Attorneys for Arkansas suggested Friday that if a federal judge orders the state or Pulaski County to pay attorneys' fees for two couples who successfully challenged laws against same-sex marriages, the requested amount of nearly $50,000 should be reduced by two-thirds.
That would reflect the portion of the lawsuit's claims on which the plaintiffs prevailed, according to a response filed Friday by the attorney general's office to the Wagoner Law Firm's Aug. 25 request for $49,754.
But the response called the one-third payment a mere "alternative" to its main argument that the Little Rock law firm shouldn't be entitled to recover any litigation expenses from the losing parties. Assistant Attorney General Colin Jorgensen cited a federal rule of civil procedure that requires a motion to recover attorneys' fees from the losing side to "be filed no later than 14 days after the entry of judgment." Jorgensen noted that the judgment was filed Nov. 25, 2014.
That's the date that U.S. District Judge Kristine Baker filed her written ruling declaring Amendment 83 to the state constitution, and three Arkansas statutes, unconstitutional. All banned same-sex marriages in Arkansas.
Baker agreed with the plaintiffs, Rita and Pam Jernigan and Becca and Tara Austin, that the challenged laws impermissibly restricted the plaintiffs' fundamental right to marry and impermissibly discriminated on the basis of gender.
Baker dismissed other claims in the lawsuit, including the claim that the laws deprived the plaintiffs of their liberty interest in having the state recognize same-sex marriages performed in other jurisdictions; that the laws deprived the plaintiffs of autonomy, family privacy and association rights; that they violated a fundamental right to travel; and that they discriminated on the basis of sexual orientation.
Jorgensen also argued that attorney Jack Wagoner of Little Rock, whose firm represented the plaintiffs, cited no legal authority for his suggestion that the Arkansas Public Law Center, a nonprofit organization that covered all the law firm's expenses and minimal attorneys' fees, should be reimbursed for the $30,024.87 it paid the firm. Wagoner is seeking a fee award that will enable his firm to pay back the advocacy organization and an additional $19,729.13 that represents the difference between the hourly rates covered by the organization and the attorneys' standard hourly rates.
The attorney general's office referred to the latter as "a windfall" for the Wagoner firm, saying courts aren't required to award attorneys' fees at all, but "may" allow the prevailing party to collect a "reasonable" attorneys fee.
Jorgensen also argued that the defendants, who included the attorney general, the director of the state Department of Finance and Administration, and the executive director of the Arkansas Teachers Retirement System, shouldn't be punished for simply performing "their ministerial duties to enforce Arkansas marriage laws," noting that they "had no discretion to act otherwise."
He asked that any fee award be reduced further to account for unnecessarily duplicative and uncompensable work. He complained that the bills lack necessary detail to reveal duplicated work by "the battalion of plaintiffs' attorneys at the Wagoner Law Firm."
Jorgensen also argued that the plaintiffs "have improperly submitted two competing fee requests." He cited an "unsupported" Dec. 12 fee request from attorney Cheryl Maples, who has a separate law firm and participated in the case, and a Dec. 23 filing from the Wagoner firm declaring that it didn't join in Maples' request.
Wagoner's request last week noted that the case was in the jurisdiction of the 8th U.S. Circuit Court of Appeals, where the state appealed the ruling, until the 8th circuit affirmed Baker on Aug. 11.
On Thursday, an attorney for the only other defendant in the case, Pulaski County Circuit/County Clerk Larry Crane, also filed an objection to the Wagoner firm's request for a fee award.
The state and county defendants also have objected to separate fee requests filed in Pulaski County Circuit Court by Wagoner and Maples in a similar lawsuit. That suit was filed by Maples, and the Wagoner firm later joined in.
Metro on 09/05/2015