Hoyt W. and Barbara D. Young, et al. - Page 38

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          * * * to appeal” does not square with the language of that                  
          court’s November 20, 2001 order holding the Adair appeal in                 
          abeyance pending the resolution of the test case appeal.  In that           
          order, the Court of Appeals stated that, because the Tax Court              
          had consolidated the Adairs’ case with the test cases for                   
          purposes of the evidentiary hearing, “It * * * appears at least             
          arguable that * * * [the Adairs] could appeal as intervenors from           
          a final decision in the test cases.”25  The court added, however,           
          that                                                                        
               if petitioners’ counsel, Joe Alfred Izen, Jr., Esq.,                   
               asserts that this court has jurisdiction in this case                  
               over any non-test Tax Court case other than No. 35608-                 
               86 [i.e., the Adairs’ case], he shall submit to the                    
               court evidence of the following: (1) that the                          
               additional non-test case or cases were at one time                     
               consolidated with the test cases; * * *.                               
          Because none of Izen’s other “prospective intervenors” had ever             
          had any of their cases consolidated with the test cases, Izen               
          would not have been able to establish jurisdiction of the Court             
          of Appeals over their cases.                                                
               Given the unsuccessful nature of Izen’s intervention                   
          efforts, we believe a complete disallowance of the corresponding            
          hours would be well within our discretion.  See Hensley v.                  
          Eckerhart, 461 U.S. at 436-437 (discussed supra Part                        


          25 As discussed above, the Court of Appeals apparently                      
          construed Izen’s “Notice of Appeal of Certain Intervenors” as an            
          attempt to appeal the decisions entered in the test cases rather            
          than a petition for permission to appeal the orders this Court              
          had certified for interlocutory appeal.                                     




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