IN THE SUPREME COURT STATE OF NORTH DAKOTA
| Roland C. Riemers Supreme Court No. 20070317 | ||||||
| Plaintiff/Appellant | ||||||
| vs. | Grand Forks County,18-6-C-1276) | |||||
| State of North Dakota | ||||||
| North Dakota State Fair Association | ||||||
| Gary Knell, personally and as | ||||||
| President of State Fair Assoc. | ||||||
| Bob Wagoner, personally and as | ||||||
| State Fair Manager | ||||||
| Renae Korslien, personally and as | ||||||
| Concessionaire Manager | ||||||
| Defendants/Appellees | ||||||
APPELLANTS' BRIEF
SUPPORTING
ATTORNEY FEES APPEAL
| Brief By: Roland C. Riemers, Plaintiff/Appellant, Pro Se |
| 108 Cairns Ave. |
| Emerado, ND 58228 |
| 701-885-1555 |
TABLE OF CONTENTS
| Cover . 1 |
| Table of Contents .. 2 |
| Statement of Issues for Review.. 2 |
| Table of Authorities ... 3 |
| Nature of Case and Course Proceedings... 4 |
| Law & Argument 5-10 |
| Conclusions and Relief Sought. 10 |
| Affidavit of Mail Service . 11 |
| Appendix.... X |
STATEMENT OF ISSUES FOR REVIEW
I. Did the district court err by including non-attorney fees in an award of attorney fees?
II. Did the district court err by awarding attorney fees to the Attorney General?
III. Did the district court err by not following N.D.R.Civ.P. Rule 54(e) by not requiring a motion before having a hearing?
IV. Did the district court err by not requiring the State to support its Affidavit with testimony and by not allowing Riemers to cross examine State witnesses?
V. Did the district court err by not requiring the State to show that it not only billed Risk Management for services, but that Risk Management really paid for these services?
VI. Did the district court and this Court err by ignoring the American Rule and thus attorney fees should never have been awarded to begin with?
TABLE OF AUTHORITIES
| CASE LAW |
| Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975) ----------- 8 |
| Bellon v. Bellon, 237 N.W. 2d 163 (N.D. 1975) ------------------------------------------- 9 |
| Chambers v. Mississippi, 410 U.S. 284 (1973) -------------------------------------------- 7 |
| City of Bismarck v. Thom, 261 N.W.2d 640 (N.D. 1977) ------------------------------- 7 |
| First Trust Company of ND v. Conway, 423 N.W. 2d 795 (N.D. 1988) --------------- 9 Jensen v. Wrolstad, 526 N.W.2d 113 (N.D. 1994) ---------------------------------------- 9 |
| Knoepfle v. Suko, 108 N.W.2d 456 (1961) ------------------------------------------------- 7 |
| Norton v. Shelby County, 188 U.S. 425 (1886) -------------------------------------------- 9 |
| People ex. Rel. Brown v. Tehama County Board of Supervisors, 07 S.O.S. 1286 ---- 5 |
| State v. Bartkowski, 290 N.W.2d 218 (N.D. 1980) --------------------------------------- 7 |
| United Valley Bank v. Lamb, 2003 ND 149, 669 N.W.2d 117 ------------------------- 9 |
| U.S. v. Jannotti, 673 F.2d 578 (3d Cir. 1982) --------------------------------------------- 9 |
| STATUTES |
| N.D.C.C. 1-02-02. ---------------------------------------------------------------------------- 5 |
| RULES |
| N.D.R.App.P.38 ------------------------------------------------------------------------------- 8 |
| N.D.R.Civ.P. Rule 52 ------------------------------------------------------------------------ 7 |
| N.D.R.Civ.P. Rule 54(e)(2) ------------------------------------------------------------------ 6 |
| N.D. Judicial Cannon 1.A.-------------------------------------------------------------------- 10 |
NATURE OF CASE AND COURSE OF PROCEEDINGS
2 August 2006, Riemers served the State and other defendants with a Summons and Complaint claiming he was denied political free speech and charged illegal amounts for a booth at the 2006 State Fair in violation of state and Federal Constitutions, plus was also threaten with arrest on a public sidewalk outside a fair grounds gate. #2 of Docket.
March 2007, the Court of Appeals denied Riemers appeal and awarded attorney fees to the State and remanded the back to district court to determine those fees. P.4 of App.
7 May 2007, the State submitted an affidavit by Deborah F. Matzke supporting attorney fees. This included $1,287.84 for attorney and $593.94 for paralegal services. These services were "billed" to Risk Management, but, there was never any evidence presented that these amounts were in fact ever paid by Risk Management. P.5-6 of App.
18 May 2007, Riemers demanded a full hearing on attorney fees, with the "right to cross examine those presenting supporting documents for those fees." P.7 of App.
8 August 2007, the State requested to appear at this hearing telephonically, and this request was granted. P.13 of App.
31 August 2007, a hearing was held before the Honorable Lawrence E. Jahnke of the Grand Forks County District Court and the court awarded the entire $1,881.78 of attorney and paralegal fees to the State. P.9 of App.
17 September 2007, judgment was issued for $1,881.78 to the State. P.10 of App.
25 October 2007, Riemers filed a timely notice of appeal. P.11 & 12 of App.
LAW AND ARGUMENT
I. THE DISTRICT COURT ERRED BY INCLUDING NON-ATTORNEY FEES IN IT S AWARD OF ATTORNEY FEES.
The Court of Appeals Judgment remanded to the district court to determine "attorney fees" for this appeal. P.4 of App. In interpreting the law, we are required to use words in their ordinary sense. N.D.C.C. 1-02-02. A paralegal is not licensed as an attorney. The $593.94 for paralegal services awarded is no more for attorney fees then the fees for the attorney's secretary or pizza delivery boy. Nor in a review of the history of attorney fees in North Dakota Supreme Court cases could Riemers find one case where paralegal services were added to an award of attorney fees.
And while some courts in other states have approved Paralegal fees, they also normally require testimony of an expert, which of course was not done here. No testimony, no time records, no proof of billing or payments is the standard in this case.
II. THE ATTORNEY GENERAL SHOULD NOT COLLECT ATTORNEY FEES.
An attorney general collecting attorney fees is also be contrary to the decision of People ex. Rel. Brown v. Tehama County Board of Supervisors, 07 S.O.S. 1286 (a California Court of Appeal case) that held that an attorney general could not recover attorney fees when suing on behalf of the general public. The decision noted that "A local public entity may qualify for a fee award . . if it sues for the benefit of a segment of the public greater than its own constituency. But this does not apply to the attorney general, whose constituency includes the entire state population." The decision also noted that "The Attorney General needs no encouragement to pursue litigation that is in the general interest of the state's population because, put simply, that is his or her job." Id.
Riemers law suit was against the government of the State of North Dakota. The Attorney General is part and parcel of the government of North Dakota. The State was thus appearing in its own behalf, and thus was acting in a pro se bases. Money paid in attorney fees to the Attorney General do not stay with the Attorney General, but instead go back to the State. Thus, the defendant and the attorney are the same, and this is pro se representation and thus there are no attorney fees for legal representation.
As an illustration, if a plaintiff sued a lawyer in a law firm made up one lawyer who did business as a LLC. If the lawyer wins is he entitled to attorney fees as he was hired by his own LLC to represent his own interests in the LLC? Or if the lawyer had a partner in the same firm. Can that partner be awarded legal fees for representing his partner, and the fees paid back into the partnership? Riemers believes logic would conclude not.
III. THE DISTRICT COURT ERRED BY NOT FOLLOWING N.D.R.Civ.P. Rule 54(e) BY NOT REQUIRING A MOTION BEFORE HAVING A HEARING.
The claim for attorney fees was NOT decided by the Court of Appeals, but was remanded back to the district court. P.4 of App. At this point the N.D. Rules of Civil Procedure is very clear. If attorney fees were NOT DETERMINED by the judgment (as in this case), then there must be a motion. N.D.R.Civ.P. Rule 54(e)(2). As the State only submitted an affidavit and not a motion, it did not follow the clear procedures of Rule 54(e)(2). As the State did not make the required motion, the court lacked subject matter jurisdiction to decide attorney fees.
IV. THE DISTRICT COURT ERRED BY NOT REQUIRING THE STATE TO SUPPORT ITS AFFIDAVIT WITH TESTIMONY AND BY NOT ALLOWING RIEMERS TO CROSS EXAMINE STATE WITNESSES.
When the Court of Appeals remanded the case back to the district court, Riemers filed a demand for a hearing on the attorney fees, and further demanded "A full hearing on these amounts with the right to cross examine those presenting supporting documents for these fees." P.7 of App. But, the State appeared at the hearing only telephonically. P.13 of App. And even electronically, the State submitted no supporting testimony, documents, time sheets or witnesses for Riemers to cross examine.
As noted repeatedly by this Court: "The right to cross-examine is absolute and the denial of the right as to material evidence is prejudicial error requiring a new trial. . . . The complete denial of cross-examination is constitutional error of the first magnitude." State v. Bartkowski, 290 N.W.2d 218, 219 (N.D. 1980). "Not only is this right guaranteed in criminal cases, it is also cognizable in civil cases." Knoepfle v. Suko, 108 N.W.2d 456,463 (1961). The United States Supreme Court has also stated in such cases as Chambers v. Mississippi, 410 U.S. 284, 295 (1973), that "the right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the "accuracy of the truth-determining process."
Furthermore, this Court has long established the need for specific evidence for awarding attorney fees. In 1977 you stated: "We do not question the expertise of the trial court in determining what is a reasonable fee, but even so this does not mean that evidence or specific findings can be dispensed with." City of Bismarck v. Thom, 261 N.W.2d 640, 646 (N.D. 1977) You then went on to say: "On appeal, whether we review the reasonableness of attorney fees pursuant to Rule 52 of the North Dakota Rules of Civil Procedure or under the abuse-of-discretion concept, facts are necessary. Where no evidence was introduced and where the trial court made no specific findings of fact to support its determination on attorney fees, it is impossible for this Court on appeal to appropriately review the decision (determination) of the trial court." Id. at 647.
Obviously you can not do a proper cross examine someone over the telephone. Nor, as the State did not support their affidavit with the testimony or any material evidence at the hearing, this affidavit could not be impeached or questioned. Thus Riemers was denied state and federal due process and a fair and full hearing on issue of attorney fees.
V. THE DISTRICT COURT ERRED BY NOT REQUIRING THE STATE TO SHOW THAT IT NOT ONLY BILLED RISK MANAGEMENT FOR SERVICES, BUT THAT RISK MANAGEMENT REALLY PAID FOR THESE SERVICES AS WELL.
In the State's supporting affidavit, Deborah Matzke states that the "North Dakota Office of Attorney General bills the North Dakota Risk Management Fund an hourly rate for services performed by assistant attorneys general and paralegals employed by the Office of Attorney General." P.5-6 of App. At no point in her affidavit does Matzke testify that Risk Management Fund ever really pays these bills, or if they are just an accounting slight of hand by the state. Nor does the State include copies of any of these bills or payments in support of these bills. Nor at no point in her affidavit does Matzke identify the attorneys or paralegals who were billed for, or even submit time records to document those billed hours. But is a bill the same as a payment? When a businessman incurs an expense, he normally can not deduct it until he pays for it. Is a bill to oneself really a bill?
In ordinary English, attorney fees would be the payments for services received by an attorney. Merely billing a fee, with no intention to collect it, and only using it as a means of getting an award from the court, under ordinary English, is not really a legal fee.
Interestingly, while Riemers did not have time to do adequate research or discovery before the hearing, in a later contact with the Risk Management he was informed that any information about any payments of monies from Risk Management to the Attorney General was confidential information under state law. Thus, only by being able to do a cross examination of the State's witnesses could Riemers - or the court - really determine if these legal fee billings were real or just sham transactions to claim legal expenses??????
VI. THE DISTRICT COURT AND THIS COURT ERRED IN IGNORING THE AMERICAN RULE AND THUS ATTORNEY FEES SHOULD NEVER HAVE BEEN AWARDED TO BEGIN WITH.
The general rule in this country is the so called AMERICAN RULE that each party must pay its own attorney's fees. See Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975). But in this instance, the Court of Appeals ignored the American Rule and awarded reasonable attorney fees under N.D.R.App.P.38 for a frivolous appeal.
In the initial complaint Riemers included the claim he was threaten with arrest on a public sidewalk outside the State Fair Grounds gate. A public sidewalk - as any first year law student knows - or even any half educated high school student knows - is a classical public forum for free speech. Thus the Court of Appeals decision was at least in part a violation of Riemers first amendment free speech rights. And it is well established that: "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 188 U.S. 425 (1886). Thus, by any common interpretation of the law the Court of Appeals decision has no legal contemplation.
Probably more interesting is why the Court of Appeals would violate well established constitutional rights and the important American Rule in its decisions. The reasons are fairly obvious. While Riemers has been involved with numerous N.D. Supreme Court appeals over the past 7 years, the ONLY ONES that were allowed attorney fees are those involving civil rights actions against the state of North Dakota itself. It doesn't matter what the laws or the facts are. If Riemers litigates with other individuals, the American Rule applies. If Riemers litigates against the state it doesn't matter what the facts or the laws are, the AG claims everything is frivolous and generally the lower and higher courts will award the AG attorney fees. The awards are also well in excess of what have been awarded in other Supreme Court appeals. For example, $780 was awarded in Bellon v. Bellon, 237 N.W. 2d 163 (N.D. 1975). Then just $250 in First Trust Company of ND v. Conway, 423 N.W. 2d 795 (N.D. 1988). Then $500 in Jensen v. Wrolstad, 526 N.W.2d 113 (N.D. 1994). And most recently $1,000 for United Valley Bank v. Lamb, 2003 ND 149, 669 N.W.2d 117. In fact if you include the attorney fee award in the district court, just this one Riemers case has generated more attorney fees then all the above cases combined.
It has been said by the courts that "There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice . . ." U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982). It is obvious that in the future pro se civil rights litigators will have to avoid the bias and attorney fee awards of state courts and use Federal courts to vindicate their civil rights in North Dakota. In North Dakota, the American Rule is out, and the North Dakota Rule for attorney fees to protect the state is in.
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." N.D. Judicial Cannon 1.A.
The District Court erred by not requiring the Attorney General to submit a motion for attorney fees along with specific evidence and to have that evidence subject to impeachment and cross examination. Nor should the Office of Attorney General - which is part of the government of North Dakota - be awarded attorney fees for just doing their public job. The AG, by representing the State, is functioning in a pro se bases, and thus should not be allowed attorney fees. Nor should the courts of North Dakota be allowed to subvert the American Rule in order to discourage state civil rights law suits in state courts.
Riemers asks that the ruling of the District Court be reversed, and that Riemers be awarded his costs for this appeal and any other just and reasonable remedy.
Dated: 3 January 2008
| By: ____ | ||||
| Roland Riemers, Plaintiff/Appellant, Pro Se | ||||
| 108 Cairns Ave., Emerado, ND 58201, 701-885-1555 | ||||