Metropolitan News-Enterprise


Friday, January 21, 2011


Page 1


Court Tosses Fee Award Against Former Arizona Jurist


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday threw out an award of $125,000 in fees and costs granted to the Maricopa Superior Court after it prevailed on a civil rights action brought against it by a former commissioner.

Writing for the panel’s majority, Judge Stephen Reinhardt explained the defendant bore the burden of establishing that the fees it sought to recover were incurred by virtue of the need to defend against the frivolous claims asserted by Vernon Harris and it had not done so in this case.

Harris joined the Maricopa Superior Court bench in 2000. Within five months of his appointment, Harris was under investigation for complaints that he had engaged in inappropriate conduct toward female staff, asked his secretary to run personal errands for him, and had performed his own duties inadequately.

He was placed on administrative leave and subsequently found to have violated the canons of judicial ethics and engaged in unprofessional conduct. The court then gave Harris the option of resigning or being fired, and he chose to resign.

The former commissioner then lodged a complaint with the Equal Employment Opportunity Commission in which he alleged that he had been discriminated against because he is an African-American male. The EEOC dismissed the complaint and Harris filed suit against the Maricopa Superior Court, the state of Arizona, and the Arizona Supreme Court.

Harris asserted causes of action for breach of contract, breach of duty, hostile work environment, race discrimination, invasion of privacy, wrongful termination, emotional distress, defamation, violation of due process and equal protection, and intentional interference with a business relationship.

U.S. District Judge Stephen M. McNamee of the District of Arizona granted the defendants’ motion for judgment on the pleadings as to Harris’ wrongful termination claim and later granted summary judgment on the remaining claims in a sealed order.

The defendants moved for attorney fees, seeking $315,974.65 in fees under Arizona Revised Statutes §§ 12-341.01(A) and 41-1481(J) and 42 U.S.C. §§ 1988 and 2000e-5(k), non-taxable expenses of $53,533.66, and reasonable fees and costs for preparation of the fee petition.

McNamee granted the motion in part, awarding $85,514.84 in fees and $40,150.23 in non-taxable costs. McNamee found Harris’ claims of disparate treatment, retaliation, equal protection violations, defamation and tortious interference were not frivolous and fees were not awardable as to those claims.

The judge found an award of attorney fees was appropriate as to the remaining claims, and calculated the amount attributable to these claims to be $171,104.84. He reached this amount by dividing the “general fees”—$251,464.10 defendants had requested but had not associated to any particular claim—across the 10 claims Harris had asserted, and then for each claim for which McNamee determined fees were appropriate, added the one-tenth of the general fees apportioned to that claim to the much smaller amount of fees the defendants asserted were specifically attributable to the defense of that claim. McNamee then reduced the award to $85,514.84, in light of Harris’ financial hardship.

In his decision for the appellate court, Reinhardt said the “pro-rata allocation of general fees between claims for which a fee award is appropriate and claims for which such an award is not appropriate, based solely on the number of claims,” as McNamee had done, was “impermissible.”

 Under 42 U.S.C. §§ 1988 and 2000e-5(k), as well as A.R.S. § 41-1481(J), Reinhardt said, a defendant is entitled only to the amount of attorneys fees attributable exclusively to a plaintiff’s frivolous claims. When a case contains both non-frivolous and frivolous claims, Reinhardt explained, “a defendant must demonstrate that the work for which it asserts that it is entitled to fees would not have been performed but for the inclusion of the frivolous claims in the complaint.”

 “To do otherwise,” he reasoned, “would be to risk requiring a plaintiff to pay defendants’ attorneys fees incurred in defeating his nonfrivolous civil rights claims, an outcome barred by our precedent and that of the Supreme Court.”

Reinhardt noted that when “as here, the plaintiff seeks relief for violation of his civil rights under various legal theories based on essentially the same acts, and a number of his claims are not frivolous, the burden on the defendant to establish that fees are attributable solely to the frivolous claims is from a practical standpoint extremely difficult to carry.” This burden, however, was not carried at all, under the method of allocation McNamee used, Reinhardt said.

The jurist added that a prevailing defendant in a civil rights case can only recover expenses with respect to claims for which attorney fees are recoverable, and so McNamee erred to the extent he awarded costs for any of Harris’ non-frivolous causes of action.

Reinhardt also disagreed with McNamee’s determination that Harris’ claims based on due process, invasion of privacy, and emotional distress were frivolous.

Senior Judge Procter Hug Jr. joined Reinhardt but Judge Jay S. Bybee dissented in large part.

He accused the majority of “fabricat[ing] a new rule” which “has so whittled away at defendants’ right to receive attorney fees that defendants should reconsider whether any recovery is possible.”

Bybee noted that the Ninth Circuit joined “the short side of an existing circuit split” in its decision yesterday, since the First, Fifth, Seventh and Eleventh circuits have held defendants in civil rights cases may recover attorney fees when the plaintiff’s frivolous and non-frivolous claims are intertwined, but only the Sixth Circuit has ruled a defendant may not recover fees if the plaintiff has raised at least one claim with merit.

He further insisted that review of a district court’s determination of an attorney fee award is for abuse of discretion, and the majority applied the wrong standard in applying de novo review to McNamee’s ruling.

The case is Harris v. Maricopa County Superior Court, 09-15833.


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