Tuesday, October 26, 2010

The Road Foreman Not Taken: Selectboard Comments Continue to Cost Town Plenty

by Daniel Richardson

Spooner v. Town of Topsham, 2010 VT 71.

From the foot-in-mouth case files comes the Town Selectboard of Topsham, which found itself in hot water in selecting a new road foreman. Following a public meeting at which the Board announced its decision, two out of the five members of the Selectboard spoke to a journalist covering the event to say that the Board made its decision based on age. One went so far as to say that the Board wanted to hire “someone young who would be around for awhile.”

At this time, we ask those members of the plaintiffs’ bar who are reading this entry to close their mouths and stop drooling on the keyboard.

Thus James Spooner, a candidate for the position who was not hired and who was older than the person hired, filed suit under the Vermont Fair Employment Practices Act for age discrimination.

As the case developed, a significant issue arose when the Journalist, whose story started the affair, asserted the reporter’s privilege and refused to testify. This issue led to an interlocutory appeal, where the Court ordered the Journalist to testify. Spooner v. Town of Topsham, 2007 VT 98. Back at the trial court level, Plaintiff’s Counsel brought in co-counsel to assist him in presenting his case and examining witnesses. Following two days of trial, the Jury returned a Plaintiff’s verdict awarding him $241,116 in damages. This verdict was upheld on appeal. Spooner v. Town of Topsham, 2009 VT 43 (mem.). Mr. Spooner and his attorneys then sought costs and attorney’s fees as allowed under 21 V.S.A. § 495b(b).As mandated, the trial court allowed Plaintiff his attorney’s fees and costs, but it denied Plaintiff’s request for fees and costs incurred during the interlocutory appeal to secure the journalist’s testimony and the last-minute addition of Plaintiff’s co-counsel before trial.

On appeal, the Court upends the trial court’s decision and its methodology. Reviewing under an abuse of discretion standard, the Court finds that the trial court’s ruling that the need for an interlocutory appeal was “debatable” was an insufficient basis to deny fees and costs on this issue. The key for the Court is whether the interlocutory appeal and any other expenses were necessary to secure testimony that was “important” to Plaintiff’s case.

To establish such a basis in a civil rights case, the Court instructs us to go to the “lodestar figure” to calculate a reasonable attorney’s fee. The lodestar figure is simply the multiplication of the number of hours reasonably expended by a reasonable hourly rate. That figure is then adjusted upward or downward by various factors. While the Court does not adopt a specific test or set of factors to make this determination, it does refer approvingly to the 12 factors established by the U.S. Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 430 (1983). These include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
The Court then applies this analysis to the facts and finds that the Journalist’s testimony was necessary to Plaintiff and the interlocutory appeal to secure it was therefore a reasonable cost. Not only was the testimony necessary, but it was so clearly critical to Plaintiff’s case that the Court rules that no remand or additional findings are necessary. The costs and fees are reasonable as a matter of law based on the existing record.

The Court then addresses the Town’s argument that because it did not oppose the Journalist’s testimony and did not fight against its admission, it should not be charged with the costs and fees stemming from Journalist’s attempt to quash the subpoena on the grounds of a reporter’s privilege. The Court makes short work of this argument dismissing it as outside the fee shifting language of 21 V.S.A. § 495b(b), which assigns to the Defendant all of Plaintiff's reasonable costs and fees—regardless of who instigated the need. The Court also rejects an argument based on Arbor Hill Concerned Citizens Neighborhood Ass’n v. Albany, 522 F.3d 182 (2d Cir. 2008), which included an additional lodestar factor of looking at what would be the minimum that a “reasonable client” would be willing to pay to prosecute such a case effectively. The Court rejects this factor and suggests that it might be inapplicable to Vermont lodestar calculations, but to the extent that it is applicable, it would have to be established as a reasonable limit and not as a bargain basement brake that would force courts to strip away anything but the bare minimum of a case. The Court then awards Plaintiff $38,491.71 in fees and costs for the interlocutory appeal.

The Court next looks to the trial court’s reasoning for rejecting the co-counsel’s attorney’s fees. The Court rejects the trial court’s finding that the case was simple and straightforward and therefore only required one attorney. The relevant analysis when looking at the work of two or more attorneys for the purpose of attorney's fees is to see whether any of the work done was duplicative. The Court ordered that—to the extent the second attorney’s work was not duplicative—the trial court had an obligation to award attorney’s fees no matter how “easy” the case might have been. The Court remanded the case on this issue and directed the trial court to make findings consistent with this analysis.

The bottom line is that the Town is in for more legal fees for themselves and for Mr. Spooner’s attorney(s). In the end, the Selectboard Members’ errant statements will have cost the Town the equivalent of a half-dozen road foreman’s salaries or the equivalent of at least one, well-funded human resources office.

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