Lujan v. Savares

• Court: Superior Court of Guam
• Decided: March 7, 2013
• Docket: SP0153-12
• Status: Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 DAVID J. LUJAN, ) ) SPECIAL PROCEEDINGS 4 Petitioner, ) CASE NO. SP0153-12 5 ) vs. ) 6 ) DECISION AND ORDER MELISSA B. SAVARES in her official ) 7 capacity as MAYOR OF DEDEDO, ) 8 ) Respondent. ) 9

10 INTRODUCTION II This matter came before the Honorable James L. Canto II on the Respondent's 12 opposition to the claim of attorney's fees, filed October 15, 2012. Oral arguments were heard 13 on October 29, 2012. Peter C. Perez, Esq. appeared on behalf of the Petitioner and Assistant 14 Attorney General Monty R. May, Esq. represented the Respondent. Having considered the 15 parties' briefs, oral arguments, and the applicable law, the Court now issues the following 16 Decision and Order. 17 BACKGROUND 18 On July 24 and August 3, 2012, Petitioner served Respondent with requests to produce 19 five years of mayoral records and other documents pursuant to the Sunshine Reform Act at 5 20 GCA Chapter 10. (Verified Petition, Exhibits "A" and "B", Sep. 7, 2012.) Petitioner also 21 specifically requested production of: 1) a map or survey of the Dededo Flea Market; 2) any 22 response to a March 24, 2012 allegation ofmismanaged funds; and 3) a list of all bank accounts 23 controlled by Respondent's office. !d. The parties agreed upon an extended schedule to 24 produce the documents because Respondent did not have the staff resources to produce the 25 entire request in a timely manner. (Verified Petition, Exhibit "C", Sep. 7, 2012.) When the 26 documents were not forthcoming, Petitioner filed an alternative writ of mandamus on 27 September 7, 2012 in order to compel production. 28

Page I of 4 On September 26, 2012, Respondent produced the documents and complied with 2 Petitioner's requests. (Declaration of David J. Lujan, Oct. 12, 2012.) On this basis, Petitioner 3 waives his prayer for fines and asks for attorney's fees and costs pursuant to 5 GCA § 10112(d). 4 Id. Respondent opposes attorney's fees on the basis that Petitioner is an attorney who should 5 not be entitled to fees under the Sunshine Reform Act. Respondent does not oppose the prayer

6 for costs. 7 DISCUSSION 8 Under Guam law, "[t]he Court shall award court costs and reasonable attorney fees to 9 the plaintiff should the plaintiff prevail after initial filing of the complaint pursuant to [the 10 Sunshine Act]." 5 GCA § 10112(d). The Sunshine Reform Act of 1999 shares the language, 11 purpose and subject matter of the federal Freedom of Information Act ("FOIA") and cases that 12 interpret the FOIA may aid in the interpretation of the Sunshine Act. Macris v. Guam Memorial 13 Hospital Authority, 2008 Guam 6 ~~ 25, 33. The award of attorney fees under the FOIA is 14 intended to relieve the burden of legal costs, and for this reason some federal courts do not 1 15 award fees to attorney-plaintiffs who represent themselves pro se. 16 However, "most FOIA attorney's fee cases clearly emphasize that such awards are 17 discretionary," and, "[ d]eciding whether a trial court abused its discretion in granting or denying 18 attorney's fees under FOIA depends upon determining whether and how the trial court 19 conducted the [following] four-factor analysis." Guam Radio Services, Inc. v. Guam Economic 20 Development Authority, 2000 Guam 23 ~~ 9-10. Reasonable attorney fees may be awarded 21 upon consideration of: 1) the benefit to the public from the release of the documents; 2) the 22 commercial benefit to the complainant; 3) the nature of the complainant's interest in the records 23 sought; and 4) whether the government's withholding of the records had a reasonable basis in 24 law. Id. at ~~ 3, 9-11. Factors two and three are often considered together and lead the court to 25

27 1 See e.g. Falcone v. I.R.S., 714 F.2d 646, 647 (6th Cir. 1983); Burka v. U.S. Dept. of Health and Human Services 28 142 F.3d 1286, 1288-1290 (D.C. Cir. 1998); Aronson v. U.S. Dept. of Housing and Urban Development, 866 F.2d 1 4-6 (lst Cir. 1989); Pietrangelo v. U.S. Army, 568 F.3d 341, 343-344 (2nd Cir. 2009); Ray v. U.S. Dept. of Justice 87 F.3d 1250, 1251-1252 (11th Cir. 1996).

Page 2 of 4 examme whether the claimant seeks to protect a private or purely commercial interest as 2 opposed to a scholarly, journalistic or public interest. !d. at~ 12 n.3. 3 In this case, the release of a mayor's record of official activities shall benefit the public 4 and favors an award of attorney fees. The precise nature of Petitioner's interest in the records 5 and whether Petitioner receives a commercial benefit from disclosure of the records is unclear, 6 but it appears that mayoral records and the allegation of mismanaged public funds generally 7 concern journalistic and public interests instead of commercial and private interests. The public 8 nature of Petitioner's interest favors an award of attorney fees. Finally, the Government has no 9 reasonable basis in law to withhold any records of mayoral activities undertaken pursuant to 5 10 GCA Chapter 40 and an award of attorney fees is favorable. For all of these reasons, an award II of reasonable attorney fees is appropriate pursuant to 5 GCA § 10 112(d). 12 The Court shall hold an evidentiary hearing in order to determine a reasonable amount 13 of attorney fees in this case where Petitioner is represented by attorney colleagues from his own 14 law firm. It may be important to consider whether Petitioner's colleagues are able to represent 15 him with "the detached and objective perspective necessary to fulfill the aims of the [FOIA]." 16 Kay v. Ehrler, 499 U.S. 432, 434 n.4, Ill S.Ct. 1435, 1436, 113 L.Ed.2d 486 (1991) (quoting 17 Falcone, 714 F.2d at 647). See also Burka, 142 F.3d at 1291-1292 (attorney fees denied for law 18 firm work performed under litigant's direction and control)? 19 Ill 20 Ill 21 Ill 22

27 2 "A rule that authorizes awards of counsel fees to prose litigants--even if limited to those who are members ofth

28 bar-would create a disincentive to employ counsel whenever such a plaintiff considered himself competent t litigate on his own behalf. The statutory policy of furthering the successful prosecution of meritorious claims i better served by a rule that creates an incentive to retain counsel in every such case." Kay, 499 U.S. at 438.

Page 3 of 4 CONCLUSION 2 Based upon the foregoing, Respondent's opposition to attorney's fees is hereby DENIED and an evidentiary hearing to determine a reasonable amount of attorney's fees and

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4 costs shall be heard on f\yYi l Old 1 200 at 5

6 SO ORDERED this tfH day of March, 2013. 7

10 4iON.JAMES L. CANTO II Judge, Superior Court of Guam 11

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