While questions still surround what action incoming Governor Bill Walker will take on Hamby v. Parnell — the suit brought against the state that struck down Alaska’s ban on marriage equality — outgoing Attorney General Michael Geraghty isn’t sitting still. Last week, assistant attorneys general William Milks and Kevin Wakley filed the state’s opposition to the plaintiffs’ motion for attorneys’ fees and expenses.
The plaintiffs’ counsel represented the families in Hamby at no cost, but have asked the court to award them fees and expenses. Under the Federal Rules of Civil Procedure, federal district courts and Court of Appeals judges award costs to the prevailing party. In this case, that means that the state is responsible for paying attorney fees and expenses deemed reasonable for counsel in Hamby. But the Department of Law is taking issue with the quoted sum sought by the attorneys. Allison Mendel, Caitlin Shortell, and Heather Gardner, are asking for a total of $257,938.40. That money would be in addition to the $103,231.78 the state has already spent defending the marriage ban.Attorney Caitlin Shortell at a press conference following oral arguments in October.
Writing for the Department of Law, Wakley argues that the Attorney General bases attorney fees based on three hourly rates respecting the level of experience of the attorneys hired by the state. This ranges from $150 per hour for entry level counsel and $225 per hour for the most experienced.
“The hourly rates sought by Ms. Mendel, Ms. Gardner, and Ms. Shortell are $425 per hour, $395 per hour, and $395 per hour, respectively,” Wakley alleges in last week’s court filing. The state believes that the plaintiffs’ counsel should be held to the same wage standards established by the attorney general in 2010, which would cap hourly pay at $225. That hourly rate was reached by a working group at the Department of Law that took into account “billing rates statewide, including the rates charged by other government agencies, the fees paid by the State to experienced practitioners who provide legal services to the state, and the hourly rates charged by private practitioners.”
Wakley also claims that the plaintiffs’ attorneys committed “significant errors” in how many hours were declared, noting Shortell’s reported 246.3 hours of billable time and claiming that overstated the time entries listed in court documents by 65.8 hours.
However, the attorneys are not bound by the pay standards established by the Department of Law, and other standards of review exist. The Laffey Matrix, one widely followed set of rates made available by the United States Attorney’s Office for the District of Columbia, ranges per hour billing between $205 and $425. In 2005, former attorney general under President Carter, Benjamin Civiletti, was paid over $1,000 per hour (though that was pay established by the firm he worked for, not determined as reasonable compensation by a judge).
The court can make its own determination of reasonable reimbursement, taking into consideration a host of factors, like how much of a workload was required, if there was billing for overhead or superfluous staff that would be considered unreasonable. Thus, the amount awarded to counsel could increase or decrease according to the court’s opinion (though the former is unlikely).
Writing for the state — with a tone quite different than the arguments made in court defending the ban — Wakley said that the staff hours were bloated given the clear “road map” the attorneys had to follow. In effect, it was essentially (all of a sudden) asserted that Hamby was an open and shut case, given the slew of recent rulings in other states:
The plaintiffs’ motion seeks fees for four different attorneys as well as support staff totaling 788 hours… over 300 hours of that time was spent working on drafts of the motion for summary judgment and subsequent reply brief. Significantly, by the time plaintiffs’ work on the motion for summary judgment began in July and August of this year there had been numerous almost identical motions filed throughout the country and granted by numerous district courts, including by two courts within the Ninth Circuit in May of this year.
Shortell says that a response from the plaintiffs’ attorneys is forthcoming.
The incoming Walker administration still has not indicated whether or not it the state will continue to appeal. But it’s likely doubtful they will reverse efforts to minimize the debt incurred by the state via attorney fees.