UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 14-3779 Kyle Lawson, et al. v. Appellees Robert T. Kelly, in his official capacity as Director of the Jackson County Department of Recorder of Deeds State of Missouri Appellant No: 14-3780 Kyle Lawson, et al. v. Appellants Robert T. Kelly, in his official capacity as Director of the Jackson County Department of Recorder of Deeds and State of Missouri Appellees Appeals from U.S. District Court for the Western District of Missouri - Kansas City (4:14-cv-00622-ODS) MOTION FOR ATTORNEYS FEES ON APPEAL 1 Appellate Case: 14-3779 Page: 1 Date Filed: 07/15/2015 Entry ID: 4295767
Kyle Lawson, Evan Dahlgren, Angela Curtis, and Shannon McGinty brought this action to vindicate their fundamental right to marry, irrespective of the gender of the person they wish to wed. Lawson v. Kelly, 58 F. Supp. 3d 923, 925 (W.D. Mo. 2014). They obtained their sought-after relief a holding on the merits that the Missouri laws preventing them from marrying are unconstitutional. Thus, they are the prevailing party. They hereby move for an award of attorneys fees for this appeal pursuant to 42 U.S.C. 1988 and 8th Cir. R. 47C. See Little Rock Sch. Dist. v. Arkansas, 674 F.3d 990, 995 (8th Cir. 2012) (noting that this Court typically determine[s] fees only for services rendered in this Court and allow[s] the district court to determine the proper compensation for services rendered before it ). The couples commenced this action pursuant to 42 U.S.C. 1983, challenging the constitutionality of Missouri Revised Statutes section 451.022 and Article I, section 33 of the Missouri Constitution. 1 These provisions prevented the couples from securing marriage licenses in Missouri. The district court declared both provisions unconstitutional and awarded the couples their attorneys fees and costs as the prevailing party. 2 Missouri appealed; the couples filed a cross-appeal arguing an alternate ground for the same relief. After briefing was completed, Missouri moved to voluntarily dismiss its appeal. In response, the couples asked that, if Missouri s appeal were dismissed, then their cross-appeal be 1 This case was filed in state court and removed to the district court by the defendants. 2 The district court ruled in favor of the couples on their due process claim and equal protection based on sex. The court ruled in favor of the defendants on the couple s equal protection claim based on sexual orientation, finding that the result was required by Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). 2 Appellate Case: 14-3779 Page: 2 Date Filed: 07/15/2015 Entry ID: 4295767
dismissed because it would be unnecessary to consider the merits of their cross-appeal. On July 1, 2015, this Court entered judgment dismissing both the appeal and the cross-appeal. I. Availability of Attorneys Fees. The same federal law that prohibits deprivation of constitutional rights by state actors also provides for an award of attorneys fees to prevailing plaintiffs. See 42 U.S.C. 1983, 1988. This Court has articulated the important public policy underlying the fee-shifting provisions implicated by successful section 1983 litigation: Congress intended that [i]n computing the fee, counsel for prevailing parties should be paid, as is traditional for attorneys compensated by a fee-paying client, for all time reasonably expended on a matter. S.Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913. The primary purpose of this formulation is to promote diffuse private enforcement of civil rights law by allowing the citizenry to monitor rights violations at their source, while imposing the costs of rights violations on the violators. See Id. A plaintiff bringing a civil rights action does so not for himself alone but also as a private attorney general, vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys fees, few aggrieved parties would be in a position to advance the public interest... Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). In order for such a policy to be effective, Congress felt it appropriate to shift the true full cost of enforcement to the guilty parties to eliminate any obstacle to enforcement. It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases... S.Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913. Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993) (alterations in original). The availability of attorneys fees to successful litigants in civil rights cases serves two significant purposes. First, the availability of fees ensures effective access to the judicial process for litigants with meritorious claims. Hensley v. Eckerhart, 461 U.S. 424, 3 Appellate Case: 14-3779 Page: 3 Date Filed: 07/15/2015 Entry ID: 4295767
429 (1983); see also Casey, 12 F.3d at 805. Second, civil rights litigation serves an important public purpose by protecting and clarifying important constitutional rights. Milton v. City of Des Moines, 47 F.3d 944, 946 (8th Cir. 1995). A prevailing party [is] one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation. Tex. State Teachers Ass n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989); accord Forest Park II v. Hadley, 408 F.3d 1052, 1059 (8th Cir. 2005) ( To be a prevailing party, the plaintiffs must succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. ). Remedies available under section 1983 include monetary, declaratory, or injunctive relief. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978); see also Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) ( [W]e have repeatedly held that an injunction or declaratory judgment, like a damages award, will usually satisfy th[e prevailing party] test. ). II. Attorneys Fees on Appeal A. The Couples Are the Prevailing Party. The couples are the prevailing party in this case. At the conclusion of the appeal, the couples achieved the relief they sought and that was awarded by the district court. The entire community benefits from the couples success in having Missouri s laws preventing samesex couples from marrying declared unconstitutional. By prevailing on the merits, the couples have vindicated the purpose of section 1983 to prevent the violation of civil rights. 4 Appellate Case: 14-3779 Page: 4 Date Filed: 07/15/2015 Entry ID: 4295767
Having secured declaratory and injunctive relief on the merits through judicially sanctioned changes in the relationship between the parties, the couples are the prevailing party. 3 B. Lodestar Amount The general principles governing the award of attorneys fees are well settled. The lodestar figure or product is determined by multiplying the number of hours reasonably expended by the attorneys reasonable hourly rate. Hensley, 461 U.S. at 433. The resulting product is presumed to be the reasonable fee to which counsel is entitled. Pennsylvania v. Del. Valley Citizens Council for Clean Air, 478 U.S. 546, 564 (1986); see also Blum v. Stenson, 465 U.S. 886, 897 (1984); Hendrickson v. Branstad, 934 F.2d 158, 162 (8th Cir. 1991) ( [T]he lodestar award... is presumptively a reasonable fee, and most factors relevant to determining the amount of a fee are subsumed within the lodestar. ). The Supreme Court has stated: We... take as our starting point the self-evident proposition that the reasonable attorney s fee provided by [42 U.S.C. 1988] should compensate for the work product of an attorney. Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 285 (1989) (internal quotations omitted). 3 The couples are no less the prevailing party simply because they did not prevail on their equal protection claim based on sexual orientation and cross-appealed to ensure that issue would be before this Court. First, this Court has recognized that [l]itigants in good faith may raise alternative legal grounds for a desired outcome, and the court s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters. Little Rock Sch. Dist., 674 F.3d at 994-95 (quoting Hensley, 461 U.S. at 435). Second, had Missouri not moved to dismiss its appeal, and had it been necessary to reach the cross-appeal, the couples would have prevailed based on the Supreme Court s abrogation of Bruning in Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, at *19 (U.S. June 26, 2015). 5 Appellate Case: 14-3779 Page: 5 Date Filed: 07/15/2015 Entry ID: 4295767
i. Hourly Rates In setting a reasonable hourly rate for the calculation of attorneys fees, the touchstone is whether the rate is commensurate with those prevailing in the community for comparable services by lawyers of reasonably comparable skill, experience, and reputation. See Moore v. City of Des Moines, 766 F.2d 343, 346 (8th Cir. 1988). Prevailing market rates are the proper basis for a fee award regardless of whether the prevailing party is represented by private or non-profit counsel. Blum, 465 U.S. at 894-95. [T]he prevailing market rate method heretofore used in awarding fees... shall apply as well to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988) (en banc). The background and experience of the couples attorneys on this appeal are set forth in the Affidavits of Anthony E. Rothert (Exhibit 1), Joshua A. Block (Exhibit 2), Gillian R. Wilcox (Exhibit 3), and Andrew J. McNulty (Exhibit 4). Each is skilled and experienced at litigating issues of constitutional law. Their hourly rates are as follows: Attorney Hourly Rate Anthony E. Rothert $365.00 Joshua Block $365.00 Gillian Wilcox $225.00 Andy McNulty $180.00 The rates requested are reasonable, especially considering that this case involved a specialized and complex area of the law. See Republican Party of Minn. v. White, 456 F.3d 912, 920-21 (8th Cir. 2006) (approving hourly rates of $400 and $425 in a section 1983 6 Appellate Case: 14-3779 Page: 6 Date Filed: 07/15/2015 Entry ID: 4295767
appeal where this Court found a First Amendment violation); Holland v. City of Gerald, No. 4:08CV707 HEA, 2013 WL 1688300, at *4 (E.D. Mo. Apr. 18, 2013) (concluding hourly rate of $450 was reasonable ); Wickersham v. City of Columbia, No. 2:05-CV-4061-NKL, 2007 WL 1813194, at *1 (W.D. Mo. June 21, 2007) (awarding $400 per hour for partner and $250 per hour for associate in First Amendment case tried in 2005). Indeed, Mr. Rothert, Ms. Wilcox, and Mr. McNulty have previously been awarded fees at these requested hourly rates. See Survivors Network of Those Abused by Priests, Inc. v. Joyce, No. 4:12CV01501 ERW, 2015 WL 4042143, at *2 (E.D. Mo. July 1, 2015) (finding $365 hourly rate for Mr. Rothert is reasonable in light of the expertise of counsel, quality of representation, and complexity of the litigation ); Kennard v. Kleindienst, No. 2:14-CV-04017-BCW, 2015 WL 4076473, at *3 (W.D. Mo. June 5, 2015) (finding hourly rates of $365 for Mr. Rothert and $180 for Mr. McNulty are reasonable); Lawson v. Kelly, No. 4:14-cv-00622-ODS (W.D. Mo. Dec. 8, 2014) (awarding fees at the hourly rate of $225 for Ms. Wilcox and at Mr. Rothert s previous hourly rate of $350). Mr. Block is based in New York. In this case, however, Mr. Block seeks an award of fees at a reasonable Missouri rate. Ex. 2 at 6. Susan S. Kister, an attorney with 35 years experience who has practiced in Missouri since 1987, including before this Court, is familiar with the market rates for attorneys in Missouri. (Exhibit 5). She opines that the rates requested here are reasonable, fair, and well within the rates customarily charged by Missouri attorneys with similar experience. Id. Finally, the requested rates are in line with the average for attorneys in Missouri; [t]he average 2012 Missouri attorneys billing rate is $339/hour. Comas v. Schaefer, No. 2:10-CV-4085-MJW, 2012 WL 5354589, at *3 (W.D. Mo. Oct. 29, 2012). 7 Appellate Case: 14-3779 Page: 7 Date Filed: 07/15/2015 Entry ID: 4295767
ii. Computation of the Lodestar. The lodestar is the product of the attorneys hourly rates times the number of compensable hours expended on the matter. Hensley, 461 U.S. at 433. 4 A reasonable fee in this case that is consistent with established case law and local rates, is set as follows: Hours Rate Total Anthony E. Rothert 53.3 $365.00 $19,454.50 Joshua Block 13.6 $365.00 $4,964.00 Gillian R. Wilcox 7.4 $225.00 $1,665.00 Andrew J. McNulty 10.0 $180.00 $1,800.00 Total: $27,883.50 The number of hours billed by each attorney is reasonable. The attorneys have exercised billing judgment to reduce the hours and eliminate any billing that was duplicative or unnecessary. Ex. 1 at 4; Ex. 2 at 5; Ex. 3 at 3. Moreover, the attorneys have made other voluntary reductions in their time. Id. Finally, the attorneys have not submitted law clerk or paralegal time for reimbursement. See Jenkins, 491 U.S. at 285 (holding award of fees for paralegal and law clerk time at market rates permissible). III. Conclusion For the foregoing reasons, Lawson, Dahlgren, Curtis, and McGinty respectfully request that this Court award attorneys fees of $27,883.50. 4 The number of hours worked and hours for which compensation is requested for each attorney is included with his or her affidavit, which incorporates an itemization of the hours. 8 Appellate Case: 14-3779 Page: 8 Date Filed: 07/15/2015 Entry ID: 4295767
Respectfully submitted, /s/ Anthony E. Rothert ANTHONY E. ROTHERT American Civil Liberties Union of Missouri Foundation 454 Whittier Street St. Louis, Missouri 63108 Phone 314/652-3114 Fax 314/652-3112 9 Appellate Case: 14-3779 Page: 9 Date Filed: 07/15/2015 Entry ID: 4295767
CERTIFICATE OF SERVICE I hereby certify that on July 15, 2015, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by using the CM/ECF system thereby serving attorneys of record. /s/ Anthony E. Rothert 10 Appellate Case: 14-3779 Page: 10 Date Filed: 07/15/2015 Entry ID: 4295767
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