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NO.

87837-4
SUPREME COURT OF THE STATE OF WASHINGTON

LINDA JORDAN, Appellant,

ANSWER TO MOTION TO MODIFY CLERK'S RULING ON ATTORNEY FEES

v.
KIM WYMAN, Secretary of State of the State of Washington, Respondent.

I.

INTRODUCTION

This Court dismissed this appeal as frivolous and awarded a sanction in the amount of reasonable attorney fees in favor of Respondent, Secretary of State Sam Reed.! Order (Dec. 5, 2012). This Court further directed the clerk to determine the amount of fees. The Secretary filed a declaration detailing the claim for fees, totaling $12,675. Declaration of Jeffrey T. Even Detailing Request for Attorneys' Fees (Even Decl.). The clerk entered a ruling granting the Secretary's request in full. Ruling Setting the Awards for Attorney Fees (Ruling) at 3. Ms. Jordan moves to modify the clerk's ruling, asking for a reduced attorney fees award. The number of attorney hours for which the Clerk's

1 Secretary of State Kim Wyman was later substituted as Respondent in this matter, by notation ruling dated February 6, 2013.

Secretary requested compensation was reasonable because the Secretary minimized the number of hours by successfully seeking early dismissal before filing briefs on the merits. Those hours were also reasonable in light of Ms. Jordan's actions that multiplied the scope of work necessary during the brief pendency of this appeal. The hourly rate accurately

reflects the market value of counsel's time. The clerk should decline to adjust the awarded amount, and if presented with the issue, the Court should deny the motion to modify.
II. A SUBSTANTIAL SANCTION IS NECESSARY TO DETER BASELESS FILINGS

The purpose of imposing sanctions for a frivolous appeal "is to deter baseless filings and to curb abuses of the judicial system." Bryant v.
Joseph Tree, Inc., 119 Wn.2d 210,219, 829 P.2d 1099 (1992) (discussing

CR 11; emphasis omitted).

This Court has determined Ms. Jordan's

appeal to be frivolous, and determined an award of "reasonable attorney fees" to be the appropriate measure of the sanction. Order. The clerk awarded reasonable attorney fees, and neither the clerk nor the Court should now modify that award. When a court determines that the appropriate sanction is an award of attorney fees it should award the full amount caused by the sanctionable conduct. See Biggs v. Vail, 124 Wn.2d 193,201-02,876 P.2d 448 (1994).

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In this case, such an award is necessary in order to deter similar future conduct. Ms. Jordan pursued this appeal despite being placed on notice by both the trial court and Respondent's counsel that there was no basis for doing so. The trial court found that Ms. Jordan "cannot have been

unaware" of the numerous prior decisions rejecting challenges to the President's qualifications. 2 CP 13. Ms. Jordan additionally received

warning from Respondent's counsel. Declaration of Even in Support of Motion for Attorney's Fees, Ex. A. Ms. Jordan not only decided to proceed in disregard of these warnings, but the record contradicts her assertion that "there is no claim she acted in bad faith or [with] malicious intent." Motion to Modify at 3. Ms. Jordan repeatedly lodged reckless allegations of "collusion" between the superior court judge and the Secretary's counsel. See Respondent's Motion for Attorney Fees at 6-9. Ms. Jordan did so despite possessing information demonstrating her conspiratorial allegations to be unfounded.
Id. at 8-9; see also Respondent's Reply in Support of Motion for

Attorney's Fees at 3-5.
2 See, e.g., Rhodes v. MacDonald, 670 F. Supp.2d 1363, 1382 (M.D. Ga. 2009) (imposing $20,000 sanction against attorney who had challenged deployment of an army officer to Iraq based on the notion that the qualifications of the commander-in-chiefwere in doubt); Hollister v. Soetoro, 601 F. Supp. 2d 179, 180 (D.D.C. 2009) (describing a challenge to the President's qualifications as a case that, "if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do"); Liberty Legal Foundation v. National Democratic Party of the USA, 2012 WL 3683492, *1 (W.D. Tenn. 2012) (imposing sanctions based on contention that the President is not a natural-born citizen).

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Ms. Jordan continued to assert frivolous claims even when no reasonable person could believe them to be meritorious. This

demonstrates that a sanction in the form of all attorney fees necessitated by her conduct is warranted in order to achieve the objective of deterring future similar conduct. See Biggs, 124 Wn.2d at 201-02; Bryant, 119 Wn.2d at 219.
III. THE ATTORNEY FEES AWARDED BY THE CLERK IMPOSE A REASONABLE SANCTION AGAINST MS. JORDAN FOR PURSUING THIS FRIVOLOUS APPEAL

The clerk set the amount of the attorney fee award using the lodestar method, under which the award is determined by multiplying the reasonable hourly rate by the number of hours reasonably expended by the prevailing party. Ruling at 2 (citing Bowers v. Transamerica Title Ins.
Co., 100 Wn.2d 581, 593-94, 675 P.2d 193 (1983). The clerk found both

the number of hours and the hourly rate claimed to be reasonable. Id. at 3. Ms. Jordan challenges both findings.
A. The Number Of Attorney Hours Expended On This Appeal Reflects Ms. Jordan's Actions, Which Multiplied The Burden Upon The Court And Counsel

"Under the lodestar methodology, a court must first determine that counsel expended a reasonable number of hours in securing a successful recovery for the client." Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998). Ms. Jordan argues, in essence, that the frivolous nature of her

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appeal was so obvious that the Secretary should have secured its dismissal "within two hours, with time to spare." Motion to Modify at 6-7. But just because claims are frivolous "it does not follow that such claims are simply and quickly disposed of." Reid v. Dalton, 124 Wn. App. 113, 127, 100 P.3d 349 (2004). And Ms. Jordan's argument leads to the absurd result that the more clearly frivolous a case is, the lower the sanction for pursuing it. Moreover, Ms. Jordan's argument ignores the fact that the Secretary minimized the amount of attorney fees incurred by promptly seeking dismissal of this appeal, and that her own filings increased the burden on this Court and counsel. The Secretary promptly sought dismissal of this appeal by moving to terminate the appeal in the body of the Answer to the Statement of Grounds for Direct Review. The Secretary filed that pleading on October 3,2012, less than a month after Ms. Jordan filed her notice of appeal. The Secretary's action eliminated the need for either side to incur expenses in briefing or arguing this case. Ms. Jordan's contention that counsel expended unnecessary hours in defense of her appeal ignores her own actions in multiplying the scope of this litigation. Ms. Jordan's actions included:

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1. Filing a Motion for Accelerated Review (filed Sept. 19,2012). This Court called for a response, which the Secretary filed on September 24,2012. This Court denied the motion on September 25,2012. 2. Filing a Motion to Correct Errors and Accept Additional Evidence (filed Sept. 21, 2012). This Court called for a response, which the Secretary filed on September 28, 2012. This motion related to a

disorganized and repetitious body of documents, entailing several hours of attorney time simply to determine what materials were at issue. See

Declaration of Even in Opposition to Motion to Correct Errors and Accept Additional Evidence, ,-r 3. 3. Serving a request for admissions (filed Nov. 2, 2012). This Court struck Ms. Jordan's attempt to engage in discovery at the appellate level three days after it was filed, but not before counsel reviewed Ms. Jordan's materials and drafted a motion to strike. Even Decl, Ex. A at 2. Ms. Jordan's conduct increased the attorney hours devoted to this appeal. A reasonable determination accordingly must reflect all of the hours necessitated by her actions.

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B.

The Hourly Rate Approved By The Clerk Reflects The Reasonable Value of Attorney Services

The second component of a lodestar calculation

IS

counsel's

reasonable hourly rate. Bowers, 100 Wn.2d at 597. Ms. Jordan contends that the state's internal billing, from the Attorney General to client agencies, should form the basis for this calculation. 3 The COUli of

Appeals has previously rejected a litigant's proposed rule that a court's award of attorney fees as a sanction for pursuing a frivolous action is limited solely to an amount that reimburses the prevailing party for bills actually paid by the client. Reid, 124 Wn. App. at 127-28. Instead, this Court has explained that the determination of a reasonable hourly rate "is grounded specifically in the market value of the ... lawyer's services."
Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 150, 859 P.2d 1210 (1993)

(emphasis added); Collins v. Clark Cy Fire Dist. No.5, 155 Wn. App. 48, 99, 231 P.3d 1211 (2010) ("A reasonable hourly rate reflects the market value ofthe attorney's services."). The Attorney General's system for billing client agencies for legal services differs from the private sector attorney-client relationship. In

many cases, an attorney's established rate for billing clients may provide a
3 Ms. Jordan seems to rely for this proposition upon Fisher Properties, Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 798 P.2d 799 (1990). The issue in that case, however, was merely whether the market value of legal services should be based upon historic rates, applicable when the services were provided, or current rates as of the date of the award. Id. at 378.

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reasonable basis for assessing attorney fees, but it is not "conclusively a reasonable fee." Bowers, 100 Wn.2d at 597. The Attorney General does not use an established hourly billing system, as contemplated by Ms. Jordan. Rather, the Attorney Gene!al's billings are an allocation of public funds among and between treasury accounts. See RCW 43.10.160 (relating to transferring funds between and among accounts in the state treasury for legal services or administrative expenses). The Attorney

General's billings reflect an arrangement internal to state government to provide legal services at low cost. They do not represent a sound basis for assessing the sanction against Ms. Jordan.4 Ms. Jordan argues that the fees awarded by the clerk should be reduced because sometimes private sector attorneys offer their clients reduced fees. Motion to Modify at 5. Ms. Jordan does not offer any reason why she, as a party being sanctioned for pursuing a frivolous appeal, should receive the benefit of any arrangement between attorney and client to provide legal services at below market rates. Accepting

Ms. Jordan's argument would mean that an attorney who agrees to represent a client at a reduced rate, or even pro bono, would be precluded from recovering the reasonable market value of his or her services from a

4 That said, the dollar numbers asserted by Ms. Jordan's counsel as reflecting agency billing for this case accurately recite numbers provided in the telephone conversation counsel recounts. Motion to ModifY at 4.

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party bringing a frivolous action. See Council House, Inc. v. Hawks, 136 Wn. App. 153, 160, 147 P.3d 1305 (2006) (declining to give the party against whom attorney fees were awarded the benefit of counsel's agreement for pro bono representation). Similarly, Ms. Jordan should not recelve the benefit of the particular arrangement under which legal services are provided at low cost to state agencies. The task before the Court, after all, is to assess sanctions against her for pursuing frivolous litigation, and this is not limited to what was billed to the Secretary of State. Reid, 124 Wn. App. at 127-28. In other contexts, fee awards are not limited to amounts actually billed by
pro bono or public interest attorneys. See, e.g., Blair v. Washington State University, 108 Wn.2d 558, 570, 740 P.2d 1379 (1987) (calculating fees

based upon reasonable market rates, "regardless of whether the attorney is a private or nonprivate counsel"); see also Fahn v. Civil Service Comm., 95 Wn.2d 679, 685, 628 P.2d 813 (1981) (counsel's pro bono status did not preclude an award of attorney fees); Martinez v. City of Tacoma, 81 Wn. App. 228, 237, 914 P.2d 86 (1996) (counsel's agreement to provide services to client pro bono was irrelevant to award of fees against opposing party). The particular agreement for compensation between

attorney and client is for the benefit of the client; it should not work to the

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benefit of a party against whom sanctions are imposed for frivolous litigation. 5

IV.

CONCLUSION

For these reasons, this Court should deny Ms. Jordan's motion to modify. The clerk's ruling setting the attorney fees awarded as a sanction for pursuing this frivolous appeal at $12,675 should remain in effect. RESPECTFULLY SUBMITTED this 20th day of February, 2013. ROBERT W. FERGUSON Attorney General

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FFREY T. EVEN, WSBA #20367 Deputy Solicitor General 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200

5 For this reason, no question arises as to whether the fee request was properly documented to the clerk.

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CERTIFICATE OF SERVICE

I certify, under penalty of perjury under the laws of the state of Washington, that on this date I served a true and correct copy of the foregoing document, via electronic mail, on the following:

Richard B. Sanders Goodstein Law Group PLLC 501 S. G Street Tacoma, WA 98405 rsanders@goodsteinlaw.com DATED this 20th day of February, 2013, at Olympia, WA.

s/Kristin D. Jensen KRISTIN D. JENSEN Legal Assistant