Should States Who Lose Fund The Lawyers Who Fought Them?

States that fought same-sex marriage owe 

millions in legal fees

Many states are now required to pay a ‘reasonable’ 

portion of fees for attorneys who represented same-sex 

couples

September 10, 2015 5:00AM ET

by Steve Friess   @stevefriess

Two months after the U.S. Supreme Court ended the legal debate
over gay marriage by declaring that the constitutionally protected
civil right to marriage must be extended to same-sex couples
nationwide, attorneys general and governors who fought it are
receiving unpleasant souvenirs of failure: Invoices from the
attorneys who beat them.

States that defended same-sex marriage bans — most did,
 to some extent — are now being asked to pay the legal fees
for those litigants under a 40-year-old federal law that says the
 court “in its discretion, may allow the prevailing party …
a reasonable attorney’s fee as part of the costs.”

Or as Michigan attorney Dana Nessel put it: “It’s the price
governments pay for defending bigotry.”

Defeat won’t come cheap — or, in many cases, without further
 legal wrangling.

Michigan is weighing its response to a $1.9 million demand from
 attorneys for April DeBoer and Jayne Rowse, plaintiffs in one
 of the four cases that went to the Supreme Court and was
decided in June. In Kentucky, another state involved in the
 Supreme Court showdown, the bill for services rendered is 
$2.1 million. South Carolina has been ordered to pay $130,000,
 and Florida’s attorney general is fighting a tab of about $700,000.

Several states have struck agreements already. Pennsylvania
settled for $1.5 million, Wisconsin for $1.05 million, Virginia for
 $580,000, Oregon for $132,000, Colorado for $90,000, Utah for

“This is exactly
what Congress
 created this law
 for,” said Stephen
 Rosenthal, a
Miami-based
attorney who fought Florida’s ban. “It’s a recognition that people need
 lawyers to fight the government, which has lots of lawyers, when
 they feel their civil rights are being violated. To encourage lawyers
to take these cases, you need to provide the potential to get paid
 in the end.”

The attorneys general of Michigan, Florida, South Carolina and
 South Dakota did not respond to requests for comment.

Private attorneys who took these cases almost always did so pro
 bono, while national groups such as Lambda Legal and the
 ACLU paid their lawyers. Both can and have pursued
reimbursements after the victories, but the matter is seen as
more significant for private local attorneys who put practices on
hold and turned down other cases. “That is part of what the court
 considered, that while we were doing this, we couldn’t be doing
other work,” said M. Malissa Burnette, the lead attorney in the
South Carolina challenge, who plans to donate her fees to the
gay-rights group South Carolina Equality. “We took a risk that if
we lost, we’d get nothing.”

In some cases, including in Florida and South Dakota, the
government is trying to trim its costs by claiming it dropped its
appeals after state or federal courts ruled definitively elsewhere.
Florida Attorney General Pam Bondi, for instance, filed a motion
 in mid-August that argued the opposing attorneys “are not entitled
 to appellate attorney’s fees.”

That infuriated Rosenthal, who said there wouldn’t have been
appellate costs if the state had given up when the case was
clearly over. “There’s a difference between defending these laws
 and and defending them tooth and nail,” he said. “They defended
 it tooth and nail. And once they lost, they tried to stay that decision
 all the way up to the Supreme Court. Now they don’t want us to be
 paid for defending against that very aggressive effort?”

Taxpayers, many of the litigants’ attorneys say, should be aware of
 how much money was lost by their officials — especially in the latter
 stages of the fight when appellate judges across the nation struck
down same-sex marriage bans. “Some of the tactics the state used
 were unnecessarily dragging out the time spent and the cost of the
 litigation,” said Joshua Newville, a Minneapolis-based lawyer who
handled marriage challenges for same-sex couples in South
 Dakota and North Dakota. “You have government officials who
knew very well where this was headed and nonetheless defended
these discriminatory laws.”

In Tulsa County, Oklahoma, the $298,000 now owed to pro-gay
lawyers is money not spent on “programs and services that need
funding,” said John David Luton, an assistant district attorney in
the Tulsa County District Attorney’s Office. Still, he understands
that such liability is part of the process.

“If they get a result that’s favorable to them, attorney fees are
 typically a part of that,” he said. “They need to be reasonable,
 of course. There are times when fee schedules and work histories
 are more accurate than others. I’m not suggesting that lawyers
 that did the work shouldn’t be paid.”

The $1.9 million Michigan bill is on the higher end in part because
 it was the only case in the final stretch of the gay marriage effort
 that involved a full court trial, with testimony by expert witnesses
 and cross-examinations, Nessel said. The attorneys’ total was
 based on logs of hours worked and expenses incurred throughout
 the case, which spanned nearly four years.

“If you looked at other cases around the country, I think we were
incredibly conservative on our hours and our costs,” she said.
 “In Kentucky, they submitted bills for more than $2 million, and
they had no trial. For them to have billed more than we did —
 I think that says a lot about how conservative we were.”

In fact, Kentucky Gov. Steve Beshear is challenging the invoice
he received. “The key word here is ‘reasonable,’” he said in an
Aug. 24 statement. “We will be contesting those amounts as
 unreasonable. Until these issues are resolved, we will not know
 the overall cost.”

A similar argument was used in Tulsa, where attorneys objected
to the original $368,000 bill by complaining that the litigants
 “used a Howitzer to kill a gnat.” The judge was little moved,
 reducing the reimbursement slightly, to a total of $298,000.

South Carolina also balked at paying, appealing to U.S. District
Judge Richard Gergel that the $135,000 requested was too high.
 He reduced the fees only slightly, to $130,000, writing in his order
 that the state “cannot engage in a no holds [barred] defense and
 then complain the opposing counsel spent too much time responding.”

“The defense [of the state’s marriage ban] mounted was undertaken
with as much skill and passion as was provided in any state, but
the natural and predictable consequence of mounting such
 a vigorous defense was that it required opposing counsel to
expend considerable time addressing the issues raised,” he
wrote in his order.

These costs have prompted some intergovernmental feuds.
Tulsa officials, for instance, have tried and failed to get the state
to help pay.

“It’s unfair for Tulsa County to bear the brunt of the legal costs in
 this case just because Tulsa County was the place in which the
 action arose,” Luton said in an interview. “The other 76 counties in
Oklahoma, by luck of the draw, are not going to assume any of
 that responsibility, nor is the state. Our court clerk swore an
oath to uphold the laws of Oklahoma and was sued because o
f the will of the people of the state and what their definition of
what marriage was. If our clerk had not done that, she could
have been subjected to removal from office for not abiding by
the laws.”

Disputing the bill could enlarge it for South Dakota, a state that
continued to fight same-sex marriage even after the Supreme
 Court ruled in June. Newville said the tab is about $300,000 —
 and the meter is still running.

“They’re doubling down to try to get out of paying the fees,”
 said Newville, who settled with North Dakota for far less
 because that case didn’t make it far in the courts before
the matter was taken up by the Supreme Court. “That’s only
going to add to the final cost.”