
ion in Pendleton School Dist. v. State of Oregon, 347 Or 28,
217 P3d 175 (2009) (Pendleton II). Specifically, petitioners
object to the inclusion of a particular sentence in the majority
opinion in that case. In that sentence, the majority character-
ized a part of this court's earlier opinion in Pendleton School
Dist. v. State of Oregon, 345 Or 596, 200 P3d 133 (2009)
(Pendleton I) as follows:

"[T]he court also ruled that the provision in Article VIII,
section 8, [of the Oregon Constitution,] contemplating a
report from the legislature explaining its failure to fund
education at the required level (when and if that was the
case) is a permissible constitutional alternative to following
the constitutional mandate [requiring a certain level of edu-
cational funding]."

Pendleton II, 347 Or at 32-22 (summarizing outcome in
Pendleton I). Petitioners assert that the foregoing sentence is
a misstatement of a part of the holding in Pendleton I, and
that it should be revised.

Petitioners are correct. The challenged sentence
does inadvertently misstate a part of the court's holding in
Pendleton I. We therefore withdraw the sentence and insert
in its place the sentence set out below. The substituted sen-
tence is not the precise one requested by petitioners, but we
believe that it preserves the legal point that they make.

The substituted sentence is as follows:

"However, the court also ruled that the provision in Article
VIII, section 8, contemplating a report from the legislature
explaining its failure to fund education at the required level
(when and if that was the case) prevented the court from
enjoining the legislature to provide the constitutionally
mandated level of funding."

See Pendleton I, 345 Or at 611 (declaration or injunction of
kind sought by petitioners "would not be consistent with the
reporting requirement").

The petition for reconsideration is allowed. The for-
mer opinion is modified and adhered to as modified.