Toensing v. Attorney Gen. of Vt.

• Decision Date: 26 April 2019
• Docket Number: No. 18-190,18-190
• Parties: Brady C. TOENSING v. The ATTORNEY GENERAL OF VERMONT
• Court: Vermont Supreme Court

212 A.3d 180

Brady C. TOENSING

v.The ATTORNEY GENERAL OF VERMONT

No. 18-190

Supreme Court of Vermont.

October Term, 2018

April 26, 2019

Brady C. Toensing of diGenova & Toensing, Washington, DC, for Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, and David Boyd, Assistant Attorney General, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

CARROLL, J.

¶ 1. In this appeal, we address whether plaintiff, a substantially prevailing self-represented litigant in a case brought under the Vermont Access to Public Records Act (PRA), is entitled to attorney's fees because he is an attorney. The civil division of the superior court denied plaintiff's request for attorney's fees. On appeal, plaintiff argues that he is entitled to attorney's fees based on the plain language of the relevant PRA provision, the purpose of the Act, and the public policy underlying the Act. We join the vast majority of jurisdictions construing similar acts in concluding that the PRA's plain language and purpose foreclose granting attorney's fees to substantially prevailing self-represented litigants, regardless of whether they happen to be attorneys. Accordingly, we affirm the superior court's decision.

¶ 2. The facts are not in dispute. In May 2015, plaintiff submitted a PRA request to defendant, the Vermont Attorney General at the time, seeking, among other things, several years of responsive records from multiple employees and officials in the Office of the Attorney General (AGO) regarding communications with, or documents related to, various individuals and domain names. Plaintiff's request included communications received or sent on state employees' private email accounts. The AGO retained an outside contractor at plaintiff's expense to identify emails subject to plaintiff's request and produced records on a rolling basis but ultimately denied the request with respect to communications sent through its employees' private emails. Plaintiff filed a PRA action in superior court, seeking declaratory and injunctive relief. The superior court granted the AGO's motion for summary judgment, and plaintiff appealed.

¶ 3. On appeal, we reversed the superior court's summary judgment ruling and remanded the matter for further proceedings. We held "that the PRA's definition of ‘public record’ includes digital documents stored in private accounts, but ... only [those] documents that otherwise meet the definition of public records." Toensing v. Attorney General, 2017 VT 99, ¶ 1, 206 Vt. 1, 178 A.3d 1000. Recognizing the need to strike a balance between protecting state workers' privacy and making state agencies accountable for their actions, we determined that an adequate search would require the AGO to have in place policies: (1) minimizing the use of personal accounts to conduct agency business; (2) training employees to distinguish between private and public records; (3) requiring employees to provide public records within their control and to explain how those records were segregated from nonpublic records; and (4) providing for the disclosure of requested nonexempt public records submitted by state employees from private email accounts. Id. ¶ 36. Accordingly, we required the AGO in this case "to ask specified state employees to provide public records from their personal accounts in response to plaintiff's public records request." Id. ¶ 1.

¶ 4. On remand, plaintiff filed a motion for costs and attorney's fees pursuant to 1 V.S.A. § 319(d)(1), which provides that "the court shall assess against the public agency reasonable attorney's fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." Defendant opposed the motion, arguing that self-represented litigants may not recover attorney's fees under the plain language of the statute, that neither party substantially prevailed in the litigation, and that plaintiff may not recover the costs that he seeks.

¶ 5. The superior court granted plaintiff's motion in part and denied it in part. The court concluded that plaintiff had substantially prevailed in the litigation and thus was entitled to costs other than computer-assisted research costs, which the court considered to be a component of attorney's fees. However, upon examining the language of § 319(d), analogous federal Freedom of Information Act (FOIA) cases, and the U.S. Supreme Court case relied on in those cases, the superior court concluded that substantially prevailing self-represented plaintiffs may not recover attorney's fees under the PRA, even if they happen to be attorneys. Accordingly, the court denied plaintiff's request for attorney's fees. The court also ruled that plaintiff is not entitled to recover attorney's fees for work performed by his law firm colleagues at his direction because there was no independent attorney-client relationship.

¶ 6. On appeal, plaintiff argues that the superior court erred in ruling that § 319(d)(1) does not allow the assessment of attorney's fees to a self-represented licensed attorney who substantially prevailed in a PRA action. Defendant supports the superior court's decision with respect to attorney's fees and does not challenge the court's conclusions that plaintiff, as the substantially prevailing party, is entitled to costs other than computer-assisted research costs.

¶ 7. The issue in this appeal, which concerns statutory interpretation, is a pure question of law that we review without deference to the superior court's decision. In re D.C., 2016 VT 72, ¶ 6, 202 Vt. 340, 149 A.3d 466 ("Questions of statutory interpretation are pure questions of law that we review de novo." (quotation and alteration omitted)). Our paramount task in construing statutes "is to ascertain and implement the legislative intent." McClellan v. Haddock, 2017 VT 13, ¶ 13, 204 Vt. 252, 166 A.3d 579. In determining that intent, we first look to the plain language of the statute. Id. If the legislative intent is clear from that language, we enforce the statute according to its terms; however, if the language is ambiguous, we may infer intent from the statute's subject matter, purpose, effects, and consequences. Id. ; see Herald Ass'n v. Dean, 174 Vt. 350, 354, 816 A.2d 469, 474 (2002) ("Where the Legislature's intent can be ascertained from the plain meaning of the statute, we interpret the statute according to the words the Legislature used."). "The Legislature is presumed to have intended the plain, ordinary meaning of the adopted statutory language." Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 346, 816 A.2d 448, 453 (2002). Accordingly, "[w]ords not defined within a statute are given their plain and ordinary meaning, which may be obtained by consulting dictionary definitions." Brisson Stone, LLC v. Town of Monkton, 2016 VT 15, ¶ 19, 201 Vt. 286, 143 A.3d 550 ; accord Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶ 18, 190 Vt. 639, 35 A.3d 1019 (mem.) (construing term in PRA).

¶ 8. In its entirety, § 319(d) provides as follows:

(1) Except as provided in subdivision (2) of this subsection, the court shall assess against the public agency reasonable attorney's fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

(2) The court may, in its discretion, assess against a public agency reasonable attorney's fees and other litigation costs reasonably incurred in a case under this section in which the complainant has substantially prevailed provided that the public agency, within the time allowed for service of an answer under V.R.C.P. 12(a)(1) :

(A) concedes that a contested record or contested records are public; and

(B) provides the record or records to the complainant.

(3) The court may assess against the complainant reasonable attorney's fees and other litigation costs reasonably incurred in any case under this section when the court finds that the complainant has violated V.R.C.P. 11.

¶ 9. Plaintiff argues that he is entitled to attorney's fees pursuant to the plain meaning of the provision because § 319(d)(1), which is applicable in this case, makes the award of attorney's fees mandatory and does not include an explicit exception for attorneys representing themselves. He finds support for his argument from the 2011 Amendment that made the award of attorney's fees mandatory under § 319(d)(1) and from the legislative command that the PRA be "liberally construed." 1 V.S.A. § 315(a). He also argues that both the legislative history and public policy underlying the statute militate in favor of awarding attorney's fees to substantially prevailing self-represented attorneys.

¶ 10. We do not find any of these arguments persuasive. The key terms in § 319(d)(1) are defined in Black's Law Dictionary as follows. Attorney's fee is "[t]he charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee." Black's Law Dictionary (10th ed. 2014). The primary definition of attorney is "[s]trictly, one who is designated to transact business for another; a legal agent."¹ Id. A fee is "[a] charge or payment for labor or services, esp. professional services." Id. Incur means "[t]o suffer or bring on oneself (a liability or expense)." Id. Each of these terms individually, and more emphatically when read together in the provision, denote an attorney-client relationship in which the plaintiff client is liable for a fee imposed by the attorney representing the client in the PRA litigation. See Omdahl v. W. Iron Cty. Bd. of Educ., 478 Mich. 423, 733 N.W.2d 380, 384-86 (2007) (stating, in disallowing award of attorney's fees to prevailing self-represented attorneys under commonly understood meanings of terms in open-meetings-law statute, that definition of "attorney" connotes agency relationship between client and person representing or advising...