IN THE SUPREME COURT OF WASHINGTON STATE

LINDA JORDAN,
Appellant,
v.
SECRETARY OF STATE SAM
REED,
Res ondent.
NO. 87837-4
MOTION TO MODIFY
CLERK'S RULING ON
ATTORNEY FEES
I. NAME AND DESIGNATION OF PERSON FILING
MOTION
Linda Jordan, appellant, files this motion through her attorney.
II. STATEMENT OF RELIEF SOUGHT
Reduction of attorney fees awarded to the state to a reasonable amount.
III. REFERENCE TO RELEVANT RECORD
Respondent's Motion for Attorney's Fees
Declaration of Jeffery T. Even in Support of Motion for Attorney's Fees
Declaration of Jeffery T. Even Detailing Request for Attorneys' Fees
Declaration of Allyson Zipp in Support of Motion for Attorney's Fees
Declaration of Linda Jordan Objection to Request For Attorney Fees
Order December 5, 2012
Clerk's Ruling Setting the Awards for Attorney Fees
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IV. STATEMENT OF GROUNDS FOR RELIEF SOUGHT
WITH ARGUMENT
On October 25, 2012 the Secretary of State moved for and requested
the court to "order Ms. Jordan to pay, as a sanction, attorney fees incurred
by Secretary Reed." (Italics added). On December 5, a department of this
court dismissed the appeal as frivolous, denied pending motions to accept
additional evidence, re-designate the notice of appeal as a notice for
discretionary review, and deny review as moot. The court also awarded
respondent reasonable attorney fees pursuant to RAP 18.9 in an amount to
be determined by the clerk. Thereafter on January 1 0 the clerk awarded
the full amount of respondent's request, $12,675, without discussion or
elaboration.
Now Linda Jordan objects to the amount of the award in accordance
with RAP 18.1 (g) as unreasonable.
Ms. Jordan details in her prior affidavit her unsuccessful efforts to
obtain legal counsel and that an award of over $12,000 against her "would
be an extreme financial hardship for me and it does seem unreasonable."
Jordan Declaration Objection 6. She makes little more than $500 per
month caring for a senior citizen. Her husband is a school teacher.
Although the court has previously determined her legal arguments were
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not well taken there is no claim she acted in bad faith or will malicious
intent. Any award against her should be compensatory, not punitive.
A. Actual attorney fees charged the agency must be beginning point
of analysis
Attorney fee awards are generally calculated by the lodestar
method wherein the court first determines the reasonable number of hours
spent to secure the result, excluding wasteful or duplicative hours. Mahler
v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998). The court then
determines the reasonableness of counsel's hourly rate at the time he
rendered the services and multiplies the two to arrive at a total award. Ibid.
at 434
That is not, however, what happened here. Although the original
motion requested reimbursement of fees actually incurred by the Secretary
of State; nowhere does the declaration detailing the request claim the
requested fees were actually incurred by the Secretary. To the contrary,
the requested hourly rate is not even claimed to be the actual hourly rate.
Rather it is a fictitious one derived from an internal document prepared by
the AG's Operations Committee purported to approximate a "reasonable
market rate" in the private sector without regard to the actual rate charged
the agency. See Even Declaration December 10, ex. C
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Noting the failure to disclose the actual attorney fees billed the
agency, your undersigned called Mr. Even who acknowledged his fee
request was not based on the actual amount billed. He stated the agency
was billed $525.03 for Ms. Zipp's 7 hours and $2,887.37 for his 45.8
hours, for a total of $3,412.40, not the $12,675 awarded by the clerk. He
also said other services not documented in his declaration were billed at
$87.33 and $420.66 to the agency and $32.78 was not billed by error.
This is a significant omission from the attorney fee request as it is
the necessary beginning point to determine a reasonable attorney fee
award against Ms. Jordan. Scott Fetzer v. Weeks, 122 Wn.2d 141, 156,
859 P.2d 1210 (1993); Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d
632 (1998) Adjusted historical rates are improper in non-civil rights
litigation, "[r]ather the award is reimbursement to the client for fees
already paid." Fisher Properties v. Arden-Mayfair, Inc. 115 Wn.2d 364,
378, 798 P.2d 799 (1990)
Since the burden of proving the reasonableness of attorney fees is
upon the attorney requesting the fees, Mahler, 135 Wn.2d at 433-34, it
follows that this critical omission from the attorney fee application is fatal
to carrying that burden. Because of the State's strong interest in allowing
its citizens the "broadest constitutionally permissible access to our courts,"
the courts must "zealously circumscribe the scope of advocate activity
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which will be reimbursed ... " Scott Fetzer, 122 Wn.2d at 152-153 but the
state is here not seeking reimbursement; it is seeking a punitive windfall at
the expense of a pro se litigant. This the law does not permit.
B. Number of hours unreasonable
An award of nearly $13,000 to successfully defend a claimed
frivolous suit is on its face unreasonable. When a money judgment is
sought or resisted the court may consider the amount at issue to limit the
fees to those which make sense in light of the magnitude of the dispute.
Scott Fitzer, 122 Wn.2d at 150-157. Here there wasn't much to dispute
since the suit was alleged and found by the court to be frivolous.
Traditional factors could not justify an enhanced fee, such as the difficulty
of the questions involved. Dailey v. Testone, 72 Wn.2d 662, 664, 435
P.2d 24 (1967)
The AG's exhibit attempting to create an analogy between his
experience and rates in the private sector lacks recognition of the private
sector incentive to produce a result for the client at a reasonable bottom
line. Here the agency is a captive client which will not go shopping
amongst attorneys in the private market for a better deal in terms of the
total bill. However if one were to present a knowledgeable private client
with a $13,000 bill to obtain dismissal of a totally frivolous appeal, it
might be the last time that lawyer sees that client. In other words, in the
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private sector there must been a degree of business judgment not
necessarily present in the public sector. This court has recognized that the
lodestar calculation may over calculate a "reasonable" fee because it
doesn't take into account the amount at issue, i.e. the matter at issue may
not justify all the hours times an hourly rate calculation due to the small
nature ofthe dispute. Scott Fetzer, 122 Wn.2d at 150
The basic briefing was completed at the trial court level wherein
the AG obtained dismissal on frivolous grounds in one or two days from
filing. Shooting fish in a barrel is an apt analogy. In Scott, for example,
this court opined that "reasonable hours" in the long arm context should
require the court to "attempt to determine the amount of time that it would
take a competent practitioner to recognize to recognize the jurisdictional
issue, research the relevant law, and then prepare, file and prevail upon a
CR 12(b)(2) motion." Scott Fetzer 122 Wn2d at 151
Here the calculation of reasonable time would be the time to
research and file a motion to dismiss. Granted, the AG did identify some
helpful cases from other jurisdictions, but that research was already
completed, successfully, at the trial court level where summary dismissal
was obtained. The right to a compensatory award of reasonable attorney
fees is established on the face of RAP 18.9. A motion to dismiss and for
attorney fees could have easily been accomplished within two hours, with
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time to spare. By contrast, the AG here claims 17.4 hours relating to just
his motion for attorney fees! Prior to that the AG claimed 27 additional
hours not on a motion to dismiss but on various matters, most of which the
court refused to even consider because of the claimed frivolous nature of
the appeal. For example the AG contended this was discretionary review,
not a direct appeal, he then resisted review, he opposed acceleration and
the introduction of new evidence-all of which were non-dispositive and
unnecessary to obtain a dismissal. Time is claimed for services relating to
requests for admissions although the court denied that request from the
appellant sue sponte.
"The court must limit the lodestar to hours reasonable expended,
and should therefore discount hours spent on unsuccessful claims,
duplicated effort, or otherwise unproductive time." Bowers v.
Transamerica Title Ins. Co., 100 Wn.2d 581,597,675 P.2d 193 1983.
Added to this is 7 hours from Allyson Zipp. She claims her time was spent
on "reviewing and editing pleadings related to motion practice in this
matter, as well as to discussions of the case with Deputy Solicitor General
Jeffrey Even." Zipp Dec. 1 This appears to be more on the order of
secretarial services, or perhaps paralegal proof reading, not services which
require a member ofthe bar, and billed accordingly, not at $175 per hour.
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V. CONCLUSION
In sum, an award of reasonable attorney fees is to be based at the
outset on actual fees charged because the purpose of the reward is
compensation, not punishment. From there the actual billing may be
adjusted downward to account for the nature of the dispute, the simplicity
of resolution, and the time necessary to obtain a favorable resolution. Here
the approach of the AG was to over reach a pro se litigant by withholding
an accounting of actual charges to the agency. She could have made the
argument as set forth herein however she was given no notice of what was
actually happening, to the contrary. Nor should the excessive amount of
hours claimed to dismiss the simplest of all appeals, an alleged frivolous
one. $2,000 would be a very generous award under these circumstances.
RESPECTFULLY SUBMITTED this _5._ day ofFebruary 2013.
GOODSTEIN LAW GROUP PL C

Richard B. Sanders, WSBA No. 2813
Attorney for Appellant
Goodstein Law Group PLLC
501 S. G Street
Tacoma, W A 98405
(253)
Email: rsanders@goodsteinlaw.com
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