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IN THE SUPREME COURT OF THE STATE OF OREGON

OREGON TRUCKINGASSOCIATIONS, INC., an Oregon nonprofit corporation; AAA OREGON/IDAHO, an Oregon nonprofit corporation; OREGON-COLUMBIA CHAPTER OF THE ASSOCIATION; REDMOND HEAVY HAULING; GORDON WOOD INSURANCE & FINANCE; PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA; NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES; and OREGON MUTUAL INSURANCE COMPANIES,

Plaintiffs-Respondents,Petitioners on Review,

v.

DEPARTMENT OF TRANSPORTATION and DEPARTMENT OF ADMINISTRATIVE SERVICES,

Defendants-Appellants, Respondents on Review.

Marion County CircuitCourt No. 12c16207

Appellate Court No. A157244

S

PETITION FOR REVIEW

Petition for Review of the decision of the Court of Appeals on Appealfrom the judgment of the Circuit Court for Marion County

Opinion Filed: November 15, 2017Author of Opinion: Duncan, J., pro tempore

Concurring Judges: DeVore, P.J., James, J.

PETITIONERS ON REVIEW INTEND TO FILE A BRIEF ON THE MERITSDecember 2017

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Gregory A. Chaimov, OSB #822180Email: gregorychaimov@dwt.comDavis Wright Tremaine LLP1300 SW 5th Ave, Ste 2400Portland, Oregon 97201Telephone: 503-778-5328Facsimile: 503-778-5299

Attorneys for Plaintiffs-Respondents, Petitioners on Review

Ellen F. Rosenblum, OSB #753239Attorney GeneralEmail:ellen.f.rosenblum@doj.state.or.usBenjamin Gutman, OSB #160599Email: benjamin.gutman@doj.state.or.usRolf C. Moan, OSB 924077Senior Assistant Attorney GeneralEmail: rolf.moan@doj.state.or.usDOJ Appellate Division1162 Court St., NESalem, OR 97301Telephone: 503-378-4402Facsimile: 503-378-6306

Attorney for Defendants-Appellants, Respondents on Review

Roy Pulvers, OSB No. 833570Email: roy.pulvers@hklaw.comGarrett S. Garfield, OSB #093634Email: garrett.garfield@hklaw.comNellie Q. Barnard, OSB #122775Email: nellie.barnard@hklaw.comHOLLAND & KNIGHT LLP2300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300Facsimile: 503-241-8014

Louis A. Santiago, OSB No. 783610SANTIAGO LAW FIRM, LLC9220 SW Barbur Blvd., Ste 119-284Portland OR 97219Telephone: 503-380-5320Email: Louis.Santiago@santiagolawnw.com

Attorneys for Amicus Curiae NICUSA

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TABLE OF CONTENTSPage

PETITION FOR SUPREME COURT REVIEW.................................................1

I. HISTORICAL AND PROCEDURAL FACTS RELEVANT TO REVIEW....................................................................................................1

A. Historical Facts: The Challenged Transaction.................................1

B. Procedural Facts: The Proceedings Below.....................................4

II. LEGAL QUESTIONS PRESENTED AND PROPOSED RULES OF LAW.....................................................................................................5

III. IMPORTANCE OF THE LEGAL QUESTIONS......................................6

A. This case presents new and important issues of statutory, common law, and constitutional construction in the context of an important government action......................................................6

B. This case presents issues overlapping those already pending in this Court..........................................................................................9

C. This case meets additional criteria for review...............................10

IV. HOW THE COURT OF APPEALS ERRED..........................................11

A. The Court of Appeals misread ORS 366.395(1)............................11

B. The executive branch may not self-deal with trust assets..............12

V. CONCLUSION........................................................................................16

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TABLE OF AUTHORITIES

Page

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PETITION FOR SUPREME COURT REVIEW

Plaintiffs-Respondents (“Plaintiffs”) petition this Court to review the

decision of the Court of Appeals in Oregon Trucking Associations, Inc. v.

Department of Transportation, 288 Or App 822, ___ P3d ___ (2017)

(“Decision”). A copy of the Decision is attached to this Petition.

I. HISTORICAL AND PROCEDURAL FACTSRELEVANT TO REVIEW

A. Historical Facts: The Challenged Transaction

The Legislative Assembly requires The Department of Transportation

(“ODOT”) to maintain records containing information about drivers. ORS

802.200. The Legislative Assembly also requires ODOT to make “personal

information” from driver records available for a variety of uses, including to

businesses that acquire and distribute the personal information in large volumes.

ORS 802.179(13). ODOT fulfilled this obligation by establishing the Real-

Time Access to Driver Records program, which provided an electronic

government portal for real-time access to the personal information. Chaimov

Dec., ¶ 2, Ex. 1.

The Department of Administrative Services (“DAS”) wanted to improve

the State’s websites and lit upon sales of personal information in driver records

as the source to pay for the improvements. DAS obtained the statutory

authority to collect a “convenience fee” for “state agencies” providing

information through an electronic government portal. ORS 182.132(3)(a).

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There were, however, two impediments to DAS’s plan to collect a convenience

fee for access to the personal information in ODOT’s driver records. First, the

Legislative Assembly has limited the amount ODOT may charge for providing

access to personal information to the “actual cost in making [the] personal

information available[.]” ORS 802.183(1). ODOT could not, therefore, fund

improvements in websites by collecting a convenience fee or otherwise raising

the price of electronic access to personal information.

Second, even if ODOT could charge more than ODOT’s cost for

providing access to personal information through an electronic government

portal, the revenues from providing access are assets of the Highway Trust

Fund and may not be used to improve other agencies’ websites. See Op Atty

Gen 6329, 1989 WL 439832, p. 1 (June 16, 1989) (proceeds from sales of

information in records “accrue to the Highway [Trust] Fund and are

constitutionally dedicated to highway purposes”).

To circumvent these problems, ODOT and DAS devised a transaction to

take the right to provide electronic access to personal information out of the

Highway Trust Fund. First, ODOT provided itself the ability to transfer the

right to provide access by declaring the right to be surplus property under

ORS 366.395(1).1 ODOT determined that, because ODOT could not profit

1 See 38 Op Atty Gen 890, __ (1977) (referring to ORS 366.395 as “surplus property” statute”).

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from the right to provide electronic access, the right was “no longer needed,

required or useful for department purposes”:

“Unlike DAS, ODOT has not been authorized by the legislature to charge a “convenience fee” for providing convenient electronic access to services or records; its statutory ability to charge for access to driver records was more limited. Thus, unlike DAS, ODOT was not in a position to profit from the right to provide electronic access on its own.” Declaration of ___ McClellan, ¶29; _____.

Typically, ODOT maximizes the return to the Highway Trust Fund by

putting a surplus trust asset up for bid. Obtaining the best possible return for

the Highway Trust Fund occurs whether the trust asset is real property, OAR

734-035-0120(1) (ODOT accepts “most advantageous bid”), or personal

property, see ORS 279A.280(1)(a) (providing limited list of surplus properties

that may be sold without competitive bid).

Instead of putting the right to provide electronic access up for bid, ODOT

conveyed the right directly to DAS. _____________. Instead of setting a price

for the right that would provide the best possible return for the Highway Trust

Fund, DAS asked another representative of the executive branch of state

government, a professor at Portland State University, to “determine the fair

value” for DAS to pay ODOT. __________. The “fair value” the professor

determined did not take into account the trust nature of Highway Trust Fund

assets. The price determined to be “fair” simply represented the “average

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price” (weighted for population) charged by other states that provide electronic

access to their records. Valuation of Fair Value of DMV Records, p. 17;

Correspondence from Tom McClellan to Wally Rogers, May 7, 2013; Chaimov

Dec., ¶ 11, Ex. 9.

DAS then transferred the right to provide electronic access to personal

information to a private entity that, in return, (1) pays DAS the “fair value”

DAS pays over to ODOT, and (2) provides the State with improved websites.

___. The private entity is able to provide the improved websites by charging

purchasers the statutorily authorized “convenience fee” on top of the “fair

value” DAS pays to ODOT. Businesses like Plaintiffs that used to be able to

obtain personal information through ODOT’s Real-Time Access to Driver

Records program for $2 per record, now pay almost $10 per record. ___.

B. Procedural Facts: The Proceedings Below

Plaintiffs brought this action under the Uniform Declaratory Judgments

Act. The trial court decided the case on cross-motions for summary judgment,

entering a judgment in favor of Plaintiffs that declared:

1. ODOT lacked the authority to transfer the right to provide

electronic access to DAS; and

2. The gain DAS receives in exchange for the right to provide

electronic access is an asset of the Highway Trust Fund. ER-___.

The trial court then stayed the judgment pending appeal. Dkt. __.

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The Court of Appeals reversed the trial court’s judgment and remanded

the case to the trial court to direct Plaintiffs to bring DAS’s contractor into the

case, and then to enter a judgment declaring lawful ODOT’s transfer of the

right to provide access and DAS’s use of DAS’s gain for other than trust

purposes. 288 Or App at 835.

II. LEGAL QUESTIONS PRESENTED ANDPROPOSED RULES OF LAW

First Question Presented:

Does ODOT’s inability to profit from the use of an asset of the Highway

Trust Fund permit ODOT to treat the asset as surplus property, i.e. “no longer

needed, required for department purposes” under ORS 366.395(1)?

Proposed Rule of Law:

No. The inability to profit from the use of an asset of the Highway Trust

Fund does not permit ODOT to treat the asset as “no longer needed, required

for department purposes” under ORS 366.395(1).

Second Questions Presented:

Does DAS owe the obligations of a trustee to the beneficiaries of the

Highway Trust Fund?

Proposed Rule of Law:

Yes, as a constituent agency of the executive branch, DAS owes the

obligations of a trustee to the beneficiaries of the Highway Trust Fund.

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ODOT’s conveying an asset of the Highway Trust Fund to DAS does not cause

DAS to take the asset free of trust obligations.

Third Questions Presented:

What are the terms under which DAS may acquire an asset of the

Highway Trust Fund?

Proposed Rule of Law:

DAS may not acquire a Highway Trust Fund asset free of trust

obligations because the transaction would constitute a breach of loyalty to the

beneficiaries of the Highway Trust Fund. If DAS could acquire a Highway

Trust Fund asset, any gain from use of the asset would belong to the Highway

Trust Fund.

III. IMPORTANCE OF THE LEGAL QUESTIONS

A. This case presents new and important issues of statutory, common law, and constitutional construction in the context of an important government action

This case presents for the first time the issue of the nature of the

executive branch of state government and its constituent entities: When the

Legislative Assembly declares assets to be held in trust, are the obligations of a

trustee owed solely by a specific agency within the executive branch or by the

entire branch? The answer to that question leads to a second issue of first

impression: the scope of the State’s authority as trustee of a statutory trust to

enter into a self-dealing transaction with the assets of the trust.

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The assets of the Highway Trust Fund are “held as a trust,” ORS

366.505(2), with uses dedicated to highway purposes. Or Const Art IX, §3a.

ODOT transferred a trust asset to DAS, which then transferred the asset for

more than DAS paid ODOT for the asset—a gain DAS kept rather than return

to the Highway Trust Fund. This case challenges the lawfulness of the

transaction between ODOT and DAS and DAS’s ability to retain the gain DAS

obtained from the trust asset.

In broad outlines, this case involves a situation this Court has dealt with

before: the State’s taking assets from a trust fund to pay for general

government services. E.g., Eckles v. State of Oregon, 306 Or 380, ___, 760 P2d

846 (1988), appeal dism’d, 490 US 1032, 109 S Ct 1928, 104 L Ed 2d 400

(1989) (State unlawfully transferred moneys from trust fund to General Fund).

This case differs from most previous cases about statutory trust funds,

because, in those previous cases, the action the State took was to change the

terms of the trust. Eckles, 306 Or at ___ (statutory change); Tillamook Co . v .

State Board of Forestry , 302 Or 404 , 413-14, 730 P2d 1214 ( 1986 ) (statutory

change); Arken v. City of Portland, 351 Or 113, ___, 263 P3d 975, adhered to

on recons, 351 Or 404, 268 P3d 567 (2011) (agency order).2 Here, the case

involves the scope of the obligations the State owes when the State deals with

the trust for itself. 2 This case does not involve a change to the terms of a trust because the Legislative Assembly declined the Governor’s request to amend the law to change the terms of the Highway Trust Fund. 2011 House Bill 2064 (App-1).

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Occasionally, an Attorney General has addressed the circumstances

under which ODOT may dispose of property as surplus. 35 Op Atty Gen 56

(1970) (donation of park property to federal agency for inclusion in national

monument). This Court, however, has never addressed the scope of ODOT’s

authority to dispose of Highway Trust Fund assets. ODOT’s power to dispose

of Highway Trust Fund assets is important for this Court to address because the

Highway Trust Fund is one of the State’s largest collections of trust assets:

roughly $2 billion in assets. Annual Financial Report, p. vii (ODOT Dec 31,

2016), http://www.oregon.gov/ODOT/About/Finance/2016AFR.pdf. Because

ODOT disclaims any obligation “to seek to increase the highway fund,”

McClellan Dec., ¶29, Dkt. __, all assets in the Highway Trust Fund are at risk

of disposal. Thus, there are $2 billion in trust assets at risk of being disposed of

as surplus upon ODOT’s determination that ODOT cannot profit from the

assets.

No Oregon court has addressed whether, for a statutory trust in general or

the Highway Trust Fund in particular, the obligations of a trustee apply to the

entire executive branch or just specific agencies within the executive branch.

Regardless of whether this Court addresses the broader or narrower issue, the

answer will inform the scope of obligations applicable to the many other

statutory trust funds—trust funds as diverse as the Disabilities Trust Fund, the

Health Care Trust Fund, the Police Memorial Trust Fund, and the

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Unemployment Compensation Trust Fund. Whether this Court addresses

statutory trust funds under common law trust principles or evaluates the nature

of the executive branch under Oregon’s constitution, the result of the analysis

will necessarily apply to all other statutory trust funds. If this Court does no

more than interpret which agencies the Legislative Assembly designated as

trustees of the Highway Trust Fund, the method of analysis will, at a minimum,

provide valuable guidance for the analysis of the statutes creating the other trust

funds.

Even though the issues the Petition raises have not arisen often, a

decision on the issues is important to the public. If the transaction stands,

ODOT and DAS will have created a model for any other trustee to transfer

assets out of trust to another agency for use for non-trust purposes. Addressing

the issues the Petition raises will eliminate the model before another trustee

makes us of it.

B. This case presents issues overlapping those already pending in this Court

If granted, Plaintiffs’ Petition would put before this Court a second case

on the issue of the nature and scope of the Highway Trust Fund. This Court

already has before it AAA Oregon/Idaho Auto Source, LLC v. State of Oregon,

Supreme Court Case No. S065394 (petition filed Nov. 3, 2017). That case

presents the issue of whether revenues from a particular tax become part of the

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Highway Trust Fund. By granting Plaintiffs’ Petition, this Court would have

before it the opportunity to address both sides of the Highway Trust Fund: the

requirements for an asset to enter the Highway Trust Fund and the requirements

for an asset to exit the Highway Trust Fund.

C. This case meets additional criteria for review.

The case was decided on summary judgment, so the issues are purely

legal, without disputed issues of fact. The legal issues are properly preserved:

the trial court did not issue an opinion, but the issues the Petition raises are the

issues the Court of Appeals addressed.

The issues cannot be addressed by legislation. As noted on page 7, the

Legislative Assembly declined to adopt the law DAS requested; the challenged

transaction proceeded anyway. The issues cannot be addressed by rulemaking

because the questions raised are statutory and constitutional.

An amicus curiae, the private party with which DAS contracted to obtain

the improved websites, appeared in the Court of Appeals. The only factor that

might militate against review is the additional issue of the absence in the trial

court of DAS’s contractor. Although the agreement between ODOT and DAS

expressly disclaimed third-party rights, the Court of Appeals concluded that the

private party should have been joined in the action. 282 Or App at ___.

Absence from the trial court did not, however, adversely affect the private

party’s rights. The Court of Appeals determined that ODOT and DAS, whose

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interests were aligned with those of the private entity, adequately protected the

private party’s rights. As a result, the only action required with respect to the

private party, regardless of the outcome of review by this Court, is Plaintiffs’

bringing the private party into the case prior to entry of judgment on remand.

IV. HOW THE COURT OF APPEALS ERRED

Two fundamental errors of analysis led the Court of Appeals to the

wrong conclusion. The first error was the (apparent) failure to consider the

surplus property statute, ORS 366.395(1), in the context of other statutes that

govern ODOT’s (and other agencies’) authority to convey assets out of trust.

The second error was to rely on a proposition of trust law that no party cited

and that, by its terms, does not apply to this case.

A. The Court of Appeals misread ORS 366.395(1)

ORS 366.395(1) authorizes ODOT to “dispose or permit use of * * *

personal property * * *which * * *is, in the opinion of the department, no

longer needed, required or useful for department purposes[.]” Based on this

standard, the Court of Appeals ruled ODOT was free to convey out of trust an

asset ODOT was using—providing access through an electronic government

portal—but from which ODOT could not make a profit. 282 Or App at 831.

There are two problems with this portion of the Decision. First,

examining the prerequisites for action in ORS 366.395(1) in the context of

prerequisites for action in related laws (an examination the Court of Appeals

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appears not to have undertaken) shows the absence of the ability to profit from

an asset does not make the asset “no longer needed, required for department

purposes[.]” Some laws permit an agency to take action with a trust asset when

the agency can achieve a greater return for the trust fund by conveying the

asset. For example, ORS 366.337 authorizes ODOT to exchange certain real

property when ODOT can obtain “equal or superior useful value[.]” For trust

funds generally, ORS 273.416 authorizes the exchange of a trust asset if the

asset to be acquired is of “equal or superior useful value.” These statutes show

the Legislative Assembly recognizes a difference between, on the one hand,

loss of “useful[ness]” or “need[],” and on the other hand, the ability to gain

from an asset. The absence of profit, therefore, does not mean lack of

usefulness or need. If the Legislative Assembly intended for ODOT to be able

to transfer an asset because ODOT could not obtain “superior value” for the

asset, the Legislative Assembly could and would have said so.

B. The executive branch may not self-deal with trust assets

The Court of Appeals next rejected Plaintiffs’ contention that, even if

ODOT lacked the statutory authority to profit from providing electronic access

to personal information, ORS 183.132 provides DAS the statutory authority to

provide the profit to the Highway Trust Fund, and, under trust principles, is

required to use that statutory authority to benefit the Highway Trust Fund rather

than to benefit DAS. White v. Public Employees Retirement Board, 315 Or

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426, 444, 268 P3d 600 (2011) (trustee of statutory trust owes obligation “to act

in the best interests of the beneficiaries”; citation omitted).

The Court of Appeals assumed DAS owes the beneficiaries of the

Highway Trust Fund the obligations of a trustee, but concluded the obligations

do not include looking out for the best interests of the beneficiaries. The Court

of Appeals relied on Comment c(7) to Restatement (Third) of Trusts

(“Restatement”) §78(1) and (2), which sanctions a “transaction * * * [that is]

consistent with the purposes of each fiduciary relationship and for a

consideration that is fair to the beneficiaries of the relationships.” Because

DAS pays ODOT the price an employee of the executive branch said was

“fair,” DAS’s realizing a gain for itself (instead of for the Highway Trust Fund)

was permissible. 282 Or App at 832.

The key problem with the Court of Appeals’ reliance on Comment c(7),

which no party raised, is that the kind of transaction Comment c(7) covers is a

different kind of transaction from the transaction between ODOT and DAS.

The transaction Comment c(7) addresses is between two trusts for which the

same person serves as trustee. In that situation, “fair” is an appropriate standard

for evaluation of the transaction because the trustee does not gain from the

transaction.

The rule, however, is different when a person deals with a trust for which

the person serves as trustee.” Restatement §78(2) provides:

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“Except in discrete circumstance, the trustee is strictly prohibited from engaging in transactions that involve self-dealing or that otherwise involve or create a conflict between the trustee’s fiduciary duties and personal interests.

Then Attorney General Kulongoski made this specific point with respect

to the Public Employee Retirement Board and the Public Employee Retirement

Fund:

“[A] trustee may not, consistent with the duty of loyalty, appropriate trust assets for the trustee’s use, engage in self-dealing either in the trustee’s own interest or the interests of third parties, commingle trust funds with other funds, compete with the trust or engage in any activity involving trust assets that is not for the exclusive benefit of the beneficiaries.” 46 Op Atty Gen 506, 509 (1993).

There are exceptions to the rule against self-dealing; however, those

exceptions expressly omit the exception on which the Court of Appeals relied.

According to Comment d to Restatement §78(2), the exceptions to the ban on

self-dealing are found in “Comments c(4) – c(6) or c(8)”—not c(7). The

exceptions, which involve unique transactions, such as the trustee’s depositing

trust funds in a “regulated financial-services institution” with which the trustee

is affiliated, Comment c(6), do not apply here.

As a result, “fair[ness]” does not play a role in whether a trustee’s own

transaction with a trust is lawful. According to Comment b to Restatement

§78(1) and (2):

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“[I]t is immaterial that the trustee may be able to show that the action in question was taken in good faith, that the terms of the transaction were fair, and that no profit resulted to the trustee. A trustee, therefore, commits a breach of trust by purchasing trust property, even as the highest bidder at a public auction; otherwise the possibility of purchase by the trustee would create a temptation for the exercise of less than the trustee’s best efforts and business judgment on behalf of the trust to determine whether the sale is appropriate and to obtain the most favorable price and terms from others for the trust property.”

Thus, if DAS, like ODOT, is a trustee of the Highway Trust Fund, DAS cannot

take the right to provide electronic access for itself, or, if DAS can, DAS must

provide any gain to the Highway Trust Fund.

After assuming DAS is a trustee, the Court of Appeals then assumed

DAS is not a trustee. Basing its decision on a Court of Appeals decision that

involved the transfer of a Highway Trust Fund asset to a private party, Nortman

v. City of Portland, 90 Or App 520, 522, 752 P2d 1272 (1987), the Court of

Appeals concluded that “once the license was sold to DAS, it was no longer a

part of the highway fund[.]” 282 Or App at 834.

Whatever the merits of Nortman, neither Nortman nor any other case

stands for the proposition that a transfer of a trust asset from one agency of the

executive branch to another removes the trust nature of the asset. First, the

Legislative Assembly does not designate any specific agency as the trustee of

the Highway Trust Fund. ORS 366.505(2) is a general declaration of a trust.

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Cf. 537.341 (designating Water Resources Department as public’s “trustee” of

certificates for in-stream water rights). Thus, the Legislative Assembly must

intend, at a minimum, for the executive branch as a whole to owe the

obligations of a trustee.

Second, agencies of the executive branch are not independent actors.

ODOT and DAS, like the other agencies within the executive branch, are under

the control of a single decision-maker: the Governor. Or Const Art V, §1

(“The cheif [sic] executive power of the State, shall be vested in a Governor”);

25 Op Atty Gen 139, ___ (1951) (“The executive department is under the

control of the governor”). See also Frohnmayer v. SAIF, 294 Or 570, 660 P2d

1061 (1983) (trust nature of the Industrial Accident Fund did not permit SAIF

Corporation to hire counsel to assert legal position different from position of

State as a whole). This unitary nature of the executive branch means the

executive branch cannot remove an asset from trust by transferring the asset

between constituent entities.

V. CONCLUSION

The tenor of the Court of Appeals opinion suggests Plaintiffs should not

complain about a transaction that brings into the Highway Trust Fund more

money than if the transaction had not occurred. 282 Or App at 827 (noting

amount ODOT will receive from DAS). To be sure, this case is, in part, about

money. The gain ODOT receives is not as much as DAS receives from the very

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same asset ODOT conveyed to DAS. DAS’s gain should, therefore, go to the

Highway Trust Fund. More fundamentally, no transaction, if unlawful, is worth

even the largest financial gain. That is the essence of a trustee’s duty of loyalty

and the ultimate importance of this case and Plaintiffs’ Petition.

Dated this 20th day of December, 2017.

Respectfully submitted,

DAVIS WRIGHT TREMAINE LLP

By: s/GREGORY A. CHAIMOVGregory A. Chaimov, OSB #822180gregorychaimov@dwt.comDavis Wright Tremaine LLP1300 SW 5th Ave, Ste 2400Portland, Oregon 97201Telephone: 503-778-5328Facsimile: 503-778-5299

Attorneys for Plaintiffs-Respondents, Petitioners on Review

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CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS

Brief length

I certify that (1) this brief complies with the word-count limitation in

ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP

5.05(2)(a)) is [not to exceed 10,000] words.

Type size

I certify that the size of the type in this brief is not smaller than 14 point

for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

s/ Gregory A. Chaimov Gregory A. Chaimov, OSB #822180

Attorneys for Plaintiffs-Respondents, Petitioners on Review

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on the 20th day of December, 2017, I filed the foregoing PETITION FOR REVIEWwith the State Court Administrator by using the court’s electronic filing system, and that I served the same on:

[Click Here and Type], OSB #[Type Bar #][Address]Telephone: [Click Here and Type][Email address]

by mailing two copies thereof in a sealed, postage prepaid envelope, certified by me as such, placed in a sealed envelope addressed to them at the address set forth, and deposited in the United States Post Office at Portland, Oregon, on the 20th day of December, 2017, with the postage prepaid.

s/ [Type Atty Name] [Type Atty Name], OSB #[Bar #]

Attorneys for Appellant

I hereby certify that on the 20th day of December, 2017, I filed the original of the foregoing PETITION FOR REVIEW by using the court’s electronic filing system; I served the same on:

[Type Atty Name], OSB #[Bar #][Address]Telephone: [Click Here and Type][Email address]

by using the court’s electronic filing system; and I served:

[Type Atty Name], OSB #[Bar #][Address]Telephone: [Click Here and Type][Email address]

by first class mail, postage prepaid.

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Dated this 20th day of December, 2017.

s/ Gregory A. Chaimov Gregory A. Chaimov, OSB #82218-Of Attorneys for Plaintiffs-Respondents,

Petitioners on Review

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