BOISE – The state of Idaho must pay more than $400,000 in attorney fees and costs to the lawyers who represented the four lesbian couples who successfully sued to overturn the state’s ban on same-sex marriage, a federal court has ruled.
“There is no dispute that Plaintiffs are the prevailing parties and are therefore entitled to an award of reasonable attorney fees and litigation expenses,” wrote U.S. Magistrate Judge Candy Dale, in an order issued late Friday.
The lawyers had sought $467,843; the state’s lawyers had argued for cutting that by more than half to $204,049. But Dale ruled that with only a few small exceptions, the legal team led by Boise attorney Deborah Ferguson was entitled to the amounts it claimed, setting the payment at $401,663.
“In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case,” the judge wrote, quoting a 1986 U.S. Supreme Court case.
The four couples won their case in U.S. District Court last May, when Dale ruled that Idaho’s ban on same-sex marriage violated the U.S. Constitution’s equal protection and due-process guarantees and overturned it. The state appealed to the 9th Circuit U.S. Court of Appeals, but lost there, too. It now has a pending request for the 9th Circuit to reconsider its ruling, and has announced plans to appeal to the U.S. Supreme Court. Same-sex marriage became legal in Idaho in October.
Idaho already has spent nearly $87,000 on private attorneys to help with its court fight to defend the ban, in addition to its in-house counsel costs; that figure was tallied before Gov. Butch Otter’s filing last week to the U.S. Supreme Court asking the high court to wait for Idaho’s case before taking up the gay marriage issue.
The state didn’t dispute that the couples’ lawyers were owed fees and costs, but it argued they should be paid for fewer hours and at lower rates. The judge approved rates ranging from $175 to $400 an hour for the six-member legal team, depending the individual lawyer’s experience level and expertise, and trimmed back the claimed hours from 1,289 to 1,101. That included reductions to subtract out hours spent on opposing a stay at the 9th Circuit; a reduction for hours spent preparing the fee request; and a 10 percent reduction for billing variances.
“Simply put, the case was neither easy nor ordinary,” the judge wrote. “It is therefore not surprising that Plaintiffs employed a team of experienced attorneys to divvy up the many legal tasks.”
She also noted that the attorneys in the case represented the plaintiffs without charge, meaning their only compensation would be any fees ordered paid by the other side after a win. That’s permissible under federal law, she noted.
Lead attorney Ferguson, who heads a small and recently established law firm, has 28 years of civil litigation experience, the judge noted, including work as both a private attorney and as a civil litigator for the U.S. Department of Justice. She also is a former president of the Idaho State Bar.
“Due to the demands of this case, Ferguson attests that she turned away other fee-paying matters and had less time available to develop her practice,” Dale wrote.
The award of fees and costs is only through May 14, the date of the District Court judgment. The plaintiffs noted that they will be submitting additional requests for work completed after that date.
The judge declined to award back interest along with the fees, finding that interest on the payment will begin to accrue as of the date of her ruling on it, which was Friday.
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