Petition for Writ of Certiorari — Marisa N. Pavan, et al., Petitioners v. Nathaniel Smith

No. ______

In the Supreme Court of the United States

MARISA N. PAVAN, ET AL., PETITIONERS

v.

NATHANIEL SMITH, M.D., MPH

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

PETITION FOR A WRIT OF CERTIORARI

SHANNON MINTER

CHRISTOPHER STOLL

AMY WHELAN

NATIONAL CENTER FOR

LESBIAN RIGHTS

870 Market Street

Suite 370

San Francisco, CA 94102

DOUGLAS HALLWARD-DRIEMEIER

Counsel of Record

ROPES & GRAY LLP

2099 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 508-4600

Douglas.Hallward-Driemeier@

ropesgray.com

CHRISTOPHER THOMAS BROWN

DANIEL FINE

CHERYL MAPLES

PATRICK ROATH

P.O. Box 59

Heber Springs, AR 72543 ROPES & GRAY LLP

Prudential Tower

800 Boylston Street

Boston, MA 02199

QUESTION PRESENTED

In Pavan v. Smith, 137 S. Ct. 2075, 2076 (2017) (per

curiam), this Court summarily reversed a decision of the

Arkansas Supreme Court that had upheld, notwithstanding Obergefell v. Hodges, 135 S. Ct. 2584 (2015), a

state law that denied married same-sex couples equal access to a right afforded opposite-sex couples, namely to

have the birth mother’s spouse listed as the second parent on their child’s birth certificate. The Court remanded in Pavan to the Arkansas Supreme Court “for

further proceedings not inconsistent with this opinion.”

137 S. Ct. at 2079. On remand, the trial court enjoined

respondent from denying same-sex spouses equal rights

to be listed on their children’s birth certificates. Petitioners are indisputably prevailing parties within the

meaning of the fee-shifting provision, 42 U.S.C. 1988(b).

Consistent with Arkansas procedural rules, petitioners

filed a motion in the Arkansas Supreme Court for an

award of appellate attorney’s fees. On January 4, 2018,

the Arkansas Supreme Court issued an order stating,

without further explanation: “Appellees’ motion for appellate attorney’s fees and expenses is denied.”

The question presented is:

Whether, when this Court has summarily reversed

a state supreme court’s denial of a constitutional right

previously recognized by this Court, that state court

may subsequently deny the prevailing party’s application for attorney’s fees under 42 U.S.C. 1988 without

providing any basis for its denial.

(I)

PARTIES TO THE PROCEEDINGS BELOW

AND RULE 29.6 STATEMENT

The following list provides the names of all parties

to the proceedings below:

Petitioners Marisa Pavan, Terrah Pavan, Leigh

D.W. Jacobs, and Jana Jacobs were the appellees in the

Arkansas Supreme Court. Courtney Kassel and Kelly

Scott were also appellees in the Arkansas Supreme

Court but are not petitioners.

Respondent Nathaniel Smith, M.D., MPH, in his official capacity as Director of the Arkansas Department

of Health, was the appellant in the Arkansas Supreme

Court.

(II)

TABLE OF CONTENTS

Opinion below ....................................................................... 1

Jurisdiction ........................................................................... 1

Statutory provision involved ............................................. 2

Statement of the case .......................................................... 2

A. Litigation in the Arkansas state courts ............... 4

B. This Court’s decision in Pavan v. Smith.............. 4

C. Proceedings after this Court’s decision................ 5

Reasons for granting the petition ..................................... 9

I. The decision below reflects a complete disregard

for settled federal law regarding prevailing civil

rights plaintiffs’ entitlement to fees ........................... 9

A. Petitioners were entitled to an award of

appellate attorney’s fees calculated in

accordance with this Court’s well-established

precedent .................................................................. 9

1. Section 1988 and the law interpreting it

apply in state courts such as the

Arkansas Supreme Court .......................... 10

2. Petitioners were the “prevailing party”

in this litigation ........................................... 10

3. Petitioners satisfied the relevant

Arkansas procedural requirements ......... 13

4. While the precise amount of the fee

award needs to be determined, it must

be calculated consistent with this

Court’s precedent........................................ 15

(III)

IV

Table of Contents Continued:

B. The Arkansas Supreme Court’s failure to

explain its denial of fees independently

violates this Court’s settled precedent and

cannot shield that court’s action

from review ............................................................ 16

II. The Arkansas Supreme Court’s order warrants

this Court’s review and correction because it

flouts binding precedent and will discourage

plaintiffs from vindicating constitutional rights

in state courts ............................................................... 19

Conclusion........................................................................... 21

Appendix A — Arkansas Supreme Court Order

(Jan. 4, 2018)....................................... 1a

Appendix B — Statutory provision:

42 U.S.C. 1988 .................................... 3a

Appendix C — Circuit court injunction order

(Dec. 8, 2017) ...................................... 5a

Appendix D — Arkansas Supreme Court order

(Nov. 30, 2017) ................................... 8a

Appendix E — Arkansas Supreme Court motion

(Nov. 21, 2017) ................................. 10a

Appendix F — Arkansas Supreme Court majority

opinion (Oct. 19, 2017) ..................... 13a

Appendix G — Arkansas Supreme Court opinion of

Associate Justice Shawn A. Womack

(Oct. 19, 2017)................................... 16a

Appendix H — Arkansas Supreme Court opinion of

Associate Justice Karen R. Baker

(Oct. 19, 2017)................................... 19a

V

TABLE OF AUTHORITIES

Page(s)

Cases:

Air Transp. Ass’n of Canada v. FAA, 156 F.3d

1329 (D.C. Cir. 1998)............................................. 12

Blanchard v. Bergeron, 489 U.S. 87 (1989) ............. 16

Buffington v. Baltimore Cty., 913 F.2d 113 (4th

Cir. 1990) ................................................................ 12

Davis v. Wechsler, 263 U.S. 22 (1923)...................... 18

Farrar v. Hobby, 506 U.S. 103 (1992) ...................... 10

Harris Cty. Com’rs Court v. Moore, 420 U.S.

77 (1975) ................................................................. 20

Hensley v. Eckerhart, 461 U.S. 424 (1983) ... 9, 12, 16

James v. City of Boise, 136 S. Ct. 685 (2016) .... 10, 21

Juidice v. Vail, 430 U.S. 327 (1977) ......................... 20

Lefemine v. Wideman, 568 U.S. 1 (2012) .. 2, 9, 16, 17

Maine v. Thiboutot, 448 U.S. 1 (1980) ................. 9, 10

Nitro-Lift Techs., LLC v. Howard, 568 U.S. 17

(2012) ...................................................................... 21

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) 2, 3, 4, 19

Pavan v. Smith, 137 S. Ct. 2075 (2017)............ 4, 5, 17

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546 (1986) ...... 15

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542

(2010) ................................................................ 16, 17

Race v. Nat’l Cashflow Sys., Inc., 810 S.W.2d

46 (Ark. Ct. App. 1991), aff’d, 817 S.W.2d

876 (Ark. 1991) .................................................. 6, 13

VI

Cases—Continued:

Page(s)

United States v. Reynolds, 235 U.S. 133 (1914) ..... 20

Constitution, statutes and rules:

U.S. Const. Art. VI, Cl. 2 ............................... 10, 18, 20

42 U.S.C. 1983 ................................................................ 9

42 U.S.C. 1988 ..................................................... passim

42 U.S.C. 1988(b) ............................................... 2, 11, 12

Ark. Code

§ 9-10-201(a).............................................................. 5

§ 20-18-401 ................................................................ 4

Ark. R. Civ. P. 54 ............................................... 8, 14, 15

Ark. R. Civ. P. 54(e) ...................................................... 7

Ark. R. Civ. P. 54(e)(2)...................................... 7, 13, 14

Ark. R. Civ. P. 54(e)(3)...................................... 8, 14, 15

Fed. R. Civ. P. 54(d)(2)(B) .......................................... 14

Fed. R. Civ. P. 54(d)(2)(C) .......................................... 14

Miscellaneous:

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) .......... 19

In the Supreme Court of the United States

No. ______

MARISA N. PAVAN, ET AL., PETITIONERS

v.

NATHANIEL SMITH, M.D., MPH

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

PETITION FOR A WRIT OF CERTIORARI

_________

Petitioners Marisa Pavan, Terrah Pavan, Leigh

D.W. Jacobs, and Jana Jacobs respectfully petition for a

writ of certiorari to review the judgment of the Arkansas Supreme Court.

OPINION BELOW

The ruling of the Arkansas Supreme Court at issue

(App., infra, 1a-2a) is a summary order with no associated opinion or stated reasoning.

JURISDICTION

The judgment of the Arkansas Supreme Court was

entered on January 4, 2018. This Court has jurisdiction

pursuant to 28 U.S.C. 1257.

(1)

2

STATUTORY PROVISION INVOLVED

The Civil Rights Attorney’s Fees Award Act of

1976, codified at 42 U.S.C. 1988, is reproduced at App.,

infra, 3a-4a.

STATEMENT OF THE CASE

Petitioners are two married same-sex couples who

previously sought and won from this Court vindication

of their right to have the non-birth parent’s name listed

on their child’s birth certificate to the same extent that

married opposite-sex couples enjoy that right under

State law, as required by this Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In so ruling, this

Court summarily reversed a decision of the Arkansas

Supreme Court denying petitioners that right. On remand, the Arkansas Supreme Court issued a mandate to

the State trial court, which entered an injunction in petitioners’ favor.

Having prevailed on their claims, petitioners sought

an award of appellate attorney’s fees, 1 to which they

were entitled under the Civil Rights Attorney’s Fees

Award Act of 1976, 42 U.S.C. 1988 and this Court’s rulings interpreting that statute. These provide generally

that prevailing plaintiffs are entitled to an award of attorney’s fees as a matter of course. See 42 U.S.C.

1988(b); Lefemine v. Wideman, 568 U.S. 1, 5 (2012).

Moreover, a court must explain any departure from that

presumption in favor of a fee award. Notwithstanding

those well-established federal mandates, the Arkansas

1

Petitioners also sought in the trial court fees for the work performed in that court. Those fees have been awarded and are not at

issue in this petition.

3

Supreme Court denied petitioners’ request for an award

of appellate attorney’s fees in its entirety, without

providing any explanation of its action.

The Arkansas Supreme Court’s denial of fees without explanation shows a complete disregard for the requirements of Section 1988 and this Court’s cases construing that statute. The Arkansas court’s refusal to follow and apply this binding federal law reflects its continuing intransigence in the face of this Court’s ruling in

Obergefell, which has already merited one summary reversal from this Court.

This is a case in which this Court’s customary reluctance to engage in “error correction” is overcome by the

need to reaffirm the basic principle that, in our federal

structure, this Court is the ultimate arbiter of federal

constitutional and statutory law. Having already resisted a clear requirement of the Constitution (as established by Obergefell) in its initial decision in this case, the

Arkansas Supreme Court now seeks to deny petitioners

a federal statutory right—an award of attorney’s fees—

that flows directly from their having prevailed on their

constitutional claims. State courts cannot be left free to

ignore civil rights plaintiffs’ federal right to recover fees.

This is all the more so where the denial of any fee award

is done without explanation, and in relation to a question

of constitutional rights on which the state court has already shown itself to be resistant to this Court’s rulings.

The Court should grant the petition for a writ of certiorari, vacate the order of the Arkansas Supreme

Court, and remand with directions to make an award of

fees consistent with this Court’s Section 1988 precedent.

4

A. Litigation In The Arkansas State Courts

This Court is familiar with the underlying litigation,

which is discussed in the Court’s decision in Pavan v.

Smith, 137 S. Ct. 2075 (2017) (per curiam). In short, petitioners are two married same-sex couples who resided

in Arkansas and who conceived their children through

anonymous sperm donors. Id. at 2077. Respondent, the

director of the Arkansas Department of Health, refused

to place the name of each birth mother’s female spouse

on her child’s birth certificate, even though Arkansas

law requires that a mother’s male spouse be placed on

the birth certificate under similar circumstances. Ibid;

see also Ark. Code § 20-18-401 (the Birth Certificate

Law). Petitioners thereafter sought a writ of certiorari

from this court.

B. This Court’s Decision In Pavan v. Smith

On June 26, 2017, this Court summarily reversed the

Arkansas Supreme Court in a per curiam order. The

Court held that the Birth Certificate Law, as construed

by the Arkansas Supreme Court, “infringes Obergefell’s

commitment to provide same sex couples ‘the constellation of benefits that the States have linked to marriage.’”

Pavan, 137 S. Ct. at 2077 (quoting 135 S. Ct. at 2601).

The Court rejected the State’s argument that the Birth

Certificate Law is “simply a device for recording biological parentage,” noting that Arkansas law requires the

placement of a birth mother’s husband on the birth certificate of a child conceived through anonymous sperm

donation. Id. at 2078. Thus, the Court held, Arkansas

had “chosen to make its birth certificates more than a

mere marker of biological relationships,” and so the

State “may not, consistent with Obergefell, deny married

same-sex couples that recognition.” Id. at 2078-2079.

5

In obtaining summary reversal, petitioners attained

relief both for themselves and all other married samesex parents in Arkansas who were being denied equal

access to the rights of married couples with respect to

their children’s birth certificates. The Court remanded

to the Arkansas Supreme Court “for further proceedings not inconsistent with this opinion.” Pavan, 137 S.

Ct. at 2079.

C. Proceedings After This Court’s Decision

On remand, before the Arkansas Supreme Court,

respondent continued to advance arguments that he had

made unsuccessfully to this Court in opposing certiorari.

Specifically, respondent contended that petitioners’

remedy lay under Arkansas’s assisted reproduction statute, Ark. Code § 9-10-201(a) (the Assisted Reproduction

Law), rather than the Birth Certificate Law.2 Respondent urged the Arkansas Supreme Court to limit petitioners’ remedy to relief under the Assisted Reproduction

Law and to decline to give relief under the Birth Certificate Law, as required by this Court’s order. See Appellant’s Supp. Br. 2 (Aug. 14, 2017) (No. CV-15-988).

2

In his opposition to the petition for certiorari, respondent had

argued that petitioners should have brought their claims under Arkansas’s Assisted Reproduction Law instead of under the Birth

Certificate Law. Resp. Br. at 22, Pavan v. Smith, 137 S. Ct. 2075

(2017) (No. 16-992). As petitioners explained in reply, and this

Court’s summary order implicitly recognized, the Assisted Reproduction Law was not the operative statute, because it does not mention birth certificates nor directs the Arkansas Department of

Health to issue them. Reply Br. at 6-8, Pavan v. Smith, 137 S. Ct.

2075 (2017) (No. 16-992). Thus, as this Court held, petitioners were

entitled to the relief they sought under the Birth Certificate Law.

Pavan, 137 S. Ct. at 2078-2079.

6

On October 19, 2017, the Arkansas Supreme Court

rejected respondent’s position, and issued an order “remand[ing] for entry of a final judgment consistent with

the mandate of the Supreme Court of the United

States.” App., infra, 15a. In its order, the state court

acknowledged that this Court had “granted [petitioners’] petition for a writ of certiorari [and] reversed the

judgment of” the Arkansas Supreme Court, id. at 13a,

and rejected respondent’s argument that “a gender-neutral reading of [the Assisted Reproduction Law] would

adequately address the constitutional infirmity found,”

id. at 14a.

On November 7, 2017, the Arkansas Supreme Court

issued its mandate, returning this case to the trial court.

Pursuant to that mandate, on December 8, 2017, the Circuit Court of Pulaski County, Arkansas permanently enjoined respondent and his successors from issuing birth

certificates except pursuant to a policy that “issue[s]

birth certificates to all same sex spouses and opposite

sex spouses in accordance with the mandate from the

United States Supreme Court and the Arkansas Supreme Court.” App., infra, 6a.

As the “prevailing party” in this litigation, petitioners sought recovery of their attorneys’ fees pursuant to

Section 1988. Petitioners followed the relevant Arkansas procedural requirements with respect to the petition

for appellate fees at issue here.

First, petitioners appropriately filed their application in the Supreme Court of Arkansas. In Arkansas,

applications for appellate attorneys’ fees must be filed in

the appellate court in the first instance. See Race v.

Nat’l Cashflow Sys., Inc., 810 S.W.2d 46, 47-48 (Ark. Ct.

7

App. 1991), aff’d, 817 S.W.2d 876 (Ark. 1991).3 Petitioners did so on November 21, 2017. 4 App., infra, 10a-12a.

Second, petitioners timely filed their application for

appellate attorney’s fees. The relevant Arkansas rule

requires that a motion for attorney’s fees be filed no later

than fourteen days after the entry of judgment. See

Ark. R. Civ. P. 54(e). Petitioners filed their application

in the Arkansas Supreme Court on November 21, 2017,

fourteen days after that court’s mandate issued. Petitioners separately moved to transfer consideration of

the motion for appellate fees to the circuit court, which

the State Supreme Court denied. See Appellees’ Mot. to

Transfer (No. CV-15-988); App., infra, 2a.

Finally, petitioners provided a sufficient description

of their claim in the application. Like the Federal Rules

of Civil Procedure, Arkansas rules require that an initial

motion for fees state only “the amount” or “a fair estimate of the amount [of fees] sought,” Ark. R. Civ. P.

54(e)(2), to be supplemented later with documentation

3

Noting this requirement, respondent had previously argued

that the trial court lacked jurisdiction to make an award for appellate attorneys’ fees. See Defendant’s Response to Mot. for Fees 8

(Jan. 5, 2016) (No. 60CV 15-3153) (arguing in original attorney’s fees

response in circuit court that “any fees and costs awarded to a prevailing part on appeal must come from the appellate court”).

4

To make absolutely certain that they met all procedural requirements, on November 2, 2017, petitioners filed a motion requesting that the Arkansas Supreme Court clarify in its mandate,

which had not yet issued, where the application for appellate fees

should be filed. See Appellees’ Mot. for Clarification (No. CV-15988). The Arkansas Supreme Court issued the mandate on November 7, 2017 without any reference to fees and on November 30, 2017,

also denied without explanation petitioners’ motion to clarify. See

Mandate to Clerk (No. CV-15-988); App, infra, 8a-9a.

8

supporting the request, see Ark. R. Civ. P. 54, addition

to reporter’s notes, 1997 amendment (noting that the

Rule “does not require that the motion for attorneys’

fees be supported at the time of filing with the evidentiary material bearing on the fees”). Consistent with

that rule, petitioners provided an approximation of the

attorney’s fees to which they were entitled: $220,000.

App., infra, 11a. Additionally, pursuant to Arkansas

procedure, petitioners requested an opportunity to file

briefing substantiating their fee application, to which

they were entitled under Arkansas Rule of Civil Procedure 54(e)(3). Ibid.

Respondent did not timely oppose petitioners’ motions, and instead sought leave to file a belated opposition. See Appellant’s Mot. for Leave to File Belated Response (Dec. 6, 2017) (No. CV-15-988).

On January 4, 2018, the Arkansas Supreme Court

denied petitioners’ motions without any explanation or

reasoning whatsoever, and without requesting the submission of any substantive briefing regarding the appropriate dollar amount for fees, as contemplated in the

commentary to the relevant rule. App., infra, 1a-2a.

The court also denied respondent’s motion to file a belated opposition, leaving petitioners’ motions unopposed. Ibid. The full extent of the court’s statement regarding petitioners’ fee application is in a docket entry,

as follows:

Appellees’ protective motion for appellate attorney’s fees and expenses is DENIED. Wynne, J.

would grant in part and set a schedule for briefing

and submission of evidence. Kemp, C.J., would note.

Appellees’ motion to transfer motion for attorney’s

fees and expenses is DENIED. Appellant’s motion

9

for leave to file a belated response to appellees’ fee

motions is DENIED.

Ibid.

This petition followed.

REASONS FOR GRANTING THE PETITION

I.

THE DECISION BELOW REFLECTS A COMPLETE

DISREGARD FOR SETTLED FEDERAL LAW REGARDING P REVAILING C IVIL R IGHTS P LAINTIFFS’

ENTITLEMENT TO FEES

A. Petitioners Were Entitled To An Award Of

Appellate Attorney’s Fees Calculated In Accordance With This Court’s Well-Established

Precedent

Congress enacted the Civil Rights Attorney’s Fees

Award Act of 1976, codified at 42 U.S.C. 1988, to “ensure

‘effective access to the judicial process’ for persons with

civil rights grievances.” Hensley v. Eckerhart, 461 U.S.

424, 429 (1983) (quoting H.R. Rep. No. 1558, 94th Cong.,

2nd Sess. at 1 (1976)). Section 1988, which applies

equally in State courts, is an “integral part of the remedies necessary to obtain” compliance with federal civil

rights laws. Maine v. Thiboutot, 448 U.S. 1, 11 (1980)

(quoting S. Rep. No. 1011, 94th Cong., 2d Sess. at 5

(1976)). This Court has repeatedly held that attorney’s

fees in Section 1983 cases should be awarded to a prevailing plaintiff absent special circumstances. See

Lefemine v. Wideman, 568 U.S. 1, 5 (2012) (quoting

Hensley, 461 U.S. at 429) (Plaintiffs who are prevailing

parties “should ordinarily recover an attorney’s fee unless special circumstances would render such an award

unjust.”). Here petitioners were a “prevailing party”

10

within the meaning of Section 1988 and have met all procedural requirements with respect to their application

for fees.

1.

Section 1988 and the Law Interpreting it

Apply in State Courts Such As the Arkansas Supreme Court

This Court has recognized that Congress, in passing

Section 1988, intended the statute to authorize “the

award of a reasonable attorney’s fee in actions brought

in State or Federal courts.” Thiboutot, 448 U.S. at 11

(emphasis added) (quoting 122 Cong. Rec. 35122 (1976)).

Accordingly, State courts are bound by Section 1988’s

mandates and this Court’s interpretation of them. Prevailing parties in civil rights actions are entitled to fees

in State court to the same extent they would be in federal court. See James v. City of Boise, 136 S. Ct. 685, 686

(2016) (per curiam) (“The Idaho Supreme Court, like any

other state or federal court, is bound by this Court’s interpretation of [Section 1988].”); Thiboutot, 448 U.S. at

10 (finding “no merit to [the] argument” that Section

1988 does not apply in state courts). Therefore, the Arkansas Supreme Court is bound by Section 1988 and to

apply it in a manner consistent with this Court’s authoritative rulings. See U.S. Const. Art. VI, Cl. 2.

2.

Petitioners Were the “Prevailing Party”

in This Litigation

A plaintiff “prevails” within the meaning of Section

1988 “when actual relief on the merits of his claim materially alters the legal relationship between the parties by

modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S.

103, 111-112 (1992). Here, as a direct result of this

Court’s ruling, petitioners obtained from the State trial

11

court on December 8, 2017, an injunction preventing respondent and his successors from issuing any birth certificates except under a policy that “issue[s] birth certificates to all same sex spouses and opposite sex spouses

in accordance with the mandate from the United States

Supreme Court and the Arkansas Supreme Court.”

App., infra, 5a-7a. This injunction altered the legal relationship between petitioners and respondent in a way

that benefits petitioners and those similarly situated.

On the same day the trial court issued its injunction, Arkansas Governor Asa Hutchinson directed the Arkansas

Department of Health in a letter to “list the spouse of a

woman who gives birth, regardless of the gender of the

spouse, on their children’s birth certificates.” Letter

from Asa Hutchinson, Governor, Arkansas, to Nathaniel

Smith, M.D., MPH, Director, Arkansas Dept. of Health

(Dec. 8, 2017). Consequently, petitioners are the “prevailing party” under Section 1988(b). Indeed, respondent has conceded in connection with recovery of petitioners’ attorney’s fees incurred at the trial court level that

petitioners are prevailing parties. See Defendant’s Response to Mot. for Fees 2 (Jan. 5, 2016) (No. 60CV-153153).

Respondent argued in its belated opposition to petitioners’ fee application in the Arkansas Supreme Court

that petitioners were not entitled to appellate attorney’s

fees because they were not a “prevailing party” under

Section 1988(b) at all stages of the litigation, including in

the initial litigation before the Arkansas Supreme Court

that erroneously declined to recognize petitioners’ constitutional rights. See Appellant’s Mot. for Leave to File

Belated Response, Ex. 1 (Dec. 6, 2017) (No. CV-15-988).

Whatever temporary successes respondent may have

12

had at different stages in the litigation, it is beyond legitimate dispute that petitioners are fully prevailing

parties for purposes of Section 1988.

The State court’s initial denial of petitioners’ constitutional claims at an earlier stage in this litigation has no

bearing on the fact that petitioners were ultimately prevailing parties, and are now entitled to recover fees with

respect to each of the steps that were necessary to vindicate that right. In the context of attorney’s fees, “[t]he

result is what matters.” Hensley, 461 U.S. at 435.

“Where a plaintiff has obtained excellent results,” this

Court has held, plaintiff’s “attorney should recover a

fully compensatory fee [that] encompass[es] all hours

reasonably expended on the litigation.” Ibid. It is beyond legitimate dispute that work spent before an intervening court to defend a lower court victory is by definition “reasonably expended.” Consistent with this

Court’s precedent, courts uniformly recognize that a

party who prevails in the litigation as a whole, but had

been unsuccessful during stages of that litigation, is entitled to fees for the entire case, including for the unsuccessful stages. See, e.g., Air Transp. Ass’n of Canada v.

FAA, 156 F.3d 1329, 1335 (D.C. Cir. 1998) (a plaintiff

“who is unsuccessful at a stage of litigation that was a

necessary step to her ultimate victory is entitled to attorney’s fees even for the unsuccessful stage” (quoting

Cabrales v. Cty. of Los Angeles, 935 F.2d 1050, 1053 (9th

Cir. 1991))); Buffington v. Baltimore Cty., 913 F.2d 113,

128 n.12 (4th Cir. 1990) (stating that on remand the district court “need not revisit the argument * * * that fees

and expenses attributable to the first trial, which ended

in a mistrial, should be excluded on the ground that the

plaintiffs did not prevail in that proceeding”).

13

Thus there can be no doubt that petitioners are a

“prevailing party” within the meaning of Section 1988.

3.

Petitioners Satisfied the Relevant Arkansas Procedural Requirements

In making their application for appellate attorney’s

fees, petitioners also followed applicable Arkansas procedural law and rules as to the timing, venue, and content of their fee request.

As to timing, Arkansas Rule of Civil Procedure

54(e)(2) provides that a motion for attorney’s fees must

be filed no later than fourteen days after the entry of

judgment. Petitioners complied with this rule by filing

their motion for attorney’s fees in the Arkansas Supreme Court on November 21, 2017, fourteen days after

that court’s Mandate. App., infra, 10a-12a.

As to venue, under established Arkansas precedent,

motions for appellate attorney’s fees must be filed in the

first instance in the appeals court, not the trial court.

See Race v. Nat’l Cashflow Sys., Inc., 810 S.W.2d 46, 47,

48 (Ark. Ct. App. 1991), aff’d, 817 S.W.2d 876 (Ark. 1991)

(holding that the appeals court “has the authority” to

“award attorney fees to the prevailing party for services

of his attorney on appeal,” and that the “trial court [is]

without authority to award” those fees absent the appeals court’s order). Consistent with this precedent, petitioners filed their appellate fees motion in the Arkansas Supreme Court—not the circuit court. Out of an

abundance of caution, petitioners also filed a motion for

clarification as to where they should file for appellate attorney’s fees. See Appellees’ Mot. for Clarification (Nov.

2, 2017) (No. CV-15-988). The Arkansas Supreme Court

summarily denied that motion. App., infra, 8a-9a. Peti-

14

tioners additionally filed a motion in the alternative asking the Arkansas Supreme Court to transfer the motion

for fees to the circuit court. See Appellees’ Mot. to

Transfer (Nov. 21, 2017) (No. CV-15-988). The Arkansas

Supreme Court summarily denied that motion as well.

App., infra, 1a-2a.

As to the substantive content of the application, the

Arkansas Rules of Civil Procedure require only that a

party filing an attorney’s fees motion state in that motion “the amount” or “a fair estimate of the amount

sought.” Ark. R. Civ. P. 54(e)(2). As the commentary to

the Rule notes, the Rule “does not require that the motion for attorneys’ fees be supported at the time of filing

with the evidentiary material bearing on the fees.” Ark.

R. Civ. P. 54, addition to reporter’s notes, 1997 amendment. Instead, all that is required is “the filing of a motion sufficient to alert the adversary and the court that

there is a claim for fees and the amount of such fees or a

fair estimate.” Ibid. A party propounding or opposing a

fees motion may request “an opportunity for adversary

submissions,” which the court “shall afford” at the “request of a party.” Ark. R. Civ. P. 54(e)(3); see also Ark.

R. Civ. P. 54, addition to reporter’s notes, 1997 amendment (Rule 54(e)(3) “assures the parties of an opportunity to make an appropriate presentation with respect

to issues involving the evaluation of legal services.”).5

5

This procedure is consistent with federal practice. See Fed.

R. Civ. P. 54(d)(2)(B) (requiring that a fee motion disclose only “the

amount sought or provide a fair estimate of it”), and (2)(C) (requiring a court to “give an opportunity for adversary submissions” on a

party’s request).

15

Petitioners complied with this requirement by

providing a reasonable estimate of their appellate attorney’s fees, in the amount of $220,000, and requested that

the court set a briefing schedule for petitioners to provide evidence substantiating their fee request, as they

were entitled to receive under Rule 54(e)(3). App., infra,

11a. The Arkansas Supreme Court, however, did not

seek further briefing or request the provision of any additional information regarding petitioners’ fee request,

as Rule 54 and its commentary provide. Id. at 1a-2a.

Recognizing this variation from Arkansas procedure,

Justice Wynne dissented from the court’s summary disposition, writing that he would have “schedule[d petitioners’ motion] for briefing and submission of evidence.” Id. at 2a.

4.

While the Precise Amount of the Fee

Award Needs to be Determined, It Must

be Calculated Consistent with This

Court’s Precedent

Because petitioners were prevailing parties and

complied with all relevant procedural requirements in

seeking attorney’s fees, petitioners were entitled to a fee

award as a matter of law. Under this Court’s precedent,

once a civil rights plaintiff has prevailed and made a fee

request, the only remaining question is the amount of

the award. Moreover, this Court has established in unambiguous terms the straightforward manner in which

that award is to be calculated. Courts are to use the

“lodestar” method of calculating attorney’s fees: as a

“starting point,” the court should calculate “the number

of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S.

546, 564 (1986) (quoting Henlsey, 461 U.S. at 433)). Only

16

then may courts “adjust this lodestar calculation by

other factors.” Blanchard v. Bergeron, 489 U.S. 87, 94

(1989). “[T]he lodestar method yields a fee that is presumptively sufficient” to achieve the statute’s objective

of “enforce[ing] the covered civil rights statutes.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010).

In other words, even as to the calculation of the fee

award, the state court’s consideration is tightly circumscribed by federal law. The Arkansas Supreme Court

had no discretion simply to deny petitioners’ fee application outright.

B. The Arkansas Supreme Court’s Failure To

Explain Its Denial Of Fees Independently Violates This Court’s Settled Precedent And

Cannot Shield That Court’s Action From Review

To ensure that courts award Section 1988 fees in accordance with the mandates of federal law, courts assessing such fees must “provide a concise but clear explanation of [their] reasons for the fee award.” Hensley,

461 U.S. at 437. In particular, while the presumption in

favor of an award of fees to prevailing plaintiffs can be

overcome only in certain limited “special circumstances,” this Court has made clear that a court that denies fees due to “special circumstances” must provide a

reasoned explanation for that decision. Lefemine, 568

U.S. at 5. “When an adjustment is requested on the basis of either the exceptional or limited nature of the relief

obtained by the plaintiff, the [courts assessing fees]

should make clear that it has considered the relationship

between the amount of the fee awarded and the results

obtained.” Hensley, 461 U.S. at 437. As the Court has

explained, this rule is motivated by the concern that

17

“awards may be influenced (or at least appear to be influenced) by a judge’s subjective opinion regarding

* * * the importance of the case.” Perdue, 559 U.S. at

557. An adjustment without “proper justification” may

appear to be “essentially arbitrary.” Ibid. (questioning

why the court below adjusted the award by “75% rather

than 50% or 25% or 10%”). The risk that a court’s subjective opinions regarding the underlying claims will influence the Section 1988 fees award is particularly pronounced where, as here, the state court’s failure to adhere to this Court’s precedent on the subject has already

resulted in a summary reversal by this Court.

Here, the Arkansas Supreme Court did not articulate any “special circumstances” justifying the denial of

petitioners’ attorney’s fees application. Indeed, its summary order did not articulate any reasoning at all. By

failing to provide any basis for its denial of fees in the

face of petitioners’ presumptive right to such an award,

the Arkansas Supreme Court has defied this Court’s order to proceed in a manner “not inconsistent” with its

previous order in this matter, Pavan, 137 S. Ct. at 2079,

and the State court’s decision does not accord with binding federal law.

The Arkansas Supreme Court’s failure to provide

any explanation whatsoever for its denial of fees by itself

warrants reversal by this Court, accompanied by instruction to the State court to consider petitioners’ application in accordance with this Court’s precedent. See

Lefemine, 568 U.S. at 5 (“Neither of the courts below addressed whether any special circumstances exist in this

case, * * *. Accordingly, the petition for certiorari is

granted, the judgment [of the lower court] is vacated,

and the case is remanded for further proceedings consistent with this opinion.”).

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Any attempt by respondent to proffer a rationale for

the Arkansas Supreme Court’s unexplained order must

be rejected. It is the court’s order that this Court reviews, and here that order gives no hint of any justification for denying petitioners’ fee request.

In particular, the Court should reject any attempt

by respondent to shield the state court’s decision from

review by suggesting that it stands on an independent

state law ground. Again, the court’s order does not suggest any state law grounds for the denial. Petitioners’

fee dispute arises out of, and exclusively turns on, the

application of federal law regarding the appropriateness

of attorney’s fees under Section 1988. The Arkansas Supreme Court is bound by this Court’s interpretation of

Section 1988. See U.S. Const. Art. VI, Cl. 2. And, even

if the Arkansas Supreme Court had offered some novel

state law ground for rejecting petitioners’ fee application, such a novel rule would not be “adequate” to support denial of fees here. See, e.g., Davis v. Wechsler, 263

U.S. 22, 24 (1923) (“Whatever springes the State may set

for those who are endeavoring to assert rights that the

State confers, the assertion of Federal rights, when

plainly and reasonably made, is not to be defeated under

the name of local practice.”).

The absence of any explanation for the denial of fees

thus represents an independent violation by the Arkansas Supreme Court of this Court’s binding precedent applying Section 1988. Respondent should not be heard to

offer speculative rationales in an effort to avoid this

Court’s review.

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II. THE ARKANSAS SUPREME COURT’S ORDER WARRANTS T HIS C OURT’ S R EVIEW AND C ORRECTION

BECAUSE IT FLOUTS BINDING PRECEDENT AND

WILL D ISCOURAGE PLAINTIFFS FROM V INDICATING C ONSTITUTIONAL R IGHTS I N S TATE C OURTS

This case implicates issues well beyond petitioners’

entitlement in this case to attorney’s fees under Section

1988. After having been summarily reversed by this

Court for failing to apply Obergefell, the Arkansas Supreme Court has responded by depriving petitioners of

the attorney’s fees to which they are entitled. The Arkansas Supreme Court’s actions frustrate the purposes

of Section 1988 and, if allowed to stand, will inhibit plaintiffs from vindicating their civil rights in State courts.

As Congress recognized when it enacted Section

1988, “[i]f private citizens are to be able to assert their

civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs

them to vindicate these rights in court.” S. Rep. No.

1011, 94th Cong., 2d Sess. at 2 (1976). Should this Court

leave the error here uncorrected, state courts that disagree with this Court’s rulings implementing civil rights

laws would have a roadmap to deprive successful civil

rights plaintiffs of their entitlement to recover the attorneys’ fees expended in vindicating their rights.

If the state courts were free simply to ignore successful civil rights plaintiffs’ federal statutory right to

recover fees, citizens would understandably hesitate to

vindicate their constitutional rights through the state

courts. State courts, which both the Constitution and

federal statutes regard as of equal stature for vindicating federal rights, would in practice be relegated to a

20

second-tier status, with plaintiffs understandably avoiding an otherwise viable state forum for fear of being denied fees to which they are entitled under Section 1988.

Moving litigation from state to federal court would

also frustrate the opportunity in appropriate cases for

the state courts to avoid some constitutional questions.

It is often the case in constitutional litigation concerning

state laws that the state laws are subject to narrowing

constructions that would avoid constitutional problems—constructions that are the proper province of the

State courts. See, e.g., Harris Cty. Com’rs Court v.

Moore, 420 U.S. 77, 83 (1975) (citing Railroad Comm’n

of Texas v. Pullman Co., 312 U.S. 496 (1941)) (holding

stay of federal litigation appropriate “in order to provide

the state courts an opportunity to settle the underlying

state-law question and thus avoid the possibility of unnecessarily deciding the constitutional question”); see

also Juidice v. Vail, 430 U.S. 327, 347 (1977) (Stewart, J.,

dissenting) (noting that “state-court construction [of

state law] may obviate or significantly modify the federal questions seemingly presented, thus avoiding * * *

premature constitutional adjudication” (internal quotation marks and citations omitted)). If civil rights plaintiffs are discouraged for fear of being denied recovery of

attorney’s fees from seeking to vindicate their constitutional rights in state court, this Court would be denied

the benefit of state courts’ view on such questions of

state law.

This Court, “by force of the Constitution” is “the ultimate arbiter” of constitutional and federal law. United

States v. Reynolds, 235 U.S. 133, 148 (1914); see also U.S.

Const. Art. VI, Cl. 2. This case has become an unfortunate situation in which this Court must demonstrate (yet

again) its role in the federal structure, and refuse to

21

countenance the Arkansas Supreme Court’s blatant defiance of this Court’s rulings. The Court should again

make clear that state courts are “bound by this Court’s

interpretation of federal law.” James v. City of Boise,

136 S. Ct. 685, 686 (2016) (per curiam); see also Nitro-Lift

Techs., LLC v. Howard, 568 U.S. 17, 21 (2012) (“It is this

Court’s responsibility to say what a statute means, and

once the Court has spoken, it is the duty of other courts

to respect that understanding of the governing rule of

law.” (quoting Rivers v. Roadway Express, Inc., 511

U.S. 298, 312 (1994))).

CONCLUSION

The petition for a writ of certiorari should be

granted and either set for argument or, in the alternative, the judgment of the Supreme Court of Arkansas

should be vacated and the case remanded with clear instructions to make an award of petitioners’ appellate attorney’s fees and expenses, including for this second petition, in accordance with federal law and this Court’s

well-established standards for calculating fees under

Section 1988.

Respectfully submitted,

SHANNON MINTER

CHRISTOPHER STOLL

AMY WHELAN

NATIONAL CENTER

FOR LESBIAN RIGHTS

DOUGLAS HALLWARD-DRIEMEIER

CHRISTOPHER THOMAS BROWN

DANIEL FINE

PATRICK ROATH

ROPES & GRAY LLP

CHERYL MAPLES

Counsel for Petitioner

APRIL 2018