Baca v. Berry

• Citation: 806 F.3d 1262
• Decision Date: 01 December 2015
• Docket Number: 14–2181.,Nos. 14–2174,s. 14–2174
• Parties: Phillip Patrick BACA, Mary Molina Mescall, Ron Romero, and Bernadette Miera, Plaintiffs/Cross–Appellees, v. Richard J. BERRY, in his official capacity as Mayor of Albuquerque, Defendant–Appellee/Cross–Appellant. Luis Roberto Vera, Jr., Phillip G. Sapien, and Antonio Maestas, Attorneys–Appellants/Cross–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

806 F.3d 1262

Phillip Patrick BACA, Mary Molina Mescall, Ron Romero, and Bernadette Miera, Plaintiffs/Cross–Appellees,

v. Richard J. BERRY, in his official capacity as Mayor of Albuquerque, Defendant–Appellee/Cross–Appellant.Luis Roberto Vera, Jr., Phillip G. Sapien, and Antonio Maestas, Attorneys–Appellants/Cross–Appellees.

Nos. 14–2174

14–2181.

United States Court of Appeals, Tenth Circuit.

Dec. 1, 2015.

Mark P. Gaber, Jenner & Block LLP, and Joshua J. Bone, Campaign Legal Center (Jessica Ring Amunson, Jenner & Block LLP, and J. Gerald Hebert, Campaign Legal Center, with them on the briefs), Washington, DC, for Attorneys–Appellants/Cross–Appellees and Plaintiffs/Cross–Appellees.

Luis G. Stelzner, Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A. (Jaime L. Dawes, Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A., and Patrick J. Rogers, Patrick J. Rogers, LLC, with him on the brief), Albuquerque, New Mexico, for Appellee/Cross–Appellant.

Opinion

TYMKOVICH, Chief Judge.

This case arises out of an award of attorneys' fees imposed as a sanction on attorneys who brought a voting-rights lawsuit against the Mayor of Albuquerque. After dismissing the case, the district court found the attorneys unreasonably multiplied proceedings in what it called a meritless case and sanctioned them under 28 U.S.C. § 1927. They argue the award was an abuse of discretion. The Mayor cross-appealed, arguing the court abused its discretion by declining to award fees under several other provisions the Mayor raised as grounds for sanctions.

Although most of the attorneys' arguments lack merit, we vacate the award of fees and remand for the court to consider whether a different trigger for the imposition of sanctions is appropriate. The Mayor dropped his cross-appeal at oral argument. Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we VACATE the award of fees and REMAND for further proceedings consistent with this opinion. We also DENY the motion for sanctions on appeal.

I. Background

Several Albuquerque residents sued Mayor Richard Berry in his official capacity as Mayor of Albuquerque in state court over the City's redistricting plan enacted after the 2010 census.¹They sought “injunctive and declaratory relief to achieve a constitutionally acceptable and otherwise lawful redistricting of the Albuquerque City Council.” App. 185. Specifically, they claimed that (1) a newly adopted Albuquerque redistricting map “minimize[d] the opportunities of Latinos to participate in the political process and to elect the representatives of their choice,” in violation of Section Two of the Voting Rights Act of 1965; and (2) the new districts “deviate[d] impermissibly from population equality,” in violation of the Equal Protection Clauses of both the United States and New Mexico Constitutions. Id.at 12, 14. The Mayor removed the case to federal court in January 2013.

After the lawsuit had been commenced, in March 2013, a city-charter amendment passed mandating that no candidate could be elected without receiving a majority of the vote. That abrogated the previous rule, under which the top vote recipient with a plurality of 40% or more would prevail.²Subsequently, in June 2013, the Mayor provided the voters with a critical expert report. That report, created by Brian Sanderoff, purported to identify flaws in the voters' theory of the case in general and, more importantly, as described in the reports prepared by the voters' experts. We discuss those alleged flaws as they become relevant below.

Several weeks later the voters filed a motion for voluntary dismissal without prejudice of their claims. They explained that they did so “to assure that [the lawsuit] would not interfere with the upcoming [Fall] elections in the City of Albuquerque and to ascertain whether the change in the political landscape in the City of Albuquerque [i.e.,the city-charter amendment] would necessitate further litigation.” Id.at 46. The Mayor opposed this motion, arguing that dismissing the case without prejudice would result in legal prejudice to him. Thus, he filed a motion asking the court to instead dismiss the case with prejudice.

On September 30, rather than granting or denying either motion, the court entered a stay in the case and “defer[red] ruling until after the upcoming [November] mayoral election.” Id.at 190. The court found the facts before it insufficiently clear to justify ruling definitively on either motion at that time. In its order, the court noted that, after “the conclusion of the mayor's race, the Court will hold a status conference and the parties shall advise the Court how they wish to proceed.” Id.at 191. And it instructed the voters to “be prepared to advise the Court whether, given the results of the mayoral election, they still wish to pursue litigation on the allegations raised in the complaint.” Id.

Neither party filed anything further from that point forward, and the mayoral election came and went. On November 12, the court held a telephone conference, at which the voters “advised ... that there was also an upcoming election for councilperson, and suggested continuing the stay,” again suggesting that after this election the “issue [might] become moot.” Id.at 192, 195. The court understood that as a request to stay the decision until it became clear whether or not “further legal action was necessary, based on the implementation of the [city-charter amendment].” Id.at 196. Nothing happened for two months aside from the court vacating a December 17 telephone conference because of its scheduling issues. The record reflects no action by the voters to advise the court of the effect the election had on their claims or whether they wished to proceed. Accordingly, the dueling motions remained pending.

In January 2014, the court revisited the motions. It noted that, although its stay had been based on the voters' “representations that the outcome of the elections would determine whether the underlying issues had become moot,” they apparently still could not “make a decision about whether they have a meritorious lawsuit or not.” Id.The court found that the voters' failure to take any affirmative action post-election indicated their claims that the results of the Fall elections would let them “determine whether there remained an issue to litigate” had been “disingenuous.” Id.In short, the court found their reasons for seeking dismissal without prejudice insufficient. Finding it “apparent that there [was] no longer a case to pursue,” the court denied the voters' motion to dismiss without prejudice and dismissed the case with prejudice. Id.at 195–96.

The Mayor subsequently moved for an award of attorneys' fees and costs under a host of provisions. After holding a sanctions hearing, the court ruled on the motion in August 2014. The court only awarded sanctions under 28 U.S.C. § 1927, which allows the imposition of fees on lawyers who “unreasonably and vexatiously” multiply proceedings. Although the court found the lawsuit was not filed in bad faith, it found that “at some point during the course of the litigation,” counsel's conduct “in maintaining [the] case multipl[ied] the proceedings in an unreasonable and vexatious manner.” Id.at 405. The court concluded that “the magic date that this case was no longer viable and ... counsel unreasonably continued this matter was June 25, 2013, the date [counsel] was provided with [Mr. Sanderoff's] expert report.” Id.at 407. According to the court, “[u]pon reading that report, it would have been clear to a reasonable attorney that this case no longer had merit.” Id.Thus, the court imposed an award of attorneys' fees, beginning from June 25, 2013, amounting to $48,217.95.

The voters have appealed only that order granting attorneys' fees.

II. Analysis

Federal law provides that any attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. This is an “extreme standard,” and fees should be awarded “only in instances evidencing a serious and standard disregard for the orderly process of justice.” AeroTech, Inc. v. Estes,110 F.3d 1523, 1528 (10th Cir.1997)(internal quotation marks omitted). Thus, courts must “strictly construe[ ]” the statute to guard against “dampen[ing] the legitimate zeal of an attorney in representing his client.” Braley v. Campbell,832 F.2d 1504, 1512 (10th Cir.1987)(en banc).

Courts need not find that an attorney subjectively acted in bad faith. Rather, “any conduct that, viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court[ ] is sanctionable.” Hamilton v. Boise Cascade Express,519 F.3d 1197, 1202 (10th Cir.2008)(internal quotation marks omitted). The statute makes attorneys potentially liable for harm caused “because of” unreasonable and vexatious multiplication of proceedings. 28 U.S.C. § 1927. Thus, “there must be a causal connection between the objectionable conduct of counsel and multiplication of the proceedings,” such that the conduct “result[ed] in proceedings that would not have been conducted otherwise.” Peterson v. BMI Refractories,124 F.3d 1386, 1396 (11th Cir.1997); see also Lee v. First Lenders Ins. Servs., Inc.,236 F.3d 443, 445 (8th Cir.2001).

Although we generally review an award of fees under § 1927for an abuse of discretion, if “the exercise of that discretion dependedon the resolution of a purely legal issue,” we review that issue de novo. Hamilton,519 F.3d at 1202(emphasis added). We emphasize “depended” because many of the voters' assertions of legal error on appeal attack legal analysis upon which the imposition of sanctions did not obviously depend, contained in orders not designated in their notice of appeal. Cf. Navani v. Shahani,496 F.3d 1121, 1133 (10th Cir.2007)(stating we have jurisdiction only over orders appellants...