Fee request rejected in gay-marriage suit

Saturday, June 28, 2014

In a one-sentence order Friday, Pulaski County Circuit Judge Chris Piazza denied a request to award at least $351,808 in fees to the lawyers who prevailed in the lawsuit that challenged the legality of Arkansas' gay-marriage ban. The money would come from the state and county defendants.

"Comes now the court on this 25th day of June 2014, considering all facts, arguments of counsel and applicable laws, does hereby deny the plaintiffs' motion for attorney fees," the ruling states.

But is the decision Piazza's final word?

Piazza's ruling did not specifically state that he had conclusively rejected the request, and the lawyers, Cheryl Maples and Jack Wagoner, indicated that they hope it's not his final decision in a motion they filed almost simultaneously Friday with the judge's ruling.

The attorneys submitted 77 pages of documents Friday listing their expenses and hours worked, documenting the time they put into the case down to the tenth of an hour.

Maples did not return an email seeking comment, but Wagoner said he was hopeful the judge would allow them to present their arguments about compensation at a hearing, even if it's after the appeal is decided.

He said he's seeking reasonable compensation for the months he dedicated his law firm to the litigation.

Wagoner said the attorneys submitted their original request for expenses May 29 to meet the deadline for petitioning the court for those costs as set by the rules of civil procedure.

"My hope is he will provide us the opportunity for a hearing and to provide the documentation," Wagoner said Friday. "I tried to be on the conservative side."

In court filings, the lawyers say they took on the case with no guarantee of compensation and will continue to devote resources to the year-long litigation as it moves into the first stages of the appeal process before the Arkansas Supreme Court.

Piazza ruled in May that the ban is unconstitutional, which led to Arkansas' first in-state same-sex marriage May 10 in Carroll County and a slew of marriages being solemnized in the Pulaski County Courthouse.

Same-sex marriage was legal in Arkansas for a week -- although only a few counties, mostly the defendants in the lawsuit, recognized it -- until the high court, acting on the state's appeal of Piazza's May 9 ruling, suspended it May 16.

Since the U.S. Supreme Court struck down a key part of the federal Defense of Marriage Act last summer, granting federal recognition to same-sex marriage couples, judges in 14 states, including Arkansas, have found the marriage bans to be unconstitutional. Five of those rulings have come down since Piazza invalidated the Arkansas law.

Piazza ruled the prohibition, enacted through statute in 1997 and a state constitutional amendment approved by voters in 2004, violated guarantees of equal protection found in both state and federal constitutions.

Piazza's authority to invalidate a constitutional amendment has been called into question, although the power of judicial review has been recognized as one of the judiciary's fundamental powers for more than 200 years.

That authority emanates from an 1803 U.S. Supreme Court decision, Marbury v. Madison. The case was the first time a court had invalidated a law for conflicting with the Constitution.

Plaintiffs' attorneys had asked for at least $531,908, an amount that exceeded their actual expenses by 50 percent, arguing they were entitled to collect under court rules that allow lawyers who prevail in difficult cases to petition for more than they spent. The lawyers said they also devoted significant resources from their small practices to the case, together turning down more than $350,000 worth of work and together spending more than 1,400 hours to develop their case. They called their request reasonable, saying they took on the case with no guarantee they would ever be paid.

"The fees sought ... are reasonable and in line with what other attorneys customarily would receive in litigation where payment is contingent on the outcome of the case and not certain even then," the lawyers stated in an earlier pleading. "Given the time demands and complexity of the legal issues involved in the case, its monumental nature and its impact on the lives of many thousands of Arkansans and their constitutional rights, a substantial fee award is justified."

The plaintiffs are 21 same-sex couples, including nine who were legally married in other jurisdictions, and a woman seeking to divorce a spouse she married in New York. The defendants are the state departments of Health, and Finance and Administration, along with the county clerks in Pulaski, White, Lonoke, Conway, Saline and Washington counties, where some of the plaintiffs were refused marriage licenses.

The defendants opposed the payment, calling the amount exorbitant and unfair. They argued that plaintiffs had not shown they were entitled to any compensation and that the law did not give them grounds to seek payment.

Even if the lawyers were entitled to compensation, the defendants argued, they had not shown proof of their expenses.

Maples, who initiated the lawsuit last summer, has asked for $256,060 for about 1,024 hours of work, based on her practice of charging $250 per hour.

Wagoner is seeking $95,748 for about 425 hours of work by him and the lawyers he employs. Lawyers at Wagoner's firm charge $175 to $295 per hour.

A section on 06/28/2014