Clerk's lawyer opposes paying same-sex vows case legal bills

An attorney for Larry Crane, the Pulaski County circuit/county clerk, objected Thursday to an effort to make the county and the state pay a $50,000 legal bill for two same-sex couples who successfully challenged the constitutionality of the state's same-sex marriage bans in federal court.

Crane was a defendant in the lawsuit because he was the county official who wasn't allowed under state law to issue marriage licenses to the same-sex couples, both of whom live in Little Rock.

After the couples won their case before U.S. District Judge Kristine Baker in Little Rock on Nov. 25, the state appealed to the 8th U.S. Circuit Court of Appeals in St. Louis. The appeals court affirmed her ruling Aug. 11, citing a June 26 U.S. Supreme Court decision outlawing such bans nationwide.

On Aug. 25, attorney Jack Wagoner filed a motion asking Baker to award his firm $49,754 in attorneys' fees for his work leading to the successful outcome, saying he would use $30,024.87 to reimburse the nonprofit Arkansas Public Law Firm for its contribution to the case.

Wagoner also has sought $95,748 to $141,880 in fees for the work his firm did on a similar lawsuit in Pulaski County Circuit Court. That suit, filed by attorney Cheryl Maples and later joined by Wagoner, also was successful in overturning same-sex marriage bans at the trial level, but an appeal to the Arkansas Supreme Court was never decided. Instead, the appeal was dismissed as moot after the U.S. Supreme Court ruling.

Maples is asking Circuit Judge Chris Piazza to award her firm $345,825 to $686,998 for its work on that case, but Wagoner has complained that Maples' request is unreasonable and excessive.

In a footnote to the response filed Thursday in the federal case, attorney David Fuqua of Little Rock noted the irony of Crane being a defendant in the history-making cases despite the fact that he "was the most active and vocal clerk" in the state in issuing same-sex marriage licenses in the few days after Piazza's ruling in the circuit court case and before the Arkansas Supreme Court stayed the ruling.

Fuqua said Wagoner's fee request should be denied altogether or substantially reduced, arguing that Crane didn't create the laws that the plaintiffs opposed and that he was "no more a necessary party in this case than any other county clerk in the state."

He said the plaintiffs didn't obtain "practical results" in either case because "all relief obtained flowed from the work of other people leading to the Obergefell decision," referring to the U.S. Supreme Court decision on cases originating in other states.

Fuqua also noted that the plaintiffs only prevailed on two of the "numerous claims" in the federal lawsuit -- impairment of the fundamental right to marry and gender discrimination. He said the fee request doesn't distinguish between the successful and unsuccessful claims, and, "They should not be paid for work on unsuccessful claims."

Fuqua also said the descriptions of the work performed was too broad to determine whether the work was necessary and that some of the work appeared to be duplicated.

"If the court deems any fee award against Crane justified, the sum of $2,040 is the total value Crane 'caused' plaintiffs' counsel to add to the case and should represent the maximum possible award against him," he said.

Fuqua also argued:

"The citizens of Pulaski County did not and could not create the laws prohibiting same-sex marriage. Pulaski County citizens should not bear twice the burden of plaintiffs' attorneys' fees, once as Arkansas taxpayers and again as county taxpayers."

Metro on 09/04/2015