9th Circuit Sanctions Indian Tribes' Attorney in Arizona Snowbowl Case

Map of states comprising the 9th Circuit Court of Appeals

Ski, Esq. has been closely monitoring the progress of litigation involving the Arizona Snowbowl and Native American tribes (original story and first update). The dispute dated back over a decade to when the Flagstaff area resort first proposed using reclaimed wastewater for snowmaking. Two rounds of litigation and hundreds of thousands of dollars later, the Snowbowl finally prevailed, but not before the Ninth Circuit Court of Appeals found that the plaintiffs' had attempted to game the system by bringing a second, nearly identical lawsuit against the resort.

In June, Ski, Esq. reported that the Snowbowl filed a motion for attorneys' fees. Yesterday, the 9th Circuit denied that motion, but sanctioned the tribes' attorney - Howard Shanker - and ordered him to pay court costs for the second lawsuit.

In a word, the court's decision is gutless. The same court that held that Shanker's actions constituted, a "a gross abuse of the judicial process" now forces the defendants who had to expend hundreds of thousands of dollars defending a frivolous lawsuit to pay their own attorneys' fees. The court costs amount to only a small fraction of the $270,000 the Snowbowl's motion requested. The court's order read, in part:

"A majority of the panel has concluded that an award of attorney fees would be inequitable because plaintiffs-appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate."

In Ski, Esq.'s opinion, this latest ruling is simply another example of why the 9th Circuit has earned a reputation as the worst circuit court in the United States.  In its current term, the Supreme Court has reversed the 9th Circuit a total of 14 times. The circuit with the second-most reversals this term had only 5 decisions overturned.  Moreover, between 1999 and 2008, the Supreme Court overturned 107 of the court's rulings, according to data from the ABA. The second-highest number of reversals from that period belonged to the 6th Circuit, which had only 45 cases overturned.

The court should have made Shanker and/or the tribes pay the Snowbowl's attorneys' fees. The only party with clean hands in the dispute is the Snowbowl and yet it will be the one stuck paying its lawyers' fees. The fact that Shanker acted in a pro bono capacity did not lessen the very real amount of money spent by the Snowbowl. In fact, because Shanker was not accountable to a client who had to pay his bills, it would have been even easier for him to drive up the Snowbowl's fees.

Clearly one of the three judges agreed with Ski, Esq. since only a majority felt that awarding attorneys' fees was inappropriate as opposed to a unanimous vote in favor of sanctions. In the end, Shanker, who in the words of the court, "engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing [the first case]" and whose "intent was to harass Snowbowl" received far too light a punishment.

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