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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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