Jordan v Reed/Wyman Answer to Motion to Modify Attorney Fees

7/29/2019 Jordan v Reed/Wyman Answer to Motion to Modify Attorney Fees

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NO. 87837-4SUPREME COURT OF THE STATE OF WASHINGTON

LINDA JORDAN,Appellant,

v.KIM WYMAN, Secretary of State of theState of Washington,

Respondent.

ANSWER TO MOTIONTO MODIFY CLERK'SRULING ONATTORNEY FEES

I. INTRODUCTIONThis 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 furtherdirected the clerk to determine the amount of fees. The Secretary filed adeclaration detailing the claim for fees, totaling $12,675. Declaration ofJeffrey T. Even Detailing Request for Attorneys' Fees (Even Decl.). Theclerk entered a ruling granting the Secretary's request in full. Clerk'sRuling Setting the Awards for Attorney Fees (Ruling) at 3.


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Secretary requested compensation was reasonable because the Secretaryminimized the number of hours by successfully seeking early dismissalbefore filing briefs on the merits. Those hours were also reasonable in

light of Ms. Jordan's actions that multiplied the scope of work necessaryduring the brief pendency of this appeal. The hourly rate accuratelyreflects the market value of counsel's time. The clerk should decline toadjust the awarded amount, and if presented with the issue, the Courtshould deny the motion to modify.

II. A SUBSTANTIAL SANCTION IS NECESSARYTO DETER BASELESS FILINGS

The purpose of imposing sanctions for a frivolous appeal "is todeter 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) (discussingCR 11; emphasis omitted). This Court has determined Ms. Jordan'sappeal to be frivolous, and determined an award of "reasonable attorneyfees" to be the appropriate measure of the sanction. Order. The clerkawarded reasonable attorney fees, and neither the clerk nor the Court


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In this case, such an award is necessary in order to deter similar futureconduct. Ms. Jordan pursued this appeal despite being placed on notice byboth the trial court and Respondent's counsel that there was no basis fordoing so. The trial court found that Ms. Jordan "cannot have beenunaware" of the numerous prior decisions rejecting challenges to thePresident's qualifications.2 CP 13. Ms. Jordan additionally receivedwarning from Respondent's counsel. Declaration of Even in Support ofMotion for Attorney's Fees, Ex. A.

Ms. Jordan not only decided to proceed in disregard of thesewarnings, but the record contradicts her assertion that "there is no claimshe acted in bad faith or [with] malicious intent." Motion to Modify at 3.Ms. Jordan repeatedly lodged reckless allegations of "collusion" betweenthe superior court judge and the Secretary's counsel. See Respondent'sMotion for Attorney Fees at 6-9. Ms. Jordan did so despite possessinginformation demonstrating her conspiratorial allegations to be unfounded.Id. at 8-9; see also Respondent's Reply in Support of Motion forAttorney's Fees at 3-5.


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Ms. Jordan continued to assert frivolous claims even when noreasonable person could believe them to be meritorious. Thisdemonstrates that a sanction in the form of all attorney fees necessitatedby her conduct is warranted in order to achieve the objective of deterringfuture similar conduct. See Biggs, 124 Wn.2d at 201-02; Bryant, 119Wn.2d at 219.

III. THE ATTORNEY FEES AWARDED BY THECLERK IMPOSE A REASONABLE SANCTIONAGAINST MS. JORDAN FORPURSUING THIS FRIVOLOUS APPEAL

The clerk set the amount of the attorney fee award using thelodestar method, under which the award is determined by multiplying thereasonable hourly rate by the number of hours reasonably expended by theprevailing 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 boththe 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 AppealReflects Ms. Jordan's Actions, Which Multiplied The BurdenUpon The Court And Counsel


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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 justbecause claims are frivolous "it does not follow that such claims aresimply 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 absurdresult that the more clearly frivolous a case is, the lower the sanction forpursuing it. Moreover, Ms. Jordan's argument ignores the fact that the

Secretary minimized the amount of attorney fees incurred by promptlyseeking dismissal of this appeal, and that her own filings increased theburden on this Court and counsel.

The Secretary promptly sought dismissal of this appeal by movingto terminate the appeal in the body of the Answer to the Statement ofGrounds for Direct Review. The Secretary filed that pleading on October3,2012, less than a month after Ms. Jordan filed her notice of appeal. TheSecretary's action eliminated the need for either side to incur expenses inbriefing or arguing this case.

Ms. Jordan's contention that counsel expended unnecessary hours


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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 September24,2012. This Court denied the motion on September 25,2012.

2. Filing a Motion to Correct Errors and Accept AdditionalEvidence (filed Sept. 21, 2012). This Court called for a response, whichthe Secretary filed on September 28, 2012. This motion related to adisorganized and repetitious body of documents, entailing several hours of

attorney time simply to determine what materials were at issue. SeeDeclaration of Even in Opposition to Motion to Correct Errors and AcceptAdditional 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 appellatelevel three days after it was filed, but not before counsel reviewedMs. Jordan's materials and drafted a motion to strike. Even Decl, Ex. Aat 2.

Ms. Jordan's conduct increased the attorney hours devoted to thisappeal. A reasonable determination accordingly must reflect all of the


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B. The Hourly Rate Approved By The Clerk Reflects TheReasonable Value of Attorney ServicesThe second component of a lodestar calculation IS counsel's

reasonable hourly rate. Bowers, 100 Wn.2d at 597. Ms. Jordan contendsthat the state's internal billing, from the Attorney General to clientagencies, should form the basis for this calculation. 3 The COUli ofAppeals has previously rejected a litigant's proposed rule that a court'saward of attorney fees as a sanction for pursuing a frivolous action islimited solely to an amount that reimburses the prevailing party for billsactually paid by the client. Reid, 124 Wn. App. at 127-28. Instead, thisCourt has explained that the determination of a reasonable hourly rate "isgrounded 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 marketvalue ofthe attorney's services.").

The Attorney General's system for billing client agencies for legalservices differs from the private sector attorney-client relationship. In


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reasonable basis for assessing attorney fees, but it is not "conclusively areasonable fee." Bowers, 100 Wn.2d at 597. The Attorney General doesnot use an established hourly billing system, as contemplated byMs. Jordan. Rather, the Attorney Gene!al's billings are an allocation ofpublic funds among and between treasury accounts. See RCW 43.10.160(relating to transferring funds between and among accounts in the statetreasury for legal services or administrative expenses). The AttorneyGeneral's billings reflect an arrangement internal to state government toprovide legal services at low cost. They do not represent a sound basis forassessing the sanction against Ms. Jordan.4

Ms. Jordan argues that the fees awarded by the clerk should bereduced because sometimes private sector attorneys offer their clientsreduced fees. Motion to Modify at 5. Ms. Jordan does not offer anyreason why she, as a party being sanctioned for pursuing a frivolousappeal, should receive the benefit of any arrangement between attorneyand client to provide legal services at below market rates. AcceptingMs. Jordan's argument would mean that an attorney who agrees to


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party bringing a frivolous action. See Council House, Inc. v. Hawks, 136Wn. App. 153, 160, 147 P.3d 1305 (2006) (declining to give the partyagainst whom attorney fees were awarded the benefit of counsel'sagreement for pro bono representation).

Similarly, Ms. Jordan should not recelve the benefit of theparticular arrangement under which legal services are provided at low costto state agencies. The task before the Court, after all, is to assess sanctionsagainst her for pursuing frivolous litigation, and this is not limited to whatwas billed to the Secretary of State. Reid, 124 Wn. App. at 127-28. Inother contexts, fee awards are not limited to amounts actually billed bypro bono or public interest attorneys. See, e.g., Blair v. Washington State

University, 108 Wn.2d 558, 570, 740 P.2d 1379 (1987) (calculating feesbased upon reasonable market rates, "regardless of whether the attorney isa 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 didnot preclude an award of attorney fees); Martinez v. City of Tacoma, 81Wn. App. 228, 237, 914 P.2d 86 (1996) (counsel's agreement to provide


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

IV. CONCLUSIONFor these reasons, this Court should deny Ms. Jordan's motion to

modify. The clerk's ruling setting the attorney fees awarded as a sanctionfor pursuing this frivolous appeal at $12,675 should remain in effect.

RESPECTFULLY SUBMITTED this 20th day ofFebruary, 2013.ROBERT W. FERGUSONAttorney General

/>j "FFREY T. EVEN, WSBA #20367Deputy Solicitor General1125 Washington Street SEPO Box 40100

Olympia, WA 98504-0100(360) 753-6200


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CERTIFICATE OF SERVICEI 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 theforegoing document, via electronic mail, on the following:

Richard B. SandersGoodstein Law Group PLLC501 S. G StreetTacoma, W A [email protected]

DATED this 20th day ofFebruary, 2013, at Olympia, WA.

s/Kristin D. JensenKRISTIN D. JENSENLegal Assistant

Jordan v Reed/Wyman Answer to Motion to Modify Attorney Fees

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