FILED: November 27, 2009

IN THE SUPREME COURT OF THE STATE OF OREGON

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)

En Banc

On petitioners' petition for reconsideration of opinion regarding attorney fees and costs.*

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

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

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

PER CURIAM

Petitioners seek reconsideration of this court's opinion 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 characterized 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 educational 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 sentence 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 former opinion is modified and adhered to as modified.


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