SHARON HAMMER v. CITY OF SUN VALLEY NILS RIBI DeWAYNE BRISCOE (2017)

PETITION FOR REHEARING REGARDING AWARD OF ATTORNEY FEES ON APPEAL UNDER IDAHO CODE § 6-2107

NOW COMES the Appellant-Plaintiff SHARON R. HAMMER (“Ms. Hammer”), and petitions for rehearing and reconsideration, pursuant to I.A.R. 42, of the decision to award attorney fees on appeal in this matter.¹

On December 21, 2016, this Court entered its Opinion affirming the judgment of the District Court dismissing Ms. Hammer's claims pursuant to the Idaho Protection Of Public Employee's Act (Idaho Code 6-2101 et seq.) (the “IPPEA”) on summary judgment, finding that Ms. Hammer had waived her right to do so. As part of the Opinion, this Court entered attorney fees in favor of Defendant the City Of Sun Valley pursuant to Idaho Code § 6-2107. Ms. Hammer seeks rehearing and reconsideration of the entry of attorney fees on appeal pursuant to Idaho Code § 6-2107 for several reasons, including:

a) Because of the interplay and language of the Supplemental Release in conjunction with the Employment Agreement, Ms. Hammer had at least four separate reasons for why her assertion that she had not waived bringing her IPPEA claims was based on law and fact;

b) Idaho case law prior to this case was vague as to when Idaho public policy prohibited an employee from waiving a statutory claim related to their employment;

c) The District Court previously denied Sun Valley's request for attorney fees pursuant to Idaho Code § 6-2107, making findings that Ms. Hammer had not brought the matter herein without a valid basis in law or fact for doing so, and Sun Valley did not appeal those findings of the District Court;

d) Ms. Hammer obtained extensive opinions of independent legal counsel before filing suit and in proceeding on the appeal herein that her claims were warranted by existing law, or reasonable extensions thereof.

Ms. Hammer has submitted a Memorandum In Support Of Petition For Rehearing Regarding Award Of Attorney's Fees On Appeal Under Idaho Code § 6-2107 and an Affidavit In Support contemporaneously with this motion.

Respectfully Submitted,

Wyatt Johnson Co-Counsel For Appellant

James R. Donoval Co-Counsel For Appellant

PROOF OF SERVICE

To: Kirtlan Naylor

950 W. Bannock St., Suite 610

Boise, ID 83702

The undersigned certifies that a true and correct copy of the foregoing document was mailed via U.S. Mail upon the party identified above at the address indicated therein, by James R. Donoval by 5:00 p.m. on January 11, 2017.

Jame's R. Donoval

Wyatt Johnson

Angstman & Johnson.

3649 N. Lakeharbor Lane

Boise, ID 83703

Ph: (208) 384-8588

Idaho Atty. No. 5858

wyatt@angstman.com

James R. Donoval

1048 N. Torrey Pines Ave.

Eagle, ID 83616

Ph: (312) 859-2029

Idaho Atty. No. 8142

jdonoval@aol.com

Co-Counsel for Appellant Sharon R. Hammer

IN THE SUPREME COURT OF THE STATE OF IDAHO

SHARON R. HAMMER, Appellant-Plaintiff,

vs.

CITY OF SUN VALLEY; NILS RIBI; and DeWAYNE BRISCOE, Respondents-Defendants.

Case No. 43079

From: No. CV-2012-479, Blaine County

MEMORANDUM IN SUPPORT OF PETITION FOR REHEARING REGARDING AWARD OF ATTORNEY FEES ON APPEAL UNDER IDAHO CODE § 6-2107

NOW COMES the Appellant-Plaintiff SHARON R. HAMMER (“Ms. Hammer”), and in support of her Petition For Rehearing Regarding Award Of Attorney Fees On Appeal Under Idaho Code § 6-2107 states as follows:

Introduction

On December 21, 2016, this Court affirmed the findings of the District Court entering summary judgment against Ms. Hammer's claims under the Idaho Protection Of Public Employees Act (Idaho Code § 6-2101, et seq.) (the “IPPEA”), not because Ms. Hammer's allegations of a retaliatory employment termination under the IPPEA were not legitimate, but because the Court found Ms. Hammer had waived her claims under the IPPEA based on the submission of a release and payment of severance at the time of her termination. In fact, there was never a dispute, or finding, by either the District Court or this Court, that Ms. Hammer had not adequately plead a prima facie case of retaliatory conduct by Sun Valley and its officials in terminating Ms. Hammer for the extensive, well documented, harassment she was suffering at the hands of Defendant, Sun Valley City Council member, Nils Ribi ¹ .

After the entry of summary judgment, the District Court denied Sun Valley's request for attorney fees pursuant to Idaho Code § 6-2107, finding that even though summary judgment had been entered that Ms. Hammer had a valid basis in law and fact for bringing her claims under the IPPEA notwithstanding the issues related to a waiver. On appeal, unlike the District Court, this Court awarded attorney fees against Ms. Hammer based on Idaho Code § 6-2107, finding that Ms. Hammer had “no basis in law or fact” for bringing her appeal of the District Court's findings entering summary judgment.

Ms. Hammer is not seeking reconsideration of the affirmation of the dismissal of Ms. Hammer's IPPEA claims because she believes that issues related to her purported waiver of Idaho statutory claims were a matter of first impression with the Court, and that the Court has now made those first impression rulings.

However, Ms. Hammer requests that the Court reconsider and reverse its findings awarding attorney fees under Idaho Code § 6-2107 for several reasons, the most compelling of which is that the District Court itself denied Sun Valley's request for attorney fees under Idaho Code § 6-2107. Sun Valley chose not to appeal those findings. Because Sun Valley chose not to appeal the findings of the District Court denying its request for attorney fees under Idaho Code § 6-2107, this Court was unaware of the District Court's findings previously denying attorney fees under Idaho Code § 6-2107 or the District Court's rationale for doing so, which is still relevant and compelling on appeal. The findings of the District Court that Ms. Hammer had a legitimate basis in law and fact for bringing the matter before the District Court was a significant basis for why Ms. Hammer considered her claims on appeal to be justified as well.

The Employment Agreement And The Supplemental Release

The findings of the Court affirming the dismissal of Ms. Hammer's claims at summary judgment involved the interplay between the Employment Agreement Ms. Hammer entered into in June of 2008, and the Supplemental Release Ms. Hammer signed when she was terminated in January of 2012.

The Employment Agreement included the following provision:

“SECTION 3. TERMINATION AND SEVERANCE PAY

A. Employer, acting through the Mayor, may terminate Employee's employment, without cause, for any reason or no reason. Any such decision to terminate shall occur only after the Mayor consults with each member of the City Council. Upon such termination, Employer shall pay Employee, as severance pay, a lump sum cash payment equal to six (6) months, base salary described in Section 5, Subsection A.

The severance payment herein is intended to be Employee's sole exclusive remedy for any and all claims for damages of any kind arising from a termination without cause and such severance payment is hereby agreed to be reasonable, fair and equitable by both parties to this Agreement. Accordingly, Employee waives her right to bring a claim of any kind for damages against employer arising from a termination without cause. Consequently, receipt of the severance payment is subject to execution of a release of all claims against the City of Sun Valley. A termination without cause shall not entitle Employee to an informal review under any section of the City of Sun Valley Personnel manual.” (Rec. 1023-1028.)

Ms. Hammer was terminated on January 19, 2012. After several communications between Ms. Hammer's counsel and Sun Valley's attorney asserting Ms. Hammer would not be releasing any non-salary related claims in return for the payment of the severance described in the Employment Agreement (Rec. 1036; Supp.Rec. 53; Supp.Rec. 59-61), and Sun Valley responding that she must submit a release which waived “all claims” otherwise Sun Valley would not pay her the severance described in the Employment Agreement (Rec. 1488; Supp.Rec. 69; Supp. Rec. 71-72), on January 23, 2012, Ms. Hammer submitted to Sun Valley a Supplemental Release which stated as follows (Supp.Rec. 78-79):

“SUPPLEMENTAL RELEASE PURSUANT TO CITY ADMINISTRATOR EMPLOYMENT AGREEMENT

Upon payment of the severance payment required pursuant to Section 3. A. of the City Administrator Employment Agreement dated June 1, 2008, I release the City Of Sun Valley of any claims defined in Section 3. A. of the City Administrator Employment Agreement as were intended when the City Administrator Employment Agreement was entered into on June 1, 2008.”

(Emphasis added.)

Ms. Hammer has contended that the Supplemental Release did not specifically waive claims under the IPPEA or “all claims” as Sun Valley had demanded. There was evidentiary support of Ms. Hammer's contentions. Sun Valley Treasurer Michelle Frostenson confirmed that all of the “severance” was considered wages for past services rendered and that none of the “severance” was considered as settlement of non-wage types of claims (thus employment taxes were withheld on the entire amount of “severance”) (Supp.Rec. 81' Supp.Rec. 36-37). Ms. Hammer was then paid the severance required by the Employment Agreement.

The Court's Findings

Contrary to Ms. Hammer's contentions, this Court found Ms. Hammer had unqualifiedly released “all claims.”

The Court found that Ms. Hammer had “no basis in law or fact” under Idaho Code § 6-2107 for even bringing the appeal and awarded attorney fees against Ms. Hammer for filing and proceeding on the appeal. While the Court found against Ms. Hammer, she seeks reconsideration of the Court's findings that Ms. Hammer had “no basis in law or fact” for bringing the appeal because she presented several legitimate, albeit unsuccessful, arguments on appeal.

a. Because of the interplay and language of the Supplemental Release in conjunction with the Employment Agreement, Ms. Hammer had at least four separate reasons for why her assertion that she had not waived bringing her IPPEA claims was based on law and fact.

Historically, this Court has found that where the matters being litigated on appeal are matters of first impression, assessing attorney fees against an unsuccessful appellate litigant is not warranted, Byber v. Isaac, 145 Idaho 251, 261, 178 P.3d 616 (Id. Sup.Ct. 2008).

Interpretations of contract are mixed questions of law and fact. To the extent the interpretation of this contract was a question of law, it was necessarily a matter of first impression. This was unique contractual language that has never been specifically presented to this Court before. Notwithstanding For at least four (4) reasons associated with the interface and language of the Supplemental Release and Employment Agreement, Ms. Hammer asserts that she had a reasonable basis in law and fact to have brought this appeal without being assessed attorney fees under Idaho Code § 6-2107.

Ms. Hammer's Subjective Intent As To Whether She Had Waived IPPEA Claims At The Time Of The Submission Of The Supplemental Release Was A Valid Issue On Appeal.

One argument before the Court was that the Supplemental Release should be interpreted that Ms. Hammer was only releasing claims that she subjectively intended to release at the time she signed the Employment Agreement. This was premised on the Supplemental Release language that indicates the release applied to claims “as were intended when the City Administrator Employment Agreement was entered into on June 1, 2008.” Ms. Hammer submitted Affidavits which confirmed that she did not intend to waive statutory claims if she was terminated and received severance, either at the time she signed the Employment Agreement or at the time she submitted the Supplemental Release (Rec. 107-108; Rec. 85-87). Although the Court disagreed, Ms. Hammer had, nonetheless, presented an argument based upon the actual language used in the release and supported the position with evidence in record.

There have been no Idaho cases which have dealt with the precise “intent” language that Ms. Hammer included in the Supplemental Release. There was no clear authority that such language was ineffective or irrelevant to whether Ms. Hammer preserved her right to bring IPPEA claims in a situation such as this. The fact is that until this Court made findings that the Supplemental Release was an unambiguous release of Ms. Hammer's IPPEA claims, Ms. Hammer had a reasonable and arguable basis for contending she had not waived her IPPEA claims by the submission of the Supplemental Release.

Another argument was that, to the extent the “intent” language of the Supplemental Release was effectively incorporating the Employment Agreement, the terms of the employment did not require a waiver of all claims. The evidence that neither Ms. Hammer nor the Mayor of the City of Sun Valley had intended the Employment Agreement to broadly waive IPPEA claims presented at least a plausible, albeit unsuccessful, argument of mutual mistake.

In addition, Ms. Hammer pointed out at hearing that the Employment agreement indicated that releases for termination “without cause” were limited to those “arising from a termination without cause” which is different from a release of all claims. However, the same paragraph also referred to a release of “all claims.” Ms. Hammer contended that this inconsistency created an ambiguity that should allow consideration of extrinsic evidence. Ms. Hammer also pointed to the extrinsic evidence in record, including the testimony of the Mayor of Sun Valley, that supported the position that the release was limited, and not of “all claims.” Again, this was an argument that had support in the record, even if it was not the prevailing theory on appeal.

Ms. Hammer's arguments in support of her interpretation of the Supplemental Release were based on arguable legal theories and had supporting evidence in the record. The Court should not have found that her position regarding the waiver was without any basis in law or fact under Idaho Code $ 6-2107.

Idaho And Federal Case Law Had Previously Found That The Phrase “Severance”, Without Any Other Modifier, Meant Only Compensation for Past Services Rendered, And Did Not Include The Release Of Non-Wage Related Claims.

One critical aspect of Ms. Hammer's argument focused, essentially, upon whether there had been consideration sufficient to support a waiver. This argument was based on past precedent of this Court regarding the nature of “severance” payments.

Before this Court, as well as before the District Court, Ms. Hammer provided Idaho case law that indicated that the phrase “severance”, by definition, applied only to past services rendered by an employee, and not to non-service related claims such as statutory claims, including Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (Id. Sup.Ct. 1984) and Huber v. Lightforce USA, Inc., 2016 WL 824853 (Id. Sup.Ct. 2016 (which this Court had just issued in March of 2016). In addition, Ms. Hammer submitted a U.S. Supreme Court case named U.S. v. Quality Stores, 134 S.Ct. 1395 (U.S. Sup.Ct. 2014), which confirmed that “severance”, by definition, applies only to past services rendered by an employee. The argument was that, applying this interpretation, there was no consideration in this case that would support the release.

Ms. Hammer relied on Parker v. Underwriters Laboratories, 140 Idaho 517, 96 P.3d 618 (2004) (issued before either U.S. v. Quality Stores or Huber v. Lightforce), in which an employee was paid “enhanced (emphasis added) severance benefits” to waive non service related claims. The logical extension is that where Ms. Hammer was only paid “severance” and not “enhanced” benefits to waive her IPPEA claims, there was no consideration. Contrary to Ms. Hammer's position, the Court in its December 21, 2016 ruling only discussed Parker v. Underwriters in finding that “the use of the term 'severance payment' does not necessarily mean that it is compensation for past services.” In effect, the Court has clarified Idaho law in this respect. Without having the benefit of this clarification prior to bringing her appeal, Ms. Hammer was bringing a reasonable argument, based upon existing precedent at the time.

First, in Parker v. Underwriters the payment to the employee in that case was described as “enhanced (emphasis added) severance benefits” with the employees in that case still being paid regular “severance” if they did not sign the release(s) at issue in that case. The logic of Parker v. Underwriters is that in order for “severance” to include other than service related claims it must be designated as “enhanced” or some other description, beyond mere “severance”, to alert the employee to that fact. As the Employment Agreement did not indicate that what Ms. Hammer was receiving was “enhanced severance”, she had a legitimate claim that the “severance” she was receiving was only for past services rendered, and not for the release of IPPEA claims.

Second, in Johnson v. Allied Stores, Ruber v. Lightforce and U.S. v. Quality Stores this Court and the U.S. Supreme Court described just the opposite of what this Court has now found, namely, that the use of the phrase “severance” in regards to the termination of an employment arrangement describes only past services rendered and not other non-service related claims. Ms. Hammer had the right to rely on that legal precedent in support of her claim that the “severance” she received related only to past services rendered.

] Ms. Hammer provided significant facts and case law to support her position that “severance”, as described in her Employment Agreement, without any other modification such as “enhanced”, should have solely meant compensation for her past services rendered to Sun Valley and not a release of her IPPEA claims. Ms. Hammer should not be assessed attorney fees under Idaho Code § 6-2107 in a situation where the Court is clarifying its definition of a contractual phrase such as “severance” in this case itself.

Until This Court Made Final Decisions That The Intent Of Ms. Hammer And Former Mayor Willich Was Irrelevant To Whether The Employment Agreement Was Intended To Waive Statutory Claims, Ms. Hammer Had a Reasonable Basis For The Argument

Ms. Hammer provided affidavits of herself (Rec. 1016-1020; Supp.Rec. 84-92) and former Sun Valley Mayor Wayne Willich (“Former Mayor Willich”) (Rec. 661-672; Rec. 1042-1044; Supp.Rec. 113-117) that certified, under oath, that when the Employment Agreement was entered into in June of 2008, that neither intended that Ms. Hammer was required to waive any statutory claims if she was ever terminated “without cause” and paid the severance described in the Employment Agreement.

The Employment Agreement was drafted by then Sun Valley City Attorney Rand Peebles.

Ms. Hammer asserted that based on the legal principle that language of a contract is interpreted and construed against the drafter of a contract, Federal National Mortgage Ass'n. v. Hafer, 158 Idaho 694, 702-703, 351 P.3d 622 (Id. Sup.Ct. 2015) (i.e. Sun Valley in this case) and that Former Mayor Willich and Ms. Hammer both confirmed that neither intended that Ms. Hammer was required to waive statutory claims if she was ever terminated “without cause” –Ms. Hammer had a legitimate basis for asserting that the Employment Agreement was never intended to require Ms. Hammer's waiver of statutory claims.

As is the case with the other matters in this section, the specific type of language in Ms. Hammer's Employment Agreement has never been the subject of an Idaho case. At a minimum, Ms. Hammer had the right to assert that the language of the Employment Agreement was ambiguous as to whether she had waived any future IPPEA claims when she entered into the Employment Agreement, because the IPPEA or the phrase “statutory claims” was not specifically designated in the Employment Agreement, without being subject to an attorney fee claim under Idaho Code § 6-2107 for failing to assert any law or fact to support her claims. If the Employment Agreement was ambiguous, then the intent of both Ms. Hammer and Former Mayor Willich mattered as to defining the Employment Agreement. Until this Court made final determinations as to the unambiguous nature of the language of the Employment Agreement, Ms. Hammer had the right to assert that it was ambiguous, and the intent of the parties was at issue, without being subject to an attorney fee assessment under Idaho Code § 6-2107 for doing so.

b. Idaho case law prior to this case was vague as to when Idaho public policy prohibited an employee from waiving a statutory claim related to their employment.

As has been stated, where the matters being litigated on appeal are matters of first impression, assessing attorney fees against an unsuccessful appellate litigant is not warranted, Byber v. Isaac. In regards to whether Ms. Hammer's waiver of IPPEA claims should have been prohibited based upon a public policy prohibiting the waiver of Idaho statutory claims in employment settings, this was certainly a case of first impression.

Prior to this case, no Idaho case has directly confronted the issue of whether an employee could waive Idaho statutory claims related to the employee's termination. And certainly, no Idaho case described under what circumstances a waiver of statutory claims in an employment termination setting could be effective.

In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (Id. Sup.Ct. 1985), this Court discussed, in general, that a statutory claim such as workmen's compensation claims could not be waived by an employee. However, Lee v. Sun Valley Co. was a case related to the waiver of statutory claims for outfitters and tour guides ² , it was not a case related to employment termination matters. And the language of this Court related to whether a statutory claim could be waived in an employment matter was more dicta than findings, with the Court looking to findings of other states as to whether statutory rights may be waived by contract (stockholder right to dissolution, antenuptial agreements, alimony and support agreements, inheritance rights, usury defense) and when statutory rights cannot be waived by contract (minimum wage, property exemptions in collection and workmen's compensation, statute of limitation, unemployment compensation, statutory right of redemption).

In regards to employment matters, this Court went on to state:

“In the case of workmen's compensation, Idaho Code § 72-318 invalidates any agreement between an employer and an employee exempting the employer from its duties under the workmen's compensation statute. ‘Even though no express provisions be contained in the [workmen's compensation] statute, it would seem that any attempt to nullify or limit the operation of law must be held to be invalid as being against public policy’ (citation omitted).”

In Lee v. Sun Valley Co., this Court went on to state:

“We do not attempt to articulate a general rule applicable to all statutes. However, we do hold that where the legislature has addressed the rights and duties [pertaining to personal injuries] ․ then such duties become a 'public duty' within the exception to the general rule validating exculpatory contracts.”

By confirming in Lee v. Sun Valley Co, that this Court was not articulating a general rule related to whether an Idaho statute can be contractually waived pursuant to “public policy” factors, but then finding that Idaho Code § 6-1206 and presumably workmen's compensation claims could not be contractually waived, this Court has left litigants, such as Ms. Hammer, with only one option when faced with the issue of whether the waiver of a particular Idaho statute pursuant to contract is against Idaho “public policy” - and that is to raise the issue before this Court, which is what Ms. Hammer did.

Because the issue of waivers of IPPEA claims had not been previously raised, there was, likewise, no clear precedent for when an IPPEA claim could be waived (either at the time of the signing of an employment agreement (i.e. prospectively) or even at the time of termination (as the Court found herein)).

Because of the lack of specific precedent from this Court related to what the “public policy” of this Court is s related to employment termination matters or the IPPEA, Ms. Hammer should not have been assessed attorney fees under Idaho Code § 6-2107. The public policy argument by Ms. Hammer did have a reasonable basis in law and fact. Ms. Hammer should not have been assessed attorney fees under Idaho Code § 6-2107 for doing so.

c) The District Court previously denied Sun Valley's request for attorney fees pursuant to Idaho Code § 6-2107, making findings that Ms. Hammer had not brought the matter herein without any basis in law or fact, and Sun Valley did not appeal those findings of the District Court.

Subsequent to the dismissal of Ms. Hammer's IPPEA claims at summary judgment, Sun Valley sought an attorney fee ruling from the District Court under both Idaho Code $12-117 and Idaho Code § 6-2107 (Donoval Aff., Para. 15). Idaho Code § 12-117 provides for attorney fees where the plaintiff did not have a “reasonable basis (emphasis added) in fact or law” for filing the law suit. Idaho Code § 6-2107, which applies only to matters brought under the IPPEA, allows attorney fees where the case is brought under the IPPEA “without basis (emphasis added) in law or in fact”. The primary difference between a request for attorney fees under Idaho Code § 12-117 and Idaho Code § 6-2107 is that under Idaho Code § 12-117 the claims of the plaintiff must have been considered to have a reasonable basis in fact or law for bringing its claims, while under Idaho Code § 6-2107 the plaintiff is only assessed attorney fees if the claims are wholly without any basis in law or in fact.

After the entry of summary judgment, Eric Swartz ³ notified Ms. Hammer that he was withdrawing as her legal counsel (Donoval Aff, Para. 13)⁴ . Attorney Wyatt Johnson replaced Eric Swartz as Ms. Hammer's counsel before the District Court to continue to oppose the entry of any attorney fees against Ms. Hammer (Donoval Aff., Para. 17). Wyatt Johnson then filed additional responsive pleadings in opposition to the request for attorney fees, including an Affidavit of Ms. Hammer (Donoval Aff., Para. 18, Exhibit F).

On July 1, 2015, the District Court entered its Opinion And Order On Plaintiff's Motion To Disallow Costs And Attorney Fees, granting mandatory costs to Sun Valley, but denying any attorney fees under both Idaho Code § 12-117 and Idaho Code § 6-2107 (Donoval Aff., Para. 19, Exhibit G). First, the District Court discussed whether Sun Valley was entitled attorney fees under Idaho Code § 12-117. Citing Idaho case law, the District Court described that simply because a plaintiff lost a case does not mean it was brought frivolously or without foundation. In denying the entry of attorney fees under Idaho Code § 12-117 the District Court stated:

“In pursuing this legal argument based on intent of the parties at signing, Hammer's attorneys obtained additional affidavits detailing that the release was not intended to release Sun Valley from all claims ․ These affidavits demonstrated more than just the defendant's subjective intent. The court ultimately found against thus argument, and determined that waiver was unambiguous on its face ․ Though the Court found in favor of the Defendants, Hammer presented a legal argument that was not frivolous or without foundation ․ Overall, it is clear from the circumstances of this case that the action was not brought without some basis in law and fact. There was thought and effort expended to determine whether to file suit.”

Then the District Court denied Sun Valley's attorney fee request under Idaho Code § 6-2107 by confirming that Idaho Code § 6-2107 has an even higher standard for the entry of attorney fees than Idaho Code § 12-117 in that under Idaho Code § 6-2107 a prevailing defendant must demonstrate that the plaintiff acted without any basis in law or fact, not just without a reasonable basis in fact or law as is described in Idaho Code § 12-117. In regards to the waiver issue, the District Court found that:

“As shown above, the Plaintiff's argument had a reasonable basis in law and fact. Furthermore, the Court would choose not to award fees in this case based on an analysis of factual circumstances and its discretion. Therefore, the Defendants are not entitled to nor does the Court award attorney's fees.”

The District Court extensively analyzed the issue of whether Ms. Hammer had a sufficient basis in law and fact under Idaho Code § 6-2107 after handling the case for almost three years and came to the conclusion that Ms. Hammer had raised substantial legal issues and facts to support both her underlying IPPEA claims as well as the issues related to whether she waived her IPPEA claims associated with the submission of the Supplemental Release.

Ms. Hammer contends that the District Court's analysis was sound and should be persuasive in this instance. Furthermore, the District Court's findings were a substantial reason for why Ms. Hammer believed she had a legitimate basis for bringing the appeal.

d. Ms. Hammer utilized independent legal counsel before filing suit and in proceeding on the appeal herein to assist with evaluation of her claims.

Ms. Hammer Retained Attorney Eric Swartz to Research and Evaluate Her Legal Position Prior to Filing Suit.

So that there is no misconception that Ms. Hammer's attorney and husband, Jim Donoval, brought this action carelessly, or as a matter of spite, the Court should be aware of the care and effort that was invested in this matter prior to, and up through appeal.

In February and March of 2012, well before the filing of this case before the District Court (i.e. June of 2012), Eric Swartz assumed the role of lead counsel for Ms. Hammer's (Donoval Aff, Para. 6-8). As part of his representation of Ms. Hammer, Eric Swartz demanded that he be provided total control over the decisions related to Ms. Hammer's matters. (Donoval Aff, Para. 7, Exhibit A).

Mr. Donoval agreed that Eric Swartz would be solely responsible for all matters between Ms. Hammer and Sun Valley, and that Mr. Donoval was no longer Ms. Hammer's attorney for those matters (Donoval Aff., Para. 8).

Due diligence was performed at the outset. In June of 2012, Joy Vega, Eric Swartz's associate, prepared an extensive memo (Donoval Aff., Para. 9, Exhibit B) in regards to the waiver issue ⁵ . The memo discussed that there is a presumption against a waiver of statutory rights, that the validity of a release is based on the totality of circumstances, and that a release of statutory claims must be supported by consideration. In conclusion, the memo stated that:

“Based upon the terms of the Supplemental Release and the CAEA, as well as the circumstances surrounding Ms. Hammer's execution of the Supplemental Release, it is unlikely that the City will succeed in proving that she released or waived her right to prosecute violations of her civil rights against government actors. In the event that the City raises waiver as an affirmative defense to any complaint it will bear the burden of proof on the issue. And, the question of whether Ms. Hammer voluntarily and knowingly signed the release of such rights will be a triable issue of fact.” (Donoval Aff., Para. 9, Exhibit B)

Even after the District Court dismissed the IPPEA case, and several of Ms. Hammer's claims were dismissed for the same reason in a separate but related federal case ⁶ (which Eric Swartz was also counsel for), Eric Swartz continued to advise that Ms. Hammer had a legitimate basis for appeal of the waiver issues. In a July 28, 2015 email to Mr. Donoval (Donoval Aff., Para. 20, Exhibit H), Eric Swartz stated:

“I know you are an attorney, and know that you have your own opinions about things, but it seems to me that there is a strong appeal. The court completely omits your claims in both decisions; looks outside of the release but disregards other evidence about its intent; among other issues ․

When you and Sharon told me what you understood the release to be before the case even started, and I reviewed your and Naylor's exchange on the matter, and seeing how Naylor answered the complaint versus filing a motion to dismiss, it sure seems to me that the court has created an agreement here that was not intended. Perhaps the waiver/release could have been drafted more clearly but, particularly in light of the communications, I trusted your and Sharon's interpretation more than the interpretation advanced by SV long, long after the commencement of litigation.

Good luck on the state appeal. I sure feel Brody got it wrong by dismissing the individuals and by disregarding your and Sharon's testimony, weighing Sharon's testimony, and disregarding your and Naylor's communications about the release yet looking outside the release to interpret the same. I don't know what was introduced in the record after my withdrawal, but I know the record was strong when I left it. I wish I was able to stay on to address the statutory interpretation on appeal. That's is going to be a big issue for years to come. If they follow the plain words of the statute Sharon's claim (even if the waiver/release issue does not go her way) should be alive and well.” (Donoval Aff., Para. 20, Exhibit H)

Attorney Wyatt Johnson Was Retained To Provide Guidance and Counsel on Appeal

In March of 2015, after Mr. Swartz' withdrawal, Mr. Donoval assumed a more active role in the case. Notwithstanding, Ms. Hammer also retained attorney Wyatt Johnson as her counsel in the District Court case to oppose the petition for attorney's fees. (Donoval Aff., Para. 17). Mr. Donoval and Mr. Johnson worked as a legal team on this matter from that point forward. Mr. Donoval prepared and filed the Notice Of Appeal. Wyatt Johnson continued to also act as Ms. Hammer's counsel in regards to the appeal herein, discussing appeal issues as early as July of 2015. Because of the extensive attorney fees that Ms. Hammer had already incurred in the matter that Mr. Donoval would write a substantial portion of the appeal briefs based on Eric Swartz's prior work, and that Wyatt Johnson would review and assist in the preparation of the briefs and make oral argument before the Court. (Donoval Aff., Para. 21)

Wyatt Johnson spent considerable time and effort between November 12, 2015 and when the Amended Appellant's Brief was filed on January 14, 2016 advising Mr. Donoval on the issues raised in the Appellant's Amended Brief and law related to those issues (Donoval Aff., Para. 22). During that period, Wyatt Johnson spent at least 14 hours assisting Mr. Donoval in preparing the Amended Appellant's Brief and providing Mr. Donoval with guidance as to the issues raised and the law cited in the Amended Appellant's Brief (Donoval Aff, Para. 22, Exhibit I).

In addition, Wyatt Johnson also spent considerable time in assisting Mr. Donoval complete the Appellant's Reply Brief that was filed on April 5, 2016 (Donoval Aff, Para. 23). Wyatt Johnson spent 8.7 hours between March 11, 2016 and March 30, 2016 reviewing the drafts of the Appellant's Reply Brief and making suggestions for revisions. Wyatt Johnson went so far as allowing his name to be included as counsel for Ms. Hammer on the Appellant's Reply Brief (Donoval Aff, Para. 23, Exhibit J).

Summary

The entry of attorney fees under Idaho Code § 6-2107 is limited to a situation where an employee bringing suit under the IPPEA provides no basis, whatsoever, in either law or fact, for his/her claims that he/she was retaliated against. Ms. Hammer's claims related to her harassment by Defendant Ribi and that she was being retaliated against for complaining about it were substantial and were never questioned by either the District Court or this Court.

Ms. Hammer provided rational legal argument supported by facts in record in support of her positions on appeal. She obtained extensive advice from legal counsel, other than Mr. Donoval, to ensure she was provided detached perspective from individuals who were not emotionally involved with the underlying case dispute. This was not a case premised on mere spite without any legal basis.

The findings of the District Court denying Sun Valley's request for attorney fees under Idaho Code § 6-2107, which Sun Valley did not appeal, is insightful and should be persuasive on appeal. At the very least, the fact that a sitting District Court judge could perceive some rational legal basis for Ms. Hammer's claims should demonstrate that there was some appreciable legal basis for the action, even if it is unsuccessful. In addition, the District Court's denial of Sun Valley's request for attorney fees under Idaho Code § 6-2107 provided Ms. Hammer with some confidence in filing her appeal that she could do so without the fear a finding by this Court that she did so without a basis in law or fact.

Finally, even with respect to the release, the Court addressed meaningful questions in the law. The further development of case law precedent as to the definition of “severance.” This case has advanced the body of case law regarding whether a “severance” payment may support a waiver of an Idaho statutory claim as part of their termination.

Ms. Hammer's arguments, although unsuccessful, were based on rational legal argument and facts in the record. For that reason, the Court should not allow an award attorney fees against Ms. Hammer under Idaho Code § 6-2107.

Respectfully Submitted,

Wyatt Johnson Co-Counsel For Appellant

James R. Donoval Co-Counsel For Appellant

PROOF OF SERVICE

To: Kirtlan Naylor 950 W. Bannock St., Suite 610 Boise, ID 83702

The undersigned certifies that a true and correct copy of the foregoing document was mailed via U.S. Mail upon the party identified hove at the address indicated therein, by James R. Donoval by 5:00 p.m. on January 11, 2017.

James R. Donoval

James R. Donoval

1048 N. Torrey Pines Ave.

Eagle, ID 83616

Ph: (312) 859-2029

Idaho Atty No. 8142

jdonoval@aol.com

Co-Counsel for Appellant Sharon R. Hammer

IN THE SUPREME COURT OF THE STATE OF IDAHO

SHARON R. HAMMER, Appellant-Plaintiff,

vs.

CITY OF SUN VALLEY; NILS RIBI; and DeWAYNE BRISCOE, Respondents-Defendants.

Case No. 43079

From: No. CV-2012-479, Blaine County

AFFIDAVIT OF JAMES R. DONOVAL IN SUPPORT OF MOTION TO RECONSIDER THE ENTRY OF ATTORNEY FEES UNDER IDAHO CODE § 6-2107

STATE OF IDAHO

County of Ada

I, James R. Donoval, being first duly sworn upon oath, depose and state as follows:

1. I have personal knowledge of the facts contained herein and if called upon to testify about the same, I could do so competently.

2. I am an attorney licensed in Idaho, and have been so since 2009.

3. I am also Ms. Hammer's husband.

4. In November of 2011 through January of 2012, I represented Ms. Hammer related to matters between Ms. Hammer and her employer the City Of Sun Valley (“Sun Valley”), including in regards to the matter of Hammer v. Ribi, et. al., CV-2011-928 (Blaine County) (the “Original IPPEA Case”) which was brought under the provisions of the Idaho Protection Of Public Employees Act, Idaho Code § 6-2101, et seq. (the “IPPEA”) related to a retaliatory investigation of Ms. Hammer by Sun Valley. The Original IPPEA Case was dismissed without prejudice on January 11, 2012.

5. Ms. Hammer was terminated from employment with Sun Valley on January 19, 2012.

6. Subsequent to her termination, Ms. Hammer and I jointly interviewed several attorneys to represent her in regards to further matters related to Sun Valley. Ms. Hammer selected attorney Eric Swartz as her counsel related to matters related to Sun Valley.

7. As part of his representation of Ms. Hammer, Eric Swartz demanded that he be in control of all litigation matters and that I have no authority in regards to litigation decisions and the submittal of matters to courts related to Ms. Hammer. Attached as Exhibit A is a copy of an email from Eric Swartz dated March 28, 2012 to Ms. Hammer and myself indicting that he was requiring that he be in control of Ms. Hammer's matters.

8. I thereafter agreed that Eric Swartz would be Ms. Hammer's legal counsel in regards to matters related to Ms. Hammer, and have total control over any and all future litigation matters between Ms. Hammer and Sun Valley.

9. Between February and June of 2012, Eric Swartz and his associate Joy Vega, spent a considerable amount of time reviewing factual matters related to Ms. Hammer and performed extensive legal research related to whether Ms. Hammer had waived any statutory claims when she submitted a Supplemental Release to Sun Valley in exchange for severance that was included in her 2008 Employment Agreement. The result of Eric Swartz's and Joy Vega's efforts was a Memorandum dated June 12, 2012 attached as Exhibit B.

10. Based on the Memorandum attached as Exhibit B and the legal advice of Eric Swartz, Ms. Hammer agreed to file the matter herein (see emails attached as Exhibit C).

11. At the time the Memorandum attached as Exhibit B was prepared Ms. Hammer had incurred, and paid, Eric Swartz approximately $25,000 for his work on advising Ms. Hammer related to her various claims against Sun Valley and whether Ms. Hammer had a legitimate basis for asserting that she had not waived any statutory claims by submitting the Supplemental Release and receiving the severance payment.

12. After two and one half years of extensive litigation before the District Court, on January 12, 2015, the District Court entered summary judgment against Ms. Hammer's claims herein finding that she had waived her right to bring statutory claims, and in particular claims under the IPPEA, by the submission of the Supplemental Release in return for the severance she was paid as part of her termination.

13. Subsequent to the entry of summary judgment, Eric Swartz notified Ms. Hammer that he was withdrawing as her legal counsel. On March 4, 2015, the District Court granted Eric Swartz leave to withdraw as counsel for Ms. Hammer. By the time of Eric Swartz's withdrawal as Ms. Hammer's counsel, Ms. Hammer had been billed, and had paid, Eric Swartz over $100,000 related to his representation of Ms. Hammer in the matter before the District Court.

14. On January 30, 2015, I filed an Appearance in the matter herein before the District Court (Exhibit D), solely for the purpose of seeking reconsideration of the District Court's entry of summary judgment. On June 8, 2015 the District Court denied Ms. Hammer's request to reconsider the entry of summary judgment.

15. On January 30, 2015, Sun Valley filed a memorandum of costs and fees before the District Court seeking attorney fees under both Idaho Code § 12-117 and Idaho Code $ 6-2107.

16. On February 25, 2015, I filed the Notice Of Appeal herein on Ms. Hammer's behalf in order to ensure that her appeal rights were protected.

17. During January and February of 2015, Ms. Hammer and I interviewed attorneys to replace Eric Swartz as Ms. Hammer's legal counsel in this matter. On March 23, 2015, attorney Wyatt Johnson filed his Appearance on behalf of Ms. Hammer before the District Court (Exhibit E) and thereafter handled all matters related to Sun Valley seeking attorney fees.

18. As part of the submissions to the District Court in opposition to the entry of attorney fees, Ms. Hammer submitted the Affidavit attached herein as Exhibit F (without exhibits) confirming what has been described above.

19. On July 1, 2015, the District Court entered its Opinion And Order On Plaintiff's Motion To Disallow Costs And Attorney Fees (Exhibit G) denying Sun Valley's request for attorney fees under both Idaho Code § 12-117 and Idaho Code § 6-2107.

20. On July 28, 2015, I received the email attached as Exhibit H from Eric Swartz indicating that he continued to believe that Ms. Hammer had legitimate claims on appeal related to the issue of whether she had waived her statutory claims.

21. Subsequent to the denial of Ms. Hammer's request for reconsideration of the entry of summary judgment, Ms. Hammer and I held discussions with Wyatt Johnson related to pursuing the appeal herein. Because of the extensive attorney fees and costs that had already been incurred in the matter, it was decided that I would spend time preparing the briefs in the matter, based on Eric Swartz's previous research and filings before the District Court, and that Wyatt Johnson would review and assist in the preparation of the briefs, and make oral arguments in the appeal before this Court.

22. Between July of 2015 and January of 2016, while Ms. Hammer's Appellant's Brief was being prepared, I spent extensive time with Wyatt Johnson, reviewing the issues being presented in Ms. Hammer's Appellant's Brief. Attached as Exhibit I is a synopsis of the time from Wyatt Johnson's billing invoices to Ms. Hammer, indicating the work Wyatt Johnson spent during that period assisting and reviewing the preparation of Ms. Hammer's Appellant's Brief, totaling fourteen (14) hours.

23. In March of 2016, while Ms. Hammer's Appellant's Reply Brief was being prepared, I also spent extensive time with Wyatt Johnson, reviewing the issues being presented in Ms. Hammer's Appellant's Reply Brief. Attached as Exhibit J is a synopsis of the time from Wyatt Johnson's billing invoices to Ms. Hammer, indicating the work Wyatt Johnson spent during that period assisting and reviewing the preparation of Ms. Hammer's Appellant's Reply Brief, totaling eight and seven tenths (8.7) hours. Wyatt Johnson also agreed to have his name placed on Ms. Hammer's Appellant's Reply Brief as co-counsl in the matter.

24. Ms. Hammer has been billed and has paid Wyatt Johnson in excess of $25,000 for his work as her attorney in these matters since he was retained in March of 2015.

FURTHER AFFIANT SAYETH NAUGHT.

JAMES R. DONOVAL

SUBSCRIBED AND SWORN to before me this 9th day of January, 2017.

Notary Public for Idaho

My Commission expires 5/4/2022

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of January, 2017, a true and correct copy of the foregoing document was served on the following individual(s) by the method indicated:

Kirtlan G. Naylor [X] U.S. Mail NAYLOR & HALES, P.C. [ 1 Fax: 383-9516 950 W. Bannock Street, Suite 610 [ ] Hand Delivery Boise, ID 83702-6103 [ ] Email: kirt@naylorhales.com

JAMES R. DONOVAL

From: Eric Swartz

To: jdonoval

Cc: sharonrhammer

Subject: Re: Issues

Date: Wed, Mar 28, 2012 8:46 pm

This may be unsolicited and unwelcome advice, but you two are in it up to your eyeballs and you need to get out. I say that only after listening very carefully to you both. I know your goals, and I can tell you, that you need to turn complete control over all of this to attorneys before you will even come close to meeting your goals. Whether you choose to fight to the death, or position the matter for a walk away settlement, you need to step back and let someone get you there.

I appreciate that you have turned over Sharon's issues, but before you will ever even come close to reaching your joint goals, you must also turn over the suit against Jim. Jim, only knowing you for a short time, I can tell that you are smart. You both are. I can tell that you are both very competent also. But your smarts and competency are being compromised by your emotions.

Look at the horizon. Get out of the hell-hold. Staying there is a losing battle. The crazies will turn you into one of them. If you do not step back, you will only continue to risk yourselves. Let your attorneys do what needs to be done to help.

I don't care whether it's me or some other attorney, but I am in confident in my advice that you need counsel to handle this mess and help you get where you need to be. It is do-able if you can just let it be done. You're too smart and you have too much at stake not to.

Regards,

Eric B. Swartz

Jones & Swartz PLLC

1673 W. Shoreline Dr.

Boise, ID 83702

Ph. 208-489-8989

Fax 208-489-8988

wvvw.jonesandswartzlaw.com

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MEMORANDUM

To: Ghent File, Sharon. R. Hammer v. City of Sun Valley, 2393.2

From: Joy M.Vega

Date: June 12. 2012; February 6, 2014- amended to reflect current facts only. Current state of the law has not been verified since June 12, 2012.

Re: Validity of a release or waiver of constitutional rights

ISSUES PRESENTED

Whether or not a prospective plaintiff may release or waive her right to prosecute violations of her civil rights against government actors; and, if so, the scrutiny required by the district court in validating such a release of rights.

Whether, under the circumstances surrounding Sharon Hammer's termination without cause on January, 19 2012, the written Supplemental Release Pursuant to City Administrator Employment Agreement is likely to be found as a valid waiver of all of her civil rights actionable under 42 U.S.C. § 1983.

BRIEF SUMMARY OF ISSUES PRESENTED

A prospective plaintiff may release or waive her right to file an action under 42 U.S.C. § 1983 against violative government actors. The plaintiff's release must be voluntary, deliberate and informed. To be valid, the release must be supported by consideration rendered by the government to the plaintiff. Finally, the burden of proving the validity of a release is on the party seeking to rely on a release of a.§ 1983 action.

Here, it is unlikely that the Supplemental Release Pursuant to City Administrator Employment Agreement drafted by Ms. Hammers former counsel, and signed by Ms. Hammer would be found by the district court to constitute a valid and enforceable waiver of her constitutional rights and the City's violations of the same.

LEGAL ANALYSIS OF ISSUES PRESENTED

A. Facts of the Matter

On June 1, 2008, Ms. Hammer was hired by the City of Sun Valley (“City”) as its City Administrator following a national recruitment effort. The terms and conditions of her employment were subject to the laws of the State of Idaho and were farther set forth in the City Administrator Employment Agreement (“CAEA”). (Ex. 1, CAEA.) Ms. Hammer's employment contract was verbally extended by then-Mayor Wayne Willich in the summer of 2011, through June 22, 2012. (Ex. 2, Confirmation of CAEA Extension.)

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Based upon the various policies, procedures and municipal codes adopted by the City. there existed a hierarchy of supervision of City employees within which city council members had no independent authority to direct City employees. City council members did not have any authority to independently request and receive many City documents, and especially not those that were designated as confidential by the City's policies, procedures, rules, regulations, municipal code sections or state laws. City council members” primary duties were to attend council meetings, and adopt policies and ordinances as to the operation of the City.

Regardless of the well-established roles of City employees and council members, certain employees and council members (namely DeWayne Briscoe, Nils Ribi, Robert Youngman, Adam King, Kelly Ek and Michelle Frostenson) openly and continuously attempted to, and in fact did, violate supervisory and confidentiality rules and regulations. Beginning in 2009 through 2011, Ms. Hammer lodged numerous verbal complaints with Mayor Willich. City Attorney King, and Police Chief Cam Daggett. Such complaints often consisted of advising her colleagues that Councilman Ribi continuously attempted to directly instruct her to perform some action for him, or to produce requested information to him, all of which was beyond the scope of his duties and-authority as a council member.

Additionally, Ms. Hammer complained that Councilman Ribi was instructing other City employees to perform acts for him directly and/or produce information to him that he was not authorized to receive. On multiple occasions, Ms. Hammer had to direct City employees to not respond to Councilman Ribi's unauthorized requests for information. After it became obvious that Ms. Hammer would not answer to. or be directed by, Councilman Ribi, he became hostile and aggressive, and engaged in harassing and abusive conduct toward Ms. Hammer. She lodged multiple verbal complaints -with Mayor Willick City Attorney King and Police Chief Daggett regarding Councilman Ribi's ongoing and increasing harassment of her in violation of the City's anti-harassment policy.

Irrespective of the harassing and abusive conduct directed at Ms. Hammer, she remained competent in her position. On November 3. 2011, she was awarded the Certificate of Achievement for Excellence in Financial Reporting by the Government Finance Officers Association of the United States and Canada. This award acknowledged the high standards of the program created and managed by Ms. Hammer, including her demonstration that there existed a constructive “spirit of full disclosure” to clearly communicate the City's financial story. (Ex. 3, GFOA Award)

Yet, in response to the ever increasing hostilities against Ms. Hammer by Councilmen Ribi, Youngman and Briscoe. City employees Michelle Frostenson and Kelly Ek, and City Attorney King, on November 18, 2011, Mayor Willich placed Ms. Hammer on paid administrative leave. (Ex. 4. Notice of Leave.)

In furtherance of her constitutional and statutory rights to be free from retaliatory behavior for advising of another government agent's unauthorized or illegal conduct, Ms. Hammer filed a complaint in the Blaine County District Court alleging claims under the Idaho Protection of Public Employees Act, Idaho Code § 6-2101, et seq, on November 21, 2011 (“2011 IPPEA Case”). Ms. Hammer voluntarily dismissed the 2011 IPPEA Case because she believed an amicable resolution with the offending defendants was likely and would be more plausible if that litigation ceased. The hoped-for resolution did not occur. And, the offenses against Ms. Hammer, by prior actors and new actors, increased in occurrence and effect. On December 27. 2012, Ms. Hammer filed her Amended Complaint for Damages and Demand for Jury Trial under Idaho Code § 6-2101, et seq. (“2012 IPPEA Case”). The 2012 IPPEA Case is pending before the Blaine County District Court.

On December 15, 2012, Ms. Hammer also filed a Charge of Discrimination against the City and Councilman Nils Ribi with the Idaho Human Rights Commission (“IHRC”). That Charge of Discrimination was supplemented on January 3, 2012. On January 31, 2013. Ms. Hammer requested an administrative dismissal of the charge filed with the IHRC. On February 5, 2013. the IHRC granted that request and issued Ms. Hammer a Notice of Administrative Dismissal and Right to Sue. On April 11. 2013, the Equal Employment Opportunity Commission issued Ms. Hammer its Notice of Right to Sue Within 90 Days.

On January 19, 2012, newly seated Mayor DeWayne Briscoe, with the majority vote of the city council terminated Ms. Hammer from her position as City Administrator. The City terminated Ms. Hammer “without cause.” Pursuant to Section 3 of her CAEA, termination without cause required the City to make a severance payment to Ms. Hammer, under the following specific terms:

SECTIONS 3. TERMINATION AND SEVERANCE PAY

A. Employer, acting through the Mayor, may terminate Employee's employment, without cause, for any reason or no reason. Any such decision to terminate shall occur only after the Mayor consults with each member of the City Council. Upon such termination. Employer shall pay Employee, as severance pay, a lump sum cash payment equal to six (6) months, base salary described in Section 5. Subsection A.

The severance payment herein is intended to be Employee's sole exclusive ressedy for any and all claims for damages of any kind arising from a termination without cause and such severance payment is hereby agreed to be reasonable fair and equitable by both parties to this Agreement. Accordingly, Employee waives her right to bring a claim of any kind for damages against Employer arising from a termination without cause. Consequently, receipt of the severance payment is subject to execution of a release of all claims against the City of Sun Valley. A termination without cause shall not entitle Employee to an informal review under any section of the City of Sun Valley Personnel manual (“Personnel Manual”).

(Ex. 1. CAEA, § 3.A., emphasis original.) The day after her termination, Ms. Hammer made a written demand for payment of all wages and compensation due to her pursuant to the CAEA and Idaho Code section 45-601 et seq. (Ex. 5. Wage Demand.) Enclosed with the demand was her Release Pursuant to City Administrator Employment Agreement. (Ex. 5, Wage Demand, 3.) The City determined that the release was unacceptable and rejected it.

Following a series of conversations between James R. Donoval, Ms. Hammer's former attorney, and Kirtlan Naylor, the City's attorney, Ms. Hammer presented her Supplemental Release Pursuant to City Administrator Employment Agreement on January 23, 2012 (“Supplemental Release”), which was accepted by the City. (Ex. 6. Supp'l Release.) Leading up to the Supplemental Release, Mr. Donoval advised the City that:

[T]he causes of action Ms. Hammer possesses for tort including the underlying harassment allegations against Council Member Ribi and several other claims, do not arise “from termination”, they arise out of separate incidents. Nor is it rational to assert that Ms. Hammer would have waived any non-contract damage claims she would have prospectively been entitled to (i.e. personal injury claims) when she signed the agreement. So as I have stated, if the City of Sun Valley proposes to terminate Ms. Hammer without cause and pay her the severance payment in the contract, she will only sign a waiver that states the exact language in the contract․ and nothing more.

(Ex. 7, Donoval Letter.) In line with Ms. Hammers position regarding the scope of Section 3.A. of the CAEA, the Supplemental Release succinctly stated:

Upon payment of the severance payment required pursuant to Section 3.A. of the City Administrator Employment Agreement dated June 1, 2008, I release the City of Sun Valley for any claims defined in Section 3.A. of the City Administrator Employment Agreement as were intended when the City Administrator Employment Agreement was entered into on June 1, 2008.

(Ex. 6, Supp'l Release.) Ms. Hammer was subsequently paid all amounts due to her by the City.

In February 2012, then-former Mayor Willich filed his Affidavit of Wayne Willich Former Mayor of the City of Sun Valley with the IHRC and in support of Ms. Hammers Charge of Discrimination. Within his affidavit Mayor Willich stated:

4) In June of 2008, the City Of Sun Valley entered into a written City Administrator Employment Agreement with Sharon R. Hammer, which was drafted by then Sun Valley City Attorney Rand Peebles. At the time I entered into the City Administrator Employment Agreement with Ms. Hammer, there was no discussion related to whether Section 3. Paragraph A waived any potential discrimination, harassment, retaliation or other non-contract claims should the City Administrator Employment Agreement be terminated, nor was there any intent on my part that Ms. Hammer waive any future discrimination, harassment, retaliation or other non-contract claims if the City Of Sun Valley chose to ever terminate the City Administrate Employment Agreement pursuant to the “without cause” provisions of Section 3. Paragraph A. Any assertions by the City Of Sun Valley or its current attorneys that Ms. Hammer waived any discrimination, harassment, retaliation or tort claims, separate from her contract claims, including her claims presented to the Idaho Human Rights Commission and in her Idaho Protection of Public Employees Act law suit, are simply not based on mine or Ms. Hammer's agreements entered into in June of 2008.

(Ex. 8, Willich Aff., ¶ 4.) At the time the CAEA was entered into by Ms. Hammer and the City in June 2008, Mayor Willich was authorized, and had the supporting unanimous vote of the City council, to act for and on behalf of the City.

B. Legal Analysts and Argument

The City has presented the position that Ms. Hammer has waived any and all claims that she may have against it or any of its employees or elected officials, including all claims for alleged violations of her civil rights pursuant to 42 U.S.C. § 1983.¹ While a prospective civil rights plaintiff may release or waive the right to prosecute constitutional violations, the likelihood that the Supplemental Release will he found by the district court to be a valid release of such claims is low.

1. Inherent in the law is a presumption against the waiver of constitutional rights

“The question of waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law.” Brookhart v. Ohio Dep't of Mental Hygiene & Corr., 384 U.S. 1, 4 (1966).² “There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was 'an intentional relinquishment or abandonment of a known right or privilege.”' Brookhart, 384 U.S. at 4 (citations omitted); see also Salmeron v. U.S., 724 F.2d 1357, 1361 (9th Cir. 1983) (citing Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981)). “A release of claims for violations of civil and constitutional rights must be voluntary, deliberate and informed.” Salmeron, 724 F.2d at 1361 (citing Jones, 648 F.2d at 1203); see also Dalrymple v. Wengler, Case No. 1:10-cv-00494-CWD, 2012 U.S. Dist. LEXIS 39643, at **12-16 (Dist. Idaho Mar. 22, 2012) (citing Faretta v. California, 422 U.S. 806 (1975); Iowa v. Tovar, 541 U.S. 77 (2004): Patterson v. Illinois, 487 U.S. 285 (1988); and Brookhart v. Janis, 384 U.S. 1 (1966)).

In the face of the presumption against waiver, it is the “party seeking to rely on a release of a § 1983 action [that] has the burden of proving its validity.” Avalos v. Baca, 596 F.3d 583. 590 (9th Cir. 2010) (citing Jones v. Taber, 648 F.2d 1201, 1203-04 (9th Cir. 1981)): see also Brewer v. Williams. 430 U.S. 387, 404 (1977) (stating that the State bears the burden to prove “an intentional relinquishment or abandonment of a known right or privilege”). Here, it would be the City's burden to prove that, based upon the totality of the circumstances Ms. Hammer knowingly, voluntarily, and deliberately waived every constitutional right to which she is inherently entitled to when she signed the Supplemental Release.

2. Validation of a release must be made upon the totality of the circumstances

The scope and validity of the Supplemental Release as a waiver of Ms. Hammer's constitutional rights must be examined by the court within the context of the particular facts of this matter. “Whether such a release was voluntarily executed is a question of fact to be determined from all the circumstances.” Salmeron v. U.S., 724 F.2d 1357, 1362 (9th Cir. 1983) (citing Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981): cf. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (establishing similar test for voluntariness of fourth amendment waiver in a consent search)). Release agreements must be scrutinized by the court on a case-by-case basis. Town of Newton v. Rummy, 480 U.S. 386. 392-394 (1987) (plurality opinion); Brookhart, 385 U.S. at 4-5. Some factors for consideration include. “the [individual's] education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Dalrymple, Case No. 1:10-cv-00494-CWD, 2012 U.S. Dist. LEXIS 39643, at ** 15-16 (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004)).

Other factors of importance for consideration by the court include the participation of plaintiff's counsel in preparation or review of the purported waiver of rights, and the existence of a coercive atmosphere. “Although legal representation is an important factor in assessing the voluntariness of a release of federal rights, it is not dispositive.” Salmeron, 724 F.2d at 1362 (9th Cir. 1983). A prospective civil rights plaintiff's execution of a waiver of rights may be deemed coerced, even though her counsel advised that she sign it. Salmeron, 724 F.2d at 1362. Consequently, the court must consider the presence of a noncoercive atmosphere for the execution of the release, or how significant is the absence of such an atmosphere.” Avalos, 596 F.3d at 590 (9th Cir. 2010) (citing Jones v. Taber, 648 F.2d 1201, 1204 (9th Cir. 1981)).

Here, at the time the Supplemental Release was signed. Ms. Hammer had endured over two years of harassing and abusive behavior against her by certain City officials. While she loved her job, Ms. Hammer's complaints to the Mayor, the City Attorney, and the Police Chief rendered no change in behavior, and likely worsened the circumstances of abuse. Upon being terminated without cause from her position as City Administrator, Ms. Hammer was faced with two choices: sign a release of claims as required by the CAEA and receive the stated severance pay, or refuse to sign a release of claims and forego payment of any severance pay. (Ex. 1, CAEA.) In order to secure her immediate economic wherewithal, Ms. Hammer was forced to release those certain claims as stated in the CAEA. However, Ms. Hammer did not do so blindly. She worked together with her attorney (who had previously disclaimed any waiver of non-contract based claims to the City) to draft the language in the Supplemental Release. (Ex. 7, Donoval Letter; Ex. 6, Supp'l Release.) After signing the Supplemental Release, Ms. Hammer's position regarding the scope of release of claims was affirmed by Mayor Willich in his affidavit before the IHRC. (Ex. 8, Willich Aff., ¶ 4.)

The facts surrounding Ms. Hammer's signing of the Supplemental Release show that she only voluntary, deliberately and knowingly “waive[d] her right to bring a claim of any kind for damages against [the City] arising from a termination without cause.” (Ex. 1, CAEA, § 3.A. emphasis original; Ex. 6, Supp'l Release.) Neither the Supplemental Release nor the CAEA make any mention that Ms. Hammer was waiving her federal constitutional rights, or her state-based tort claims, or the City's liability for violations thereof. (Id.) No language within either document purported to waive a right to sue conferred upon Ms. Hammer by a federal statute – namely 42 U.S.C. § 1983. Based upon the language of the Supplemental Release and the facts surrounding the same, it is unlikely that the court would read into the Supplemental Release any waiver of Ms. Hammer's constitutional rights.

3. A release of constitutional claims must be supported by consideration

In addition to the court finding sufficient facts that prove a knowing, voluntary and deliberate waiver of her constitutional rights, the court must also find that the release of such claims was supported by consideration: otherwise it is an unenforceable promise. “Under federal law. a valid release must be supported by consideration.” Salmeron, 724 F.2d at 1362 (citing Maynard v. Durham & S.R. Co., 365 U.S. 160, 162-63 (1961) (release under the FELA); Paccon, Inc. v. United States, 185 Ct. CI. 24, 399 F.2d 162, 172 (1968); A.R.S., Inc. & National Truck Rental Co., Inc. v. United, States, 157 Ct. CI. 71 (1962)). “It is elementary law that giving a party something to which he has an absolute right is not consideration to support that party's contractual promise.” Salmeron, 724 F.2d at 1363.³

The court should look at the language of the waiver itself to determine what, if any, consideration was given by the government Salmeron, 724 F.2d at 1362. Here, no express consideration was given for release of constitutional claims. The CAEA stated that Ms. Hammer would receive severance pay, or compensation for past employment services., “'for any and all claims for damages of any kind arising from a termination without cause.” (Ex. 1, CAEA, § 3.A.) Neither the Supplemental Release nor the CAEA contain a term of consideration for the waiver of any constitutional right. Further, the intent of the CAEA did not extend to any past or future non-contract claims- (Ex. 8, Willich Aff., ¶ 4.) Since the intent of the CAEA did not extend to any non-contract claims that may be held by Ms. Hammer, the Supplemental Release could not have been supported by consideration for the release of such claims.

CONCLUSION

Based upon the terms of the Supplemental Release and the CAEA, as well as the circumstances surrounding Ms. Hammers execution of the Supplemental Release, it is unlikely that the City will succeed in proving that she released or waived her right to prosecute violations of her civil rights against government actors. In the event that the City raises waiver as an affirmative defense to any complaint it will bear the burden of proof on the issue. And. the question of whether Ms. Hammer voluntarily and knowingly signed the release of such rights will be a triable issue of fact.

From: Sharon Hammer

To: Joy Vega

Cc: Eric Swartz ; jdonoval

Subject: Re: 2391.2 Hammer v. City of Sun Valley Amended IPPEA Complaint

Date: Mon, May 21, 2012 10:03 pm

Yes, I am confirming that I would like to refile the IPPEA complaint.

Sharon Hammer

Sent from my iPhone

On May 21, 2012, at 1:30 PM, Joy Vega wrote:

Sharon:

In light of the City's rejection of your most recent offer of compromise, and its silence as to any counteroffer, I would like to begin drafting the amended IPPEA complaint. It would be ideal to have the pleading in the mail to the Blaine County Court by Friday. After it is filed, we have six months to serve it on the City. I would like to confirm that you are in fact interested in re-filing the IPPEA complaint. Please advise. Thank you.

Regards,

Joy

Joy M. Vega, Esq.

Jones & Swartz PLLC

1678 W Shoreline Dr, Ste 200 [83702]

PO Box 7808

Boise, ID 83707-7808

Phone: (208) 489-8989

Fax: (208) 489-8988

www.jonesandswartzlaw.com

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From: Sharon Hammer

To: jdonoval

Cc: eric ; joy

Subject: Re: Settlement and Law Suit

Date: Wed, Jun 13, 2012 4:12 pm

Eric: although the last thing I wanted was to file a lawsuit, l do not feel that I have a choice. They have done so much damage to my professional reputation, I don't know If i will ever find another job. I had a telephone interview yesterday for a town in AZ and we spent 15 of the 30 minutes talking about SV. You have no idea how devastating this is for me. i very much enjoyed my work I get back to SV late afternoon tomorrow.

Sharon Hammer

Sent from my iPhone

Filed by Fax 1/30/15

James R. Donoval

4110 Eaton Ave., Suite D

Caldwell, ID 83607

Ph: (312) 859-2029

Fax: (208) 649-1603

Idaho Atty No. 8142

jdonoval@aol.com

Associated Attorney for Plaintiff Sharon R. Hammer

IN THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BLAINE

SHARON R. HAMMER, Plaintiff,

vs.

CITY OF SUN VALLEY; NILS RIBI; and DeWAYNE BRISCOE, Defendants.

Case No. CV-2012-479

ASSOCIATED APPEARANCE OF ATTORNEY JAMES R. DONOVAL FOR RECONSIDERATION OF ENTRY OF SUMMARY JUDGMENT PURPOSES ONLY

NOW COMES James R. Donoval, and on behalf of the Plaintiff Sharon R. Hammer, enters his Associated Appearance For Reconsideration Of Entry Of Summary Judgment Purposes Only.

James R. Donoval Associated Counsel For Ms. Hammer Solely For Summary Judgment Reconsideration Purposes

Sharon R. Hammer Plaintiff

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ORIGINAL

FAX FILED DATE: 3-33-15

Wyatt Johnson

ANGSTMAN JOHNSON

3649 Lakeharbor Lane

Boise, Idaho 83703

Telephone: (208) 384-8588

Facsimile: (208) 853-0117

Johnson ISB: 5858

Attorney for Plaintiff

IN THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BLAINE

SHARON R. HAMMER, Plaintiff,

vs.

CITY OF SUN VALLEY; NILS RIBI; and DeWAYNE BRISCO, Defendants,

Case No. CV-2012-479

NOTICE OF APPEARANCE

ANGSTMAN JOHNSON, gives notice to the Court and all interested parties of their representation of Plaintiff Sharon Hammer in the above-entitled matter. The Court and all parties are requested to make note of said appearance.

DATED this 23rd day of March, 2015.

WYATT JOHNSON Attorney Plaintiff

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Wyatt Johnson

ANGSTMAN JOHNSON

3649 N. Lakeharbor Lane

Boise, Idaho 83703

Telephone: (208) 384-8588

Facsimile: (208)853-0117

Johnson ISB: 5858

Attorney for Plaintiff

IN THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BLAINE

SHARON R. HAMMER, Plaintiff,

vs.

CITY OF SUN VALLEY; NILS RIBI; and DeWAYNE BRISCOE, Defendants.

Case No. CV-2012-479

AFFIDAVIT OF SHARON R. HAMMER IN OPPOSITION TO SUN VALLEY'S MEMORANDUM OF COSTS AND FEES

STATE OF IDAHO

County of Ada

I, Sharon R. Hammer, being first duly sworn upon oath, depose and state as follows:

1. I have personal knowledge of the facts contained herein and if called upon to testify about the same, I could do so competently.

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The Basis For A Supplement

2. Attached as Exhibit A is a true and accurate copy of an email that was sent to myself and my husband James R. Donoval (“Mr. Donoval”) by my former attorney Eric Swartz (“Attorney Swartz”) on March 26, 2012 confirming that Attorney Swartz would be in “complete control” of litigation that I was contemplating between myself and my former employer Sun Valley.

3. Based on Attorney Swartz's determination that he be required to be in “complete control” of litigation between myself and Sun Valley, including the matter herein, Attorney Swartz made all substantial strategic decisions in representing me, and made all final decisions as to what should and should not be argued in the pleadings.

4. During the course of the litigation, I relied upon Attorney Swartz's advice and directions as to what was in my best interest, and put my faith in Attorney Swartz that he was bringing forth my claims against Sun Valley and its officials based on a good faith basis that my claims were legitimate.

5. Attached as Exhibit B is a true and accurate copy of a letter I served upon Attorney Swartz on February 17, 2015, requesting that Attorney Swartz include various matters into an Objection he was preparing to Sun Valley's Memorandum of Costs filed herein. Attorney Swartz refused to comply with my requests to raise certain issues in the Objection, and instead unilaterally chose to include only matters that he chose in the Objection that was eventually filed with the Court on March 2, 2015, before he was allowed to withdraw as my attorney in this matter. I believe that Attorney Swartz failure to include matters and issues that I sought to have included in the Objection prohibited me from making the complete argument in defense of Sun Valley's request for fees and costs in this matter, and did not fully protect my interest.

The General Investigation And Good Faith Basis Of Claims

6. In March of 2012, I retained Attorney Swartz, to act as legal counsel in this matter on an hourly fee basis. In July of 2013, the fee agreement between myself and Attorney Swartz was modified to include that, in addition to receiving an hourly rate, Attorney Swartz would also receive ten percent (10%) of any recovery I would have obtained in the matter.

7. During the course of retaining Attorney Swartz and describing the circumstances associated with my claims against Sun Valley and its officials pursuant to the IPPEA, Attorney Swartz insisted that I needed an independent attorney, other than Mr. Donoval, to advise me in the matter and to make final decisions in the matter. Exhibit A confirms that Attorney Swartz required that he be in “complete control” of all legal matters related to my claims against Sun Valley.

8. During March of 2012 through June of 2012, Attorney Swartz and his associate Joy Vega (“Attorney Vega”) spent considerable time in reviewing the facts associated with my assertions of harassment and other misconduct by Sun Valley City Council Member Nils Ribi (“Council Member Ribi”). During that period, Attorney Swartz and Attorney Vega also reviewed the facts associated with Sun Valley's investigatory and disciplinary actions against me between November of 2011 and January 19, 2012, including Sun Valley's termination of my employment on January 19, 2012 “without cause”. Attorney Swartz and Attorney Vega also continued to review the conduct of Sun Valley and its officials related to me subsequent to my termination, including the multiple acts and public comments of Sun Valley and its officials which indicated that Sun Valley had not terminated me “without cause”, but instead that I had actually been terminated “with cause”.

9. During March through June of 2012, Attorney Swartz and Attorney Vega spent considerable time researching the IPPEA, Idaho legal precedent related to the IPPEA, and whether the fact pattern I and Mr. Donoval described to Attorney Swartz and Attorney Vega provided for a legitimate claim under the IPPEA.

10. During March through June of 2012. Attorney Swartz and Attorney Vega spent considerable time reviewing the facts associated with my having submitted a Supplemental Release related to the “severance” payments I was entitled to receive upon termination “without cause” pursuant to the City Administrator Employment Agreement I had entered into with Sun Valley in June of 2008 (the “Employment Agreement”).

11. During March through June of 2012, Attorney Swartz and Attorney Vega spent considerable time researching whether the fact pattern I and Mr. Donoval described related to providing the Supplemental Release to Sun Valley provided a legitimate claim that I had not waived any rights I may have had under the IPPEA.

12. During March through June of 2012, Attorney Swartz and Attorney Vega researched issues related to the IPPEA and whether I had waived the right to proceed on any IPPEA claims based on the submission of the Supplemental Release which included the phraseology that I was not waiving any claims I had not intended to waive should I be terminated “without cause” when I signed the Employment Agreement in June of 2008.

13. As part of the documentation I provided to Attorney Swartz and to Attorney Vega related to the “waiver” issue was an Affidavit former Sun Valley Mayor Wayne Willich (“Former Mayor Willich”) filed with the Idaho Human Rights Commission in February of 2012 (attached as Exhibit C herein) that confirmed, in Paragraph 4, that when I and Former Mayor Willich negotiated the Employment Agreement in May of 2008, that he never intended that I would be waiving any “future discrimination, harassment, retaliation or other non-contract claims” if I was ever terminated by Sun Valley “without cause”.

14. Prior to the firing of the Complaint in the matter herein, Attorney Swartz and Attorney Vega counseled me that pursuant to Idaho case law precedent that by submitting the Supplemental Release with the language related to my “intent” included in the Supplemental Release, that I had not waived my right to bring claims against Sun Valley and its officials pursuant to the IPPEA. Attorney Swartz and Attorney Vega also advised me that pursuant to Idaho case law precedent, that there was a public policy against an employee being required to prospectively waive claims under the IPPEA. Attorney Swartz and Attorney Vega advised me that pursuant to Idaho case law precedent that because Sun Valley had not provided me with any additional consideration when they paid me the “severance” under the Employment Agreement, that Sun Valley would not be able to assert that I had waived any claims related to the IPPEA. Attorney Swartz and Attorney Vega also advised me that I had a legitimate right to bring a cause of action against Sun Valley and its officials pursuant to the IPPEA, notwithstanding that I had submitted the Supplemental Release to receive my contractual “severance” payment under the Employment Agreement, and that I had a reasonable likelihood of success related to the waiver issue should it arise during the proceedings herein.

15. On or about June 12, 2012, Attorney Vega provided me with an extensive Memo detailing Attorney Swartz's and Attorney Vega's research on the “waiver” issue and concluding that I had a legitimate right to bring claims against Sun Valley, notwithstanding the submission of the Supplemental Release to Sun Valley in January of 2012. Attached as Exhibit D is a version of the memorandum as it was updated in February of 2014. The revisions from the June 2012 original are in the recitation of facts, adding one or two additional facts, and to re-Shepardize the cited authorities. The legal analysis is substantially the same as was contained in the original memorandum provided to me on or around June 12, 2012.

16. Prior to the filing of the Complaint in the matter herein, Attorney Swartz and Attorney Vega counseled me that pursuant to the IPPEA and Idaho case law precedent associated with the IPPEA, that I had a legitimate right to bring a cause of action against Sun Valley and its officials pursuant to the IPPEA, and that I had a reasonable likelihood of success related to a cause of action against Sun Valley and its officials pursuant to the IPPEA.

17. Prior to filing the Complaint herein, based on the invoices that were submitted to me by Attorney Swartz (Exhibit E), Attorney Swartz and Attorney Vega spent approximately 150 hours, or the equivalent of approximately $22,000 in fees, in their efforts in ensuring that the claims that I was making in the Complaint filed herein were well founded in fact and law.

Ms. Hammer's Pre-Litigation Settlement Offers

18. During March of 2012, on my behalf, Attorney Swartz entered into settlement discussions with Sun Valley, through Attorney Naylor. On my behalf, Attorney Swartz offered to settle all matters between myself and Sun Valley and its officials, without seeking any financial remuneration, if a) Council Member Ribi would remove any mention of me from his website and blog and, b) if Sun Valley would contact the Blaine County Prosecutor and ask that the criminal investigation of me that Sun Valley had referred to the Blaine County Prosecutor be withdrawn. Attached as Exhibit F is an email correspondence between Attorney Swartz and Attorney Naylor, which I was provided, confirming such settlement proposal. Council Member Ribi refused to remove comments about me from his blog and website. In November of 2012, the Blaine County Prosecutor publicly acknowledged that he would not bring any criminal charges because Sun Valley officials had approved all of my conduct, and because the evidence that Attorney Naylor and Sun Valley had provided to the Blaine County Prosecutor was wholly insufficient to support any charges of criminal conduct.

19. On May 2, 2012, on my behalf, Attorney Swartz submitted another proposal for settlement, which would not have required any financial remuneration, other than that Sun Valley would rehire me as the Sun Valley City Administrator upon the findings of the Blaine County Prosecutor that I had committed no criminal conduct (see letter of May 2, 2012 attached as Exhibit G), which the Blaine County Prosecutor eventually did. Sun Valley again rejected my offer of settlement before the filing of the suit herein.

The IPPEA Statute Of Limitation Issues And Coordination With Federal Claims

20. During November and December of 2011, I filed federal discrimination and harassment claims with the Idaho Human Rights Commission (“IHRC”) and the U.S. Equal Employment Opportunity Commission (“EEOC”). Attorney Naylor filed an Appearance and represented Sun Valley and its officials before the IHRC and the EEOC. Through June of 2012, the IHRC continued to investigate the matters, but neither the IHRC nor the EEOC had issued a “right to sue” letter, which is a requirement for bringing any federal discrimination or retaliation claims.

21. I was advised by Attorney Swartz and Attorney Vega, that the statute of limitations related to filing a claim under the IPPEA, required that I file a complaint in the matter by no later than May of 2012. Attorney Swartz and Attorney Vega advised me that because I had not received the “right to sue” letter from either the IHRC or the EEOC, I was not eligible to file any and all federal claims against Sun Valley and its officials with the filing of a complaint in Idaho state court under the IPPEA. Attorney Swartz, on my behalf, and Attorney Naylor, on Sun Valley's behalf, entered into a Tolling Agreement in May of 2012 extending the statute of limitations on the filing of an IPPEA claim to May 30, 2012, and then entered an Extension of Tolling Agreement through June 29, 2012 (see Exhibit J and K). Attorney Swartz advised me that he had requested of Attorney Naylor that Sun Valley continue to extend the statute of limitations on the filing of the IPPEA claim until such time as I received a “right to sue” letter from the IHRC and the EEOC, so that all claims against Sun Valley and its officials could proceed in one law suit. Instead, on June 26, 2012, only three days before the tolling of the statute of limitations on June 29, 2012, Attorney Naylor informed Attorney Swartz that he had no authority to extend the statute of limitations related to the IPPEA claims any further (see email of June 26, 2012 attached as Exhibit L). Attorney Swartz advised me that Attorney Naylor refused to discuss any further extensions or to explain what the change of course was by Sun Valley in refusing to extend the Tolling Agreement.

22. Because Sun Valley rejected my non financial settlement offers, and because Sun Valley and its officials had mined my professional career by making public statements asserting that I had committed criminal acts, I believed that I had no option but to file the IPPEA claims against Sun Valley and its officials (see Exhibit M and Exhibit N)

23. On June 29, 2012, on my behalf, Attorney Swartz signed and filed the Complaint herein. Attorney Vega assisted Attorney Swartz in preparing the Complaint. On December 27, 2012, on my behalf, Attorney Swartz signed and filed the Amended Complaint herein, which removed several Sun Valley City Council members as defendants. Based on the advice of Attorney Swartz and Attorney Vega, I believed that the Complaint and the Amended Complaint complied with any ethics or good faith basis requirements related to Idaho Rules of Civil Procedure (“I.R.C.P.”) Rule 11(a)(1).

24. On February 5, 2013, the IHRC issued its “right to use”' letter (Exhibit O). On April 11, 2013, the EEOC issued its right to sue letter (Exhibit P).

25. On May 3, 2013, on my behalf, Attorney Swartz signed and filed the Complaint And Demand For Jury Trial in the matter of Hammer v. Sun Valley, et al., 1:13-cv-00211-EJL (U.S. Idaho) (the “Federal Case”) seeking fourteen (14) separate federal and state claims against Sun Valley and its various officials. Although not attached hereto because of its size, I certify that the Complaint in the federal Case includes the following counts; I) Gender Discrimination And Harassment under the Idaho Civil Rights Act, Idaho Code Sec. 67-5901, et seq.; II) Retaliation under the Idaho Civil Rights Act, Idaho Code Sec. 67-5901 et seq.; III) Retaliation In Violation Of The First And Fourteenth Amendments Rights To Freedom Of Speech; IV) Retaliation In Violation Of The First And Fourteenth Amendment Rights Of Access To The Courts; V) Retaliatory Investigation In Violation Of The First And Fourteenth Amendments (42 U.S.C. Sec. 1983); VI) Retaliation In Violation Of The First And Fourteenth Amendment Rights To Intimate; VII) Deprivation Of property In Violation Of the Fifth And Fourteenth Amendments (42 U.S.C. Sec. 1983); VIII) Unconstitutional Bias Deprivation Of Property In Violation Of the Fifth And Fourteenth Amendments (42 U.S.C. Sec. 1983); IX) Deprivation Of Due Process In Violation Of The First, Fifth And Fourteenth Amendments (42 U.S.C. Sec. 1983 - Stigma Plus); X) Violation Of Fifth And Fourteenth Amendment Rights (42 U.S.C. Sec 1983 and Sec. 1985 -Civil Conspiracy); XI) Assault; XII) Wrongful Termination; XIII) Breach Of Contract; and, XIV) Negligent Infliction Of Emotional Distress.

26. Although several counts were dismissed by the Court in the Federal Case, two counts of the Federal Case remain active, namely, Count IX) Deprivation Of Due Process In Violation Of The First, Fifth And Fourteenth Amendments (42 U.S.C. Sec. 1983 – Stigma Plus); and, Count XI) Assault.

27. On June 13, 2013 both Sun Valley, by Attorney Naylor, and myself, by Attorney Swartz, jointly sought to consolidate the matter herein into the Federal Case. However, on July 1, 2013, such a request to consolidate this matter into the Federal Case was denied by the Judge in the Federal Case due to statutory jurisdictional reasons (See Exhibit Q).

28. It is my opinion that the only reason that I was required to litigate my claims against Sun Valley and its officials in two separate venues, including that the IPPEA claims be litigated herein rather than in the Federal Case, is due to Sun Valley's refusal to continue to extend the Tolling Agreement beyond June 29, 2012, until such time as I could obtain the “right to sue” letters from the IHRC and the EEOC and include the IPPEA claims in the Federal Case.

Further your affiant sayeth naught.

DATED this 6 day of April, 2015.

SHARON R. HAMMER

SUBSCRIBED AND SWORN to before me this 6th day of April, 2015.

Notary Public for Idaho

My Commission expires 6-7-21

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 6th day of April, 2015, a true and correct copy of the foregoing document was served on the following individual(s) by the method indicated:

Kirtlan G. Naylor [ ] U.S. Mail NAYLOR & HALES, P.C. [⁄] fax: 383-9516 950 W. Bannock Street, Suite 610 [ ] Hand Delivery Boise, ID 83702-6103 [ ] Email: kirt@naylorhales.com

The Honorable Jonathan P. Brody [x] U.S. Mail District Judge [⁄] Fax: (208)436-5272 Minidoka County Courthouse [ ] Overnight Delivery 8th &G Streets [ ] Hand Delivery P.O. Box 368 [ ] Email: Rupert, ID 83350

WYATT JOHNSON

IN THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE

STATE OF IDAHO IN AND FOR THE COUNTY OF BLAINE

SHARON R. HAMMER, Plaintiff,

v.

CITY OF SUN VALLEY; NILS RBI; and DeWAYNE BRISCOE, Defendants.

Case No. CV-2012-479

OPINION AND ORDER ON PLAINTIFF'S MOTION TO DISALLOW COSTS AND ATTORNEY FEES

Before the Court is the Plaintiff's Motion to Disallow Costs and Attorney's Fees. Based on the foregoing reasons, the motion is denied in part and granted in part.

BACKGROUND

Sharon Hammer sued the collective defendants for one cause of action under the Idaho Protection of Public Employees Act: the Whistleblower Act. IDAHO CODE § 6-2101 et seq. The Court granted Defendants' Motion for Summary Judgment on the claim. Individual Defendants had previously prevailed on motions to dismiss. The Judgment dated January 16, 2015, finally resolved all claims. Then on January 30, 2015, the Defendants filed a memorandum of costs and attorney's fees. On March 2, 2015, Plaintiff filed a response motion to disallow the costs and attorney's fees. On April 7, 2015, Plaintiffs also filed a supplemental motion to disallow the costs and attorney's fees.

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ANALYSIS AND DISCUSSION

Costs and reasonable attorney fees may be awarded to the prevailing party in a civil case in accordance with statute or contract IDAHO R. CIV. PRO. 54(e)(1). Some costs and fees are awarded as of right and are certain, while others are discretionary.

A. Defendant is entitled to costs

With few exceptions, costs are awarded as a matter of right to the prevailing party in a civil case. IDAHO R. CIV. PRO. 54(d)(1)(A). See IDAHO CODE § 12-101. The Plaintiff contends that because the costs are attributable to both the state and federal cases between the Plaintiff and Defendants, the Defendants cannot be the prevailing party until there is an outcome in the federal case. See Pl.'s Supplemental Memorandum, pp. 6-9. The determination of the prevailing party is left to the sound discretion of the trial court after considering the final judgment. IDAHO R. CIV. PRO. 54(d)(1)(B).

In this case, the Court granted the Defendant's Motion for Summary Judgment and Denied the Plaintiff's Motion for Reconsideration. Previously, individual Defendants were dismissed. Judgment was entered against the Plaintiff; she prevailed on no claims. All Defendants prevailed completely. The decision in the federal case has no bearing on the prevailing party in the state case. Therefore, the Court finds the Defendants are the prevailing parties.

A complication arises with costs attributable to both the state and federal cases. The Defendant has asserted that the costs requested are only those related to the state case, though some costs may be relevant to the federal case. Def.'s Memorandum, p. 3. The Plaintiff has not asserted that any of the costs claimed by the Defendant are solely attributable to the federal case. See Pl.'s Memorandum, pp. 3-4. Even if the Defendants did not prevail in the federal case, the costs associated with the state case would still be recoverable under the state rules because the Defendants are the prevailing parties in the state case.

Additionally, there is little chance of duplicate recovery. If successful in the federal case, the Defendants' attorney Kirtlan Naylor has submitted a sworn affidavit stating that Defendants would not file to recover the same fees asserted in the state case. Naylor Aff., p. 3. The responsibility to hold Defendants to their sworn statement and to not award duplicate cost recovery for the same items is left to the federal court Therefore, Defendants are entitled to all costs claimed in association with the state case that comply with Idaho Civil Procedure Rule 54.

Rule 54 lists the costs that the prevailing party is entitled to as a matter of right. IDAHO R. CIV. PRO. 54(d)(1)(C). The Defendants assert that the costs claimed are all costs as a matter of right and not discretionary costs. Def.'s Memorandum, pp. 2-3. The plaintiff contends that all costs besides the $ 66.00 filing fee were not reasonably incurred. See Pl.'s Memorandum, pp. 4-5.

The district court has discretion to disallow any costs as a matter of right that are not reasonably incurred. IDAHO R. CIV. PRO. 54(d)(1)(C). A deposition that has not been used in a trial is still reasonable “so long as its taking was reasonable in the preparation for trial in the action.” IDAHO R. CIV. PRO. 54(d)(1)(C). The Plaintiff argues that the Defendants' costs are unreasonable because they would not have been incurred if the Defendants had sought to litigate the preliminary issue of the employment waiver before addressing the underlying substantive issue of the claim. See Pl.'s Memorandum, pp. 4-5. Though the case was determined on a preliminary issue, the depositions, witness interviews, and transcript costs incurred by the Defendants went to the preparation of the underlying issue of the Whistleblower claim. These costs were reasonable to prepare for trial on the substantive issue of the case. The issue on which the Court decided had to be raked as a motion for summary judgment, not merely a motion to dismiss. The issue of release, particularly given Plaintiff's argument, raised issues outside the pleadings. As such, discovery was appropriate. Further, Defendants could not assume victory on summary judgment as an excuse to delay discovery. The Court finds that all costs asserted are within the definition of costs as a matter of right were reasonably incurred and that Defendants are entitled to recover.

Finally, the plaintiff argues that the Defendants' memorandum of costs does not comply with Idaho Civil Rule of Procedure 54(d)(5). The Defendants' memorandum does not include the statement required by Rule 54(d)(5) that “to the best of the party's knowledge and belief the items are correct and that the costs claimed are in compliance with this rule.” However, the district court can consider whether an affidavit substantially complies with Rule 54(d)(5) and satisfies the requirements of the memorandum of costs. Estate of Holland v. Metropolitan Property and Cas. Ins. Co., 153 Idaho 94, 103 (2012). A memorandum of costs requires the aforementioned statement and an itemized list of each cost claimed. IDAHO R. CIV. PRO. 54(d)(5). The affidavit of Kirtlan Naylor, one of the attorneys of record for the Defendants, does not contain title exact language requirement in 54(d)(5). However, the affidavit states, “[t]o the best of my knowledge and belief, these costs are reasonable and necessarily incurred.” Naylor Aff, p. 2. Under the paragraph containing this sentence, the affidavit goes on to list the costs and itemize each claimed expense. Id. at 2-3. Because the language used in the affidavit is similar to the language requirement and the affidavit contains an itemized list, the Defendants' filing substantially complies with the rule. Therefore, the Defendants are not precluded from recovery.

As the prevailing party, the Defendants are entitled to costs in this matter. Additionally, the Court determines that all costs claimed are costs as a matter of right incurred reasonably. In total, the Court awards the Defendants $8, 281.15.

B. Defendant is not entitled to attorney's fees

The Defendants are not entitled to fees under the general attorney's fees provision of the Idaho Code. Idaho Code § 12-117 provides that, in a civil action:

“the court․ shall award the prevailing party reasonable attorney's fees, witness fees, and other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law.”

The important standard to draw out of the statute is the requirement that the nonprevailing party acts “without a reasonable basis in fact or law” before the prevailing party can be awarded fees. City of Osborn v. Randall, 152 Idaho 906, 910 (2012). However, once this standard has been met, the statutory language mandates that the judge award fees to the prevailing party. Id. at 909.

Sun Valley is the prevailing party in this matter. Therefore, if Hammer brought this action unreasonably, Sun Valley would be entitled to fees and costs if § 12-117 applied. The facts and legal arguments of the case are based on the construction of the release agreement and supplemental agreement Hammer signed. The City argues mat the release signed by Hammer in exchange for the discharge of funds was unambiguous and released Sun Valley from all claims as a result of her employment with the City. See Def.'s Response to Motion to Disallow Costs and Fees, pp. 9-10. Because the language was unambiguous, Sun Valley argues there was not a reasonable basis in law or fact for Hammer to file claims regarding her employment with the City after signing the supplemental release. Id.

Idaho Code § 12-117 requires the losing party to have acted frivolously and unreasonably without a foundation in law and fact before fees can be awarded. The legal standard for awarding attorney fess only requires the losing party to refrain from frivolous claims or claims without foundation. Lowery v. Board Of County Com'rs for Ada County, 115 Idaho 64, 69 (1988); Osborn, 153 Idaho at 909. Meaning, attorney's fees will not be awarded based merely on whether the party loses. Lowery, 115 Idaho at 69.

A misperception of law or of one's interest under the law is not, by itself, unreasonable conduct If it were, virtually every case controlled by a question of law would entail an attorney fee award against the losing party under I.C. § 12-121. Rather, the question must be whether the position adopted by the owner was not only incorrect but so plainly fallacious that it could be deemed frivolous, unreasonable or without foundation.

Wing v. Amalgamated Sugar Co., 106 Idaho 905, 911 (1984) (overruled on other grounds).

In this case, Plaintiff argued that the language contained in the release was ambiguous and therefore, parol evidence was necessary to determine the intent of the parties in signing the release and distributing the money. In pursuing this legal argument based on the intent of the parties at signing, Hammer's attorneys obtained additional affidavits detailing that the release was not intended to release Sun Valley from all claims. See Pl.'s Supplemental Memorandum, pp. 2-6. These affidavits demonstrated more than just the defendant's subjective intent. The court ultimately found against this argument, and determined the waiver was unambiguous on its face. See Memorandum Decision on Motions for Summary Judgment (Jan. 1, 2015); See Order on Motion to Reconsider Summary Judgment (June 8, 2015). Though the Court found in favor of the Defendants, Hammer presented a legal argument that was not frivolous or without foundation. Additionally, the issue upon which summary judgment was granted was an affirmative defense. Overall, it is clear from the circumstances of this case mat the action was not brought without some reasonable basis in law and fact. There was thought and effort expended to determine whether to file suit

The Whistleblower Act has its own fee provision and, as such, mat section may control. In addition to the general provision regarding attorney's fees in civil cases, the Defendants are not entitled to attorney's fees under the Whistleblower Act This provision of Idaho Code provides a similar but seemingly higher standard and requires the party requesting attorney's fees to demonstrate that the nonprevailing party acted without any basis in law or feet Van v. Portneuf Medical Cntr., Inc., 156 Idaho 696, 707-08 (2014).¹ See IDAHO CODE § 6-2107. Additionally, where the general provision makes the award of attorney's fees mandatory, attorney's fees under the whistleblower act are entirely discretionary. Van, 156 Idaho at 707. As shown above, the Plaintiff's argument had a reasonable basis in law and fact Furthermore, the Court would choose not to award fees in this case based on an analysis of the factual circumstances and its discretion. Therefore, (he Defendants are not entitled to nor does me Court award attorney's fees.

CONCLUSION

For the reasons set forth above, the Plaintiff's Motion to Disallow Costs and Attorney Fees is DENIED in part, and GRANTED in part. Defendants are awarded $8, 281.15 in costs and are not awarded attorney's fees.

Dated: July 1, 2015

Signed:

Jonathan Brody, District Judge

CERTIFICATE OF SERVICE

I, Crystal Rigby, Deputy Clerk for the County of Blaine, do hereby certify that on the 7 day of July, 2015, I filed the original and caused to be served a true and correct copy of the above and foregoing document: ORDER ON PLAINTIFF'S MOTION TO DISALLOW COSTS AND ATTORNEY FEES to each of the persons as listed below:

Wyatt Johnson Angstman Johnson ___ U.S. Mail, Postage Prepaid 3649 N. Lakeharbor Lane ___ Hand Delivery Boise, ID 83703 ___ Overnight Mail Facsimile: (208) 853-0117 ___ Via Facsimile Email: wyatt@angstman.com x Via Email Naylor & Hales, P.C. ___ U.S. Mail Postage Prepaid Attorneys at Law ___ Hand Delivery 950 W. Bannock Street, Ste. 610 ___ Overnight Mail Boise, ID 83702 ___ Via Facsimile Facsimile: (208) 383-9516 x Via Email Email: kirt @naylorhales.com

DATED 7/1/2015

CLERK OF THE DISTRICT COURT

BY:

Deputy Clerk

From: Eric Swartz

To: jdonoval

Subject: RE: State Case amd Federal Ruling

Date: Tue, Jul 28, 2015 2:05 pm

Thanks for the update, Jim. Curious ruling.

I know you are an attorney, and know that you have your own opinions about things, but it seems to me that there is a strong appeal. The court completely omits your claim in both decisions; looks outside of the release but disregards other evidence about its intent; among other issues. Good luck on appeal.

Also, seems that the assault claim is alive and well for pursuit in state court. I am sure that you, and/or your new attorney, have anticipated and taken action to address this.

When you and Sharon told me what you understood the release to be before the case even started, and I reviewed your and Naylor's exchange on the matter, and seeing how Naylor answered the complaint versus filing a motion to dismiss, it sure seems to me that the court has created an agreement here that was not intended. Perhaps the waiver/release could have been drafted more clearly but, particularly in light of the communications, I trusted your and Sharon's interpretation more than the interpretation advanced by SV long, long, after the commencement of litigation.

Good luck on the state appeal. I sure feel that Brody got it wrong dismissing the individuals and by disregarding your and Sharon's testimony, weighing Sharon's testimony, and disregarding your and Naylor's communications about the release yet looking outside of the release to interpret the same. I don't know what was introduced into the record after my withdrawal, but I know the record was strong when I left it. I wish I was able to stay on to address the statutory interpretation on appeal. That is going to be a big issue for years to come. If they follow the plain words of the statute Sharon's claim (even if the waiver/release issue does not go her way) should be alive and well. I will be watching that issue on appeal. Good luck. Please let me know if I can assist. Thank you.

Regards,

Eric B. Swartz

Jones & Swartz PLLC

1673 West Shoreline Drive, Ste 200

Boise, ID 83702

Ph. (208) 489-8989

Fax (208) 489-8988

www.jonesandswartzlaw.com

From: jdonoval@aol.com [mailto:jdonoval@aol.com]

Sent: Tuesday, July 28, 2015 1:29 PM

To: Eric Swartz

Subject: State Case amd Federal Ruling

Judge Brody denied the fee petition in the state case, but assessed $8,000 in costs against us.

Attached are the rulings today of Judge Lodge. Reconsideration was denied, even in regards to my claim and

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Idaho Supreme Court 7/7/2015 WJ Meeting with Jim to outline appeal issues 0.5 260 130.00 7/20/2015 SL Review Idaho Appellate Rules; Draft motion to stay 1.2 11/12/2015 SL Call with Supreme Court Clerk re appearance 95 114.00 0.5 11/16/2015 WJ Review draft statement of case 120 60.00 11/17/2015 WJ Meeting with Jim to review and analyze appeal brief 1 260 260.00 1.5 11/19/2015 WJ Review draft appeal brief statement of facts and arguments 260 390.00 2.3 11/19/2015 WJ Draft email outlining revisions to appeal brief 260 598.00 0.8 11/23/2015 WJ Review revised appeal brief; email re: mutual mistake 260 208.00 1.4 11/30/2015 WJ Review add'l briefing info; draft email to Jim re: scope 260 364.00 0.3 1/8/2016 WJ Review amended appeal brief 260 78.00 0.3 1/8/2016 WJ Continue reviewing revision to Amended Appeal Brief 260 78.00 0.4 1/8/2016 WJ Email to Client re: assessment of changes to amended brief 260 104.00 0.5 1/11/2016 WJ Review case law re scope of issues raised on appeal; email 260 130.00 0.5 1/11/2016 WJ Call with Jim re: revisions to brief re SV attorney conduct 260 130.00 0.3 1/12/2016 WJ Meeting with client re appeal brief revisions 260 78.00 1 1/12/2016 WJ Review and comment on revised brief sections 260 260.00 1.5 260 390.00 14

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Idaho Supreme Court 3/11/2016 WJ Research reply brief page limit 0.1 3/15/2016 WJ Call with Jim re: reply brief arguments 260 26.00 0.5 3/15/2016 MP Download and review documents received from Court 260 130.00 0.4 3/23/2016 WJ Review Huber v. Lightforce; email client 120 48.00 0.8 3/25/2016 WJ Review draft of reply brief 260 208.00 0.7 260 3/25/2016 WJ Meeting with Jim to review revisions to reply brief 182.00 0.8 3/27/2016 WJ Review and analyze draft appellate reply brief 260 208.00 3 260 3/27/2016 WJ Draft email to Jim discussing argument strategy for reply brief 780.00 0.7 260 3/30/2016 WJ Review revised reply brief 182.00 0.2 3/30/2016 WJ Continue reviewing revised draft reply brief 260 52.00 1.5 260 390.00 8.7

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FOOTNOTES

1.   Sun Valley has filed a memorandum in support of its fees and costs. This petition is limited solely to the Court's decision that fees are warranted. Ms. Hammer will respond separately to the amounts claimed in the memorandum of fees and costs.

1.   To state a prima facie case under the IPPEA all Ms. Hammer was required to plead was that (1) she was an employee engaged in protected activity, (2) that the employer took adverse action against her, and, (3) there is a causal connection between the protected activity and the adverse action, Curlee v. Kootenai City Fire, 148 Idaho 391, 224 P.3d 458 (Id. Sup.Ct. 2008) and Van v. Portneuf Medical Center, 147 Idaho 552, 212 P.3d 982 (Id. Sup.Ct. 2009). There was extensive evidence in the record on appeal that Defendant Ribi had been harassing Ms. Hammer, that she had extensively complained about it, and that Defendant Ribi was the main antagonist in making misconduct allegations against Ms. Hammer and in seeking her termination in retaliation for her having made those complaints. In order to avoid summary judgment in an IPPEA matter, all that Ms. Hammer was required to allege was that she had a reasonable basis to believe that Defendant Ribi's conduct related to Ms. Hammer was harassment and that she was being retaliated against because of her complaints about Defendant Ribi's retaliation, Black v. Idaho State Police, 155 Idaho 570, 314 P.3d 625 (Id. Sup.Ct. 2013). Ms. Hammer certainly did so, and neither the District Court nor this Court found otherwise.

2.   The Idaho statute at issue in Lee v. Sun Valley Co. was Idaho Code § 6-1206 related to negligence of outfitters and tour guides.

3.   As will be further described, in February and March of 2012, Ms. Hammer retained attorney Eric Swartz to represent her in the matter herein before the District Court, replacing Mr. Donoval, who had represented Ms. Hammer up to that time (Donoval Aff, Para. 4-8). Mr. Donoval had no duties related to the matter before the District Court thereafter until the matter was dismissed at summary judgment three years later (Donoval Aff., Para. 8, Para. 14).

4.   At that point, Mr. Donoval filed an Appearance before the District Court, but solely to seek reconsideration of the entry of summary judgment (Donoval Aff., Para. 14). The request for reconsideration of the entry of summary judgment was eventually denied by the District Court (Rec. 220). Up to that point, Ms. Hammer had incurred well over $100,000 in legal fees to Eric Swartz on just this matter before the District Court (Donoval Aff., Para. 13), not including Eric Swartz's fees in the federal matter, based on Eric Swartz's legal advice that she had legitimate claims against Sun Valley and that the waiver affirmative defense was not going to be an issue until trial, if at all (Donoval Aff., Para. 9-10, Exhibits B and C).

5.   The memo of Joy Vega (Donoval Aff, Para. 9, Exhibit B) was originally prepared in June of 2012 just prior to the filing of the matter herein, well after Ms. Hammer had retained Eric Swartz as her counsel replacing Mr. Donoval, and was updated in February of 2014 before Ms. Hammer's federal claims were filed. Prior to the filing of the matter herein in June of 2012, Ms. Hammer had incurred approximately $25,000 in legal fees to Eric Swartz, much of which was in regards to his investigation into whether Ms. Hammer had legitimate claims against Sun Valley and whether the waiver issue was legitimate or not (Donoval Aff, Para. 11).

6.   Ms. Hammer brought several federal retaliation and discrimination claims against Sun Valley and its officials related to her termination in federal court after receiving “right to sue letters” from the Idaho Human Rights Commission and the EEOC well after the 180 day statute of limitations for filing IPPEA claims imposed by the IPPEA.

1.   This Memo focuses on federal law and causes of action, but the analysis transfers to state causes of action too. The Idaho Supreme Court has recognized that constitutional rights may be waived, so long as the prospective plaintiff (often times a criminal defendant) does so knowingly, voluntarily and intelligently. See Smith v. State, 146 Idaho 822, 834-35 (2012): Lubcke v. Boise City/Ada County Hous. Auth., 124 Idaho 450, 460 (1993). A “waiver is a voluntary, intentional relinquishment of a known right or advantage.”' Smith, 146 Idaho at 835 n. 11 (citations omitted). “As a corollary to this definition of waiver, this Court has repeatedly stated that there is a presumption against waiver of fundamental constitutional rights.” Id. (citations omitted).

2.   The court may refer to traditional common-law principles in resolving questions about the principles governing § 1983 actions. Town of Newton v. Rumery, 480 U.S. 386, 392 (1987) (plurality opinion) (examining the public policy implications of a release-dismissal agreement signed in exchange for dismissal of criminal charges).

3.   A public policy argument may also exist regarding the enforceability of a release that does not state what specific claims are being released. “The relevant principle is well established: a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.” Town of Newton v. Rumery, 480 U.S. 386. 392 (1987).

1.   “While Idaho Code section 6-2107 does provide that a court 'may․ order that ․ court costs be awarded to an employer if the court determines that an action brought by an employee under this chapter is without basis in law or in fact,” that provision is not․applicable here since no determination has been made that Van brought his action without basis in law or in fact. Rather, Idaho Code section 12-101, which provides mat '[c]osts shall be awarded by the court in a civil trial or proceeding to fee parties in the manner and in the amount provided for by the Idaho Rules of Civil Procedure,' is applicable.” Van v. Portneuf Medical Center, Inc., 156 Idaho 696, 707 (2014). Because of this determination by the Idaho Supreme Court, it appears as costs as a matter of right for the prevailing party are available.