September 28, 2020

Fees Mount in Marriage Cases


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Gay-Marriage-Idaho-Article-201501091504By Zoe Tillman, The National Law Journal

States ordered to pay up as same-sex bans fall.

States that unsuccessfully ­defended same-sex marriage bans in federal courts are on the hook to pay more than $800,000 in legal fees to the challengers, and requests for millions of dollars more are pending.

Federal district judges across the country have issued nearly three dozen rulings since late 2013 declaring state same-sex marriage bans unconstitutional. Attorney fee petitions haven’t been filed yet in the majority of those cases as they go before circuit courts and the U.S. Supreme Court. The fee awards, agreements and requests to date offer an early snapshot of what these landmark civil rights cases could cost taxpayers.

The Supreme Court in October denied petitions to review rulings from three federal appeals courts that declared same-sex marriage bans unconstitutional. The high court on Jan. 9 was set to review a series of new petitions arising from the U.S. Court of Appeals for the Sixth Circuit and a district court in Louisiana, which both upheld state bans on same-sex marriage.

Besides the more than $800,000 in fee awards and agreements on record so far, more than $2.6 million in attorney fee requests are pending, according to a National Law Journal review of federal trial and appellate court dockets. (Several fee awards are on hold pending appeals.)

SSM-fees0112In Idaho, a judge on Dec. 19 awarded plaintiffs’ lawyers in Latta v. Otter more than $400,000 in fees and costs. That sum didn’t include work on appellate litigation. In Wisconsin, plaintiffs’ lawyers in Wolf v. Walker filed a request on Dec. 12 for $1.2 million in fees and costs. Lawyers for the state have until late January to file a response.

Plaintiffs who prevail in federal civil rights cases can collect legal fees from the losing side. Congress set up the fee-shifting rule as an incentive for lawyers to take on time-consuming and expensive civil rights litigation, said Deborah Ferguson, lead counsel for the couples who fought Idaho’s gay marriage ban.

“This is an example of the system working as intended,” said Ferguson, an attorney with the two-lawyer Ferguson Durham firm in Boise.

Tony Rothert, legal director of the American Civil Liberties Union of Missouri, said fee awards were especially important in cases with no money damages at stake. A Missouri federal district judge on Dec. 8 awarded more than $31,000 to the Missouri ACLU office, which successfully argued against the state’s same-sex marriage ban in Lawson v. Kelly. The fee award is on hold pending an appeal.

“When you’re up against the government and the government basically has unlimited resources, there has to be some opportunity to get something if you win,” Rothert said.


Lawyers representing plaintiffs in same-sex marriage cases are a mix of solo practitioners, small-firm attorneys, public interest lawyers and pro bono volunteers from some of the nation’s largest law firms.

Daniel Canon of Clay Daniel Walton Adams in Louisville, said the amount of time his 13-lawyer firm spent on marriage-equality cases in Kentucky and Indiana represented several unpaid weeks of work.

In May, U.S. District Judge John Heyburn II in Kentucky awarded more than $70,000 in fees and costs — including a $10,000 “bonus” — to Canon’s firm and another firm involved in challenges to the state’s same-sex marriage ban. That award didn’t account for all of the work in the district and appeals courts, Canon said. Heyburn stayed his order pending appeal.

“We were able to … shuffle lawyers around so it’s not all we’re doing. But obviously it’s a big-time commitment to do something like that,” Canon said.

Public interest law groups tend to have multiple funding sources, but lawyers said fee awards from litigation were still important. Shannon Minter, legal director of the National Center for Lesbian Rights, said coordinating marriage-equality litigation in multiple states took “a huge amount of our time and energy.”

State and local officials who unsuccessfully defended marriage bans have acknowledged that plaintiffs are entitled to attorney fees, but in a few instances they’ve fought over the amount.

In the Latta case in Idaho, the state attorney general’s office argued the plaintiffs were, at most, entitled to about $260,000 in fees and costs. The state’s lawyers said the plaintiffs’ request for more than $467,000 was excessive and challenged the hourly rates and time entries. In awarding just more than $400,000, U.S. Magistrate Judge Candy Dale agreed to a few cuts, but rejected most of the state’s arguments.

“Simply put, the case was neither easy nor ordinary,” Dale wrote.

The plaintiffs in Bishop v. Oklahoma asked for more than $370,000 in fees and costs for successfully arguing against the state’s same-sex marriage ban before the Tenth Circuit. Lawyers for the defendant, Tulsa County, filed court papers on Jan. 5 accusing the plaintiffs of trying to include fees they weren’t entitled to claim. An award of about $108,000 was appropriate, they said. The judge has yet to rule.

“The inequity of taxing local residents for a county officer’s support, ­obedience and defense of the state constitution is apparent on its face,” the county’s lawyers wrote in their response. “Tulsa County taxpayers should not be assessed one penny more than the law requires.”

In other cases, states reached agreements on fees rather than fight in court. In Oregon, state officials agreed to pay more than $260,000 to resolve attorney fee claims in two cases.

“As prevailing parties, the plaintiffs were entitled to reasonable fees,” Kristina Edmunson, a spokeswoman for the Oregon attorney general’s office, said in an email to the NLJ. “Our office reviewed their submissions and negotiated settlements that reasonably compensated plaintiffs’ counsel.”

After the Fourth Circuit declared Virginia’s marriage ban unconstitutional, officials reached fee agreements with the plaintiffs’ lawyers. Virginia will pay $60,000 to lawyers in Harris v. Rainey, a class action joined with another case, Bostic v. Rainey, on appeal. A spokesman for the attorney general’s office said the terms of an agreement with the Bostic lawyers were still being finalized.

In Harris, Jenner & Block worked with the ACLU of Virginia and Lambda Legal. Attorney fees will go to the nonprofit lawyers. In Bostic, Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner were co-lead counsel. Olson argued in the Fourth Circuit. Representatives from Gibson Dunn and Boies Schiller declined to comment about fees.

IMAGE: POST-BAN: Idaho began issuing marriage licenses to same-sex couples in mid-October. AP / Otto Kitsinger

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