Clyde Ray Spencer’s lead attorney, Kathleen Zellner, said Wednesday that her motion for fees was filed in accordance with the Civil Rights Act.
In a motion for fees and costs filed Tuesday in U.S. District Court, Spencer’s lead attorney, Zellner, asked for $2.49 million. That includes a multiplier of 1.5 for attorney fees, which, she argues, courts have allowed for factors including the undesirability of the case, the inability of attorneys to take on additional clients in light of the demands of the case and the potential for receiving no payment.
If granted, Zellner’s attorney fees would be imposed on Clark County on top of the $9 million a federal jury awarded to Spencer, a former Vancouver police officer, on Feb. 3.
“When Congress passed the Civil Rights Act allowing lawsuits such as the Spencer lawsuit it provided for the prevailing party to be paid hourly fees plus cost as an incentive to get otherwise reluctant attorneys to take these cases on behalf of plaintiffs,” Zellner wrote in an email. “We as the prevailing party were required to file a fee petition for hours and costs with the court within 14 days after entry of the verdict. We are not taking some extra step to ensure we are paid rather we are following the statutory mandates of the Civil Rights Act.”
Clark County has said it will not pay the jury award, and commissioners have voted to not indemnify Det. Sharon Krause and Sgt. Mike Davidson in the case. The former sheriff’s office employees were found liable by the jury, which determined Spencer’s constitutional rights to due process were violated.
The county spent nearly $500,000 defending Krause and Davidson, but commissioners argue they should not have to pay the verdict because they believe Krause, who was found to have fabricated police reports, was acting outside the scope of her employment.
Spencer, 66, served 20 years in prison. His wrongful convictions for sexually abusing his children and a stepchild have been thrown out and the charges dropped.
On Monday, Zellner said in a statement through her Chicago office that she will file a writ of execution, asking U.S. District Judge Benjamin Settle to order the county to pay the judgment.
Her motion on Tuesday was limited to arguing for fees and costs.
She requested the motion be heard by Settle on March 7.
The $9 million award for Spencer, Zellner wrote, “is impressive in light of the existence of what seemed to be, at first blush, considerable challenges in the case.” Those challenges included “heinous accusations of sexual molestation of three young children,” and the facts that Spencer entered an Alford plea (meaning he did not admit guilt but acknowledged a jury could find him guilty) and Spencer’s stepson maintains he was molested, Zellner wrote.
There was also a high burden of proof to show the defendants knew or should have known that Spencer was innocent, she wrote.
“Due to all these hurdles, numerous attorneys flatly refused to represent (Spencer) in a civil case against those responsible for his imprisonment,” Zellner wrote.
Congress has included fee shifting for these types of cases, in hopes that lawyers “would take on risky civil rights cases and vigorously pursue them,” she wrote.
The complexity of the Spencer case, she wrote, was “self-evident.”
She and her team “had to prove the case circumstantially with evidence of concealed reports, an improper relationship, misquotations and misrepresentations, false statements, forged documents, and analysis and evaluation of over 800 quotations appearing in police reports. In short, this case involved truly novel and unique legal and factual matters,” she wrote.
Zellner and Spencer met through a producer from “20/20,” which has aired segments featuring both of them. Spencer, a director of security for a Los Angeles-area high-rise who’s still paying legal bills to the attorney who got him out of prison and his record cleared, said he did not have to pay a retainer to Zellner. In exchange, she would receive one-third of any judgment.
Zellner requested hourly rates for her team ranging from $300 to $575, noting the court has approved hourly attorney rates as high as $800.
Zellner wrote her office consists of four attorneys, two partners and two associates. Before Spencer’s case intensified in November 2012, the attorneys had at least 15 active personal injury and medical malpractice cases. That number has dwindled to two, due to the time invested in Spencer’s case.
They “had zero assurance that they would be compensated until the jury read the final verdict line,” Zellner wrote. “In fact, plaintiff’s counsel had zero assurances that they would be compensated at all, even if they prevailed, because the county is not insured. Plaintiff’s counsel is confident in its ability to obtain compensation, but it is not a guarantee.”
Chris Horne, chief civil deputy prosecutor for Clark County, did not return a request for comment Tuesday. Attorneys for Krause and Davidson could not be reached.
Clark County has insurance, but did not have it at the time Spencer was investigated and convicted.