The state of Arkansas has objected to fee requests by attorneys in the case in which Circuit Judge Chris Piazza invalidated the Arkansas ban on same-sex marriages as “outrageously excessive and unreasonable.”
Cheryl Maples, who filed the case originally, and Jack Wagoner’s firm, which joined the case and performed substantial amounts of the work, have requested about $350,000 in fees and costs, plus have asked for multipliers allowed by law for exceptional work.
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Colin Jorgensen, writing for the attorney general’s office in response, noted that fee requests also have been made in other courts. There was a parallel suit in federal court led by Wagoner and a suit in Judge Wendell Griffen’s court by Maples over rights for couples married during the one-week period in May after Piazza’s ruling but before the state Supreme Court issued a stay pending an appeal.
The state Supreme Court never ruled. It dismissed the appeal after the U.S. Supreme Court ruled that marriage was a right for same-sex couples. The 8th U.S. Circuit Court of Appeals is weighing suggestions for how to end the federal case. Plaintiffs want Judge Kristine Baker’s decision affirmed; the state wants it vacated as moot in light of the Supreme Court ruling.
Said Joregensen’s pleading:
The Plaintiffs’ attorneys are seeking a total fee award of over $350,000 based upon their representation that they worked over 1,400 compensable hours on this case. On top of that, they seek additional fees for the appeal to a different court and they ask for a multiplier to provide them an additional financial windfall. Over 1,400 hours and a fee request of over $350,000 is outrageously excessive and unreasonable on its face. This case lasted less than a year from the filing of the original complaint until a final order was entered by the Court. There was nodiscovery in this case. There were no disputed facts. There was no trial. The case required only pleading preparation and oral argument at two hearings. For the reasons explained in this response, the fee requests submitted by the Plaintiffs’ attorneys should be denied.
In an earlier filing in federal court, Jorgensen accused Maples of padding her bill. Request for fees in the state court were submitted separately by Maples and Wagoner, with Maples seeking about $256,000 and Wagoner about $95,000. Jorgensen used the lack of a unified fee request as evidence to support his argument. Wagoner filed the federal case and Maples joined it in its later stages.
Jorgensen argued that the law doesn’t require an award of attorney fees, but when they are awarded they should be reasonable and not constitute a windfall for lawyers. He said the defendants, such as those who issue marriage licenses, were simply performing their duties according to law. “The Defendants should not be punished by the imposition of excessive attorney’s fees and costs where the Defendants did nothing more than
perform their nondiscretionary ministerial duties.”
Jorgensen said only plaintiffs can make a request for fees, not lawyers, and Wagoner’s filing is essentially on behalf of his law firm because plaintiffs have not been able to make a unified claim for fees. He said Maples should receive no money as a “prevailing party” for her work on the appeal to the Arkansas Supreme Court because there was no prevailing party. He also said it was impossible to discern a reasonable fee because of the absence of sufficient records of the work.
As explained in detail below, the attorney billing records submitted to the Court completely fail to account for hours that are excessive, redundant, unnecessary, unproductive, inefficient, and duplicative. A battalion of attorneys was unnecessarily and needlessly deployed on behalf of the Plaintiffs in this case that involved only research, pleading preparation, and oral argument at two hearings. The hourly billing records submitted by the Plaintiffs’ attorneys are fraught with countless hours spent working on complaints, motions, and claims on which the Plaintiffs are not prevailing parties. The attorney billing records are internally inconsistent, and they are inconsistent with representations made in the pleadings submitted in support of the fee requests. The records submitted by the Plaintiffs’ attorneys provide the Court with no basis to determine a reasonable fee award in this case. The Court is not required to divine a reasonable fee from an incomprehensible gallimaufry of billing records. The Court should deny attorney’s fees entirely.
Jorgensen offered an example. He said Angela Mann, an attorney in the Wagoner firm, had spent two hours reviewing gay marriage cases for a summary judgment hearing April 17, 2014.
And yet, while Ms. Mann was able to review numerous cases in two hours, Ms. Maples claims to have spent 5.5 hours reviewing Bruning, 6.0 hours reviewing Picado, 5.0 hours reviewing Lawrence, 6.75 hours reviewing Perry, and the list goes on and on, all in the months prior to the Windsor decision and prior to the filing of the original complaint in this case. Ms. Maples’ purported dedication of hundreds of billable hours to reading cases priorto the Windsor decision is outrageously excessive and unreasonable. This is only one example of a bevy of excessive and unreasonable time entries throughout Ms. Maples’ time records.
The state said work was duplicative, with five plaintiffs’ lawyers claiming 115 hours of prep time for a half-day hearing in December 2013.
He argued, too, that the lawyer had not met the standard on which a multiplier fee can be applied.
In this case, the Plaintiffs offer no specific evidence that the case presented circumstances so rare and exceptional that without an upward adjustment in the lodestar amount, the Plaintiffs would have been unable to attract competent counsel.
Indeed, the Plaintiffs’ attorneys in this case are so numerous that they have had difficulty reaching agreement on litigation strategy and cannot even offer a single, unified fee request on behalf of their clients. As the Court is well aware, after Windsor, similar litigation exploded nationwide, and plaintiffs nationwide had no difficulty finding counsel more than willing to represent them in these cases.
If the judge does decide a fee is merited, Jorgensen asked for a hearing on the amount and to allow discovery of evidence for the hearing.
Though Jorgensen represented state defendants solely, at least three other lawyers represented county defendants and a number of friends of the court briefs were filed on the appeal. Pleading here.
UPDATE: Wagoner said he agreed with much of Jorgensen’s filing relative to Maple’s fee request. He said he disagreed with it as well and would be filing a response.