Metropolitan News-Enterprise


Tuesday, May 26, 2009


Page 1


Court Remands $875,000 Fee Award in Voting Machine Case




The First District Court of Appeal Friday ordered a trial judge to reconsider an award of more than $875,000 in fees and costs to a Santa Monica law firm that successfully challenged Alameda County’s refusal to release documents related to the use of its now-discarded electronic voting system.

Div. One, in an unpublished opinion by Presiding Justice James Marchiano, largely upheld an injunction requiring the county to make certain materials available to voters who question the validity of election outcomes in future elections if “directed-recorded electronic” or DRE machines that do not provide a “paper trail” are used.

The use of such machines is now prohibited by state law, and Alameda County switched in November 2006 to a system that uses optically scanned paper ballots to count more than 99 percent of the vote. Disabled voters have the option of using an electronic machine with a paper audit trail instead.

The firm of Strumwasser & Woocher represented the medical marijuana advocacy group Americans for Safe Access in a challenge to the declared defeat of Measure R on the Berkeley ballot in November 2004. The initiative would have, among other things,  allowed medical marijuana users to cultivate as many plants as they and their doctors believed necessary for their personal use, repealing a 10-plant-per-user limit imposed by the City Council.

Election officials initially certified that the measure had lost by 191 votes, prompting ASA to demand a recount. In accordance with the recount statute, which allows proponents of a recount to view the marked and unmarked ballots along with “any other relevant material,” ASA asked to see internal access logs and test reports that the group said would show whether DRE software was manipulated during or after the election, as well as documents reflecting the chain of custody of electronic data.

The county rejected the demand. The recount reduced, but did not wipe out, the margin of defeat for Measure R, and ASA filed suit seeking injunctive and declaratory relief, as well as a new election.

The lawsuit was initially dismissed, but the Court of Appeal reversed, saying the complaint stated a cause of action and that the issue of whether the requested materials were relevant to the recount request had to be decided on the basis of evidence.

On remand, Alameda Superior Court Judge Winifred Smith largely sided with ASA, saying it had a statutory and constitutional right to view the requested materials. She then granted most of the attorney fees and costs requested by Strumwasser & Woocher.

The firm asked for more than $1 million. It contended that associates Gregory Luke and Aimee Dudovitz should be awarded $490 per hour for more than 1,000 hours of work, that partners Fredric Woocher and Michael Strumwasser should be awarded $625 per hour for nearly 20 hours of work, that associate Ellen Yang’s services were worth $410 per hour for nearly 20 hours of effort, and that factors such as the contingent nature of the case justified a multiplier doubling the award.

The county responded that the claim was excessive, providing, among other things, a declaration by noted elections lawyer Robin Johansen—whose firm later represented the county on appeal—indicating that her firm charged $425 per hour for her time and $360 per hour for that of an associate.

Smith concluded that fair hourly rates were $550 per hour for the partners,  $425 per hour for Luke—who had put in more than 790 hours, according to the moving papers—$375 per hour for Dudovitz, and $275 for Yang. The judge eliminated more than $20,000 for services found to be redundant or unnecessary, but agreed that the lodestar should be multiplied by two.

On appeal, the county argued that the fee award was defective because Smith did not make detailed findings with respect to the propriety of either the lodestar or the multiplier. Marchiano, writing for the Court of Appeal Friday, said the lodestar award was proper but that the county had a sound argument with respect to the multiplier.

In the absence of a detailed explanation, the presiding justice said, the panel was unable to determine whether the trial judge improperly “double counted,” that is, considered the attorneys’ special expertise in elections and constitutional law in determining both the lodestar amount and the multiplier.

Marchiano questioned whether the case was as complex as the firm argued, saying the hourly rates, while awarded within the trial judge’s discretion, were high “for work involving only the meaning of ‘relevant material.’” He noted that the firm had already litigated similar issues in a case it lost in Riverside County, so the issues were not completely novel.

“It is difficult to conclude, without further explanation by the trial court or a finding of extraordinary skill to justify a multiplier on that ground, that skill was not already encompassed in the lodestar and thus the trial court was double counting,” the presiding justice wrote.

On remand, he added, it would be appropriate for the judge to consider that fact that the fees will have to be paid by a public entity to a private law firm in setting the amount of any multiplier.

The case is Americans for Safe Access v. County of Alameda, A121390.


Copyright 2009, Metropolitan News Company