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Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 22714-6-III
Title of Case: Don Delagrave v. Department of Employment Security
File Date: 05/10/2005
SOURCE OF APPEAL
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Appeal from Superior Court of Grant County
Docket No: 03-2-00012-1
Judgment or order under review
Date filed: 12/19/2003
Judge signing: Hon. Evan E Sperline
JUDGES
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Authored by John A. Schultheis
Concurring: Frank L. Kurtz
Dissenting: Stephen M Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Darrell K. Smart
Smart Law Offices PS
501 N 2nd St
Yakima, WA 98901-2309
Counsel for Defendant(s)
Tomas S. Caballero
Attorney General of Washington
18 S Mission St 3rd Fl
Wenatchee, WA 98801-2203
Counsel for Respondent(s)
Tomas S. Caballero
Attorney General of Washington
18 S Mission St 3rd Fl
Wenatchee, WA 98801-2203
No. 22714-6-III
BROWN, J. (dissenting) I agree the common fund doctrine does not apply
here. I part company with the majority in its equitable reasoning and
result because Don Delagrave did not seek an 'equity and good conscience'
waiver under RCW 50.20.190(2). Further, Mr. Delagrave did not present any
personal hardship information during the administrative process. Mr.
Delagrave concedes he received overlapping benefits.
Mr. Delagrave came here seeking reimbursement for attorney fees he paid in
securing Department of Labor and Industries (L&I) benefits solely under a
common fund theory, nothing more. Because no attorney fees are statutorily
recoverable in either the L&I or unemployment compensation contexts before
us, it is difficult to envision how the payment of attorney fees alone can
support an unjust enrichment or a hardship equitable recovery. Mr.
Delagrave contends public policy supports his argument for proportionate
payment of his attorney fees. But policy making is a legislative function,
not a judicial function. Jones v. Jones, 48 Wn.2d 862, 868-69, 296 P.2d
1010 (1956). The legislative policy expressed in the relevant statutes
does not allow for attorney fees under these facts.
I would, like the superior court, hold that the commissioner did not err in
rejecting Mr. Delagrave's request for attorney fees, and affirm.
Accordingly, I respectfully dissent.
Brown, J.
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