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Judge: Arkansas must pay attorney who persuaded justices to toss birth-certificate rules that slighted gays

by John Lynch | February 17, 2018 at 4:30 a.m.

Arkansas must pay $71,214 to the Heber Springs lawyer who got the U.S. Supreme Court to overturn the state's discriminatory birth-certificate practices, Pulaski County Circuit Judge Tim Fox ruled Friday.

The judge found that attorney Cheryl Maples is entitled by federal law to reimbursement for the time and expenses she has devoted to the 2 ½-year long legal battle that saw the nation's highest court summarily overturn the Arkansas Supreme Court on the issue last year.

Although Fox's decision included some criticism of Maples' legal skills, she said Friday that she was pleased with the ruling as part of her overall effort to bring justice to people who have been historically marginalized and continue to face constant prejudice.

"I feel like we really accomplished something big for the LGBT [lesbian, gay, bisexual and transgender] community," she said.

Maples also originated the 2013 state court lawsuit that led to another judge's ruling that struck down the state's gay-marriage ban, a ruling that preceded the federal decision by about 18 months.

The attorney general's office, which represents the state defendants, could appeal the judge's decision on the state's birth-certificate practices. Jessica Ray, a spokesman for Attorney General Leslie Rutledge, said Friday night that state lawyers were still reviewing Fox's ruling.

Fox noted that Rutledge's staff missed the opportunity to limit -- or completely prohibit -- Maples from making any successful claim for recompense by failing to properly invoke the state's sovereign immunity protection. That's despite the state high court's new stricter interpretation of the immunity doctrine as a complete ban on any state-court lawsuit against the state, Fox noted.

"The pleadings have closed in this matter and it is now too late to raise a threshold issue that should have been the defendant's first point in his response," the judge wrote.

"Truly ridiculous" is how Fox described Senior Assistant Attorney General Jennifer Merritt's assertion that Maples did not prevail in the litigation because it completely contradicts the attorney general's own position on the case from two years ago, Fox wrote.

"Such statement is not only incorrect, both factually and legally, it is contrary to the first sentence of defendant's initial responsive pleading," his findings state.

The judge further ridiculed Merritt's arguments about how much work Maples has performed since the litigation returned to his court last October, writing that her position "evidences a complete lack of professionalism, as well as common sense."

Maples had asked for $89,017, based on a $300 hourly rate, but Fox held her to the $250 hourly rate she had originally requested because she did not properly document her qualifications to receive the higher rate. He cut out $17,802 after what appears to be his line-by-line review of her itemized cost petition.

"If the two motions were analyzed on a classic grading scale, they would receive a C- or D+," Fox wrote, describing Maples' payment petitions. "The actions of plaintiffs' counsel indicate that she is totally unfamiliar with the Rules of Civil Procedure and the Rules of Appellate Procedure ... involving the award of attorney's fees and costs."

Her errors were a boon for Arkansas taxpayers because otherwise she could have been entitled to a much more substantial amount, the judge wrote.

"The plaintiffs are now ineligible to request the award of a large amount of attorney's fees and costs that were legitimately incurred while this case was on appeal to the Arkansas Supreme Court and the United States Supreme Court," Fox wrote. "The flip side is that the taxpayers of the State of Arkansas will enjoy a large savings windfall. If plaintiffs' counsel had understood and followed the proper procedures for requesting the award of attorney's fees and costs, the taxpayers might have had to pay a substantially larger amount to plaintiffs."

His findings did not say how much payment Maples might have claimed, but court filings suggest it could have been as much as $220,000.

The U.S. Supreme Court's decision requires that the Arkansas Department of Health, the agency that issues the birth documentation, list married parents, regardless of sex, on the child's birth certificate.

Because the Arkansas statutes describe parenting roles by gender, the laws were ruled to be illegal by the federal justices who cited their June 2015 decision that legalized gay marriage in the United States.

Married parents were automatically listed on the birth certificate, but only the mother's name was listed for the children of same-sex marriages.

Maples sued a month after the national gay-marriage ruling, representing married same-sex couples who said the birth-certificate law violated constitutional guarantees of equal treatment by favoring some parents because of their gender.

Fox sided with Maples in a December 2015 ruling, which was appealed to the Arkansas Supreme Court by the attorney general's office. State justices overturned Fox's findings in a December 2016 ruling that same-sex parents do not have the same right as heterosexual couples to be listed automatically on their children's birth certificates.

In a split decision, the justices ruled that Arkansas' birth-records law is not discriminatory because the statute reflects the department's interest in recording the biological lineage of children, not the sex of the parents.

The U.S. Supreme Court rejected that decision without even asking state attorneys to explain the state court's reasoning.

Metro on 02/17/2018

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