Opposition Brief — Marisa N. Pavan, et al., Petitioners v. Nathaniel Smith

Supp. App. 1

CV-15-988

In the Arkansas Supreme Court

Nathaniel Smith, M.D., MPH,

Director of the Arkansas

Department Of Health, in His

Official Capacity, and His

Successors in Office

Appellant

v.

Marisa N. Pavan and

Terrah D. Pavan, Individually

and as Parents, Next Friends,

and Guardians of T.R.P., a

Minor Child, et al.

Appellees

On Appeal from the Circuit Court

of Pulaski County, Sixth Division,

the Honorable Timothy Fox, Circuit Judge

-----------------------------------------------------------------------------------------------------------------------------------------------------------

Appellees’ Motion for Clarification

-----------------------------------------------------------------------------------------------------------------------------------------------------------

(Electronically Filed Nov. 2, 2017)

CHERYL MAPLES

P.O. Box 59

Heber Springs, AR 72543

On October 19, 2017, this Court “reverse[d] the circuit court’s order, and . . . remand[ed] for entry of a final judgment consistent with the mandate of the

Supreme Court of the United States.” Smith v. Pavan,

Supp. App. 2

2017 Ark. 284, 2017 WL 4683761, at *1 (2017).1 Appellees file this motion to clarify that, as part of this remand, the circuit court should consider in the first

instance any award of attorney’s fees and expenses incurred on appeal.

After prevailing at the circuit court, appellees filed

a motion for attorney’s fees. Pavan v. Smith, No. 60CV15-3153, Plaintiffs’ Motion for Attorneys’ Fees and

Costs (filed Dec. 21, 2015). The circuit court has not yet

ruled on that motion, which Plaintiffs intend to renew

and supplement. In his response to that motion, however, appellant argued that the circuit court could not

award fees and costs for appellate work – even if appellees prevail on appeal – because “any fees and costs

awarded to a prevailing party on appeal must come

from the appellate court.” Pavan v. Smith, No. 60CV15-3153, Defendant’s Response to Plaintiffs’ Motion for

Attorney’s Fees and Costs (filed Jan. 5, 2016) (citing

Race v. Nat’l Cashflow Systems, Inc., 34 Ark. App. 261,

264, 810 S.W.2d 46, 48, affirmed 307 Ark. 131, 817

S.W.2d 876 (1991)).

Appellees disagree. Where, as in this case, the appellate mandate remands for further proceedings and

entry of a new final judgment, the circuit court should

consider awarding appellate fees and costs after entry

of that judgment. Jones v. Flowers, 373 Ark. 213, 218,

283 S.W.3d 551, 555 (2008) (holding, after remand to

circuit court for further proceedings consistent with

1

Barring a petition for rehearing, the Court’s mandate will

issue on November 6, 2017. See Ark. Sup. Ct. R. 2-3, 5-3.

Supp. App. 3

U.S. Supreme Court decision, that motion for attorney’s fees was properly filed in circuit court after that

court entered final judgment); Lewis v. Lewis, 255 Ark.

583, 593, 502 S.W.2d 505, 512 (1973) (“In view of our

remand of the case presently on appeal, it seems that

the better procedure would be for the chancery court to

consider the appropriate amount to be allowed appellant for attorney’s fees for services in that court and

this one when further proceedings are concluded” (emphasis added)).2

This approach accords with that of the U.S. Supreme Court, which directs that motions for U.S. Supreme Court fees and costs be heard first by the trial

court. See Perkins v. Standard Oil Co., 399 U.S. 222,

223 (1970) (“The amount of the award for such services

should, as a general rule, be fixed in the first instance

by the District Court, after hearing evidence as to the

extent and nature of the services rendered.”).

Moreover, it does not make sense for the parties to

incur additional, unnecessary attorney’s fees litigating

which court has jurisdiction over appellate fees. Nor

does it make sense, as appellant appears to suggest, for

appellees to file two simultaneous motions for fees: one

2

Appellant’s cited case is inapposite since it involved a situation whereby the appellate court remanded the case solely for

enforcement of the trial court’s preexisting judgment. See Nat’l

Cashflow Systems, 307 Ark. at pp. 133-34, 817 S.W.2d at p. 877

(noting that first appellate mandate “left nothing open for the

Trial Court except execution on the supersedeas bond”). In contrast, this Court reversed the Circuit Court’s decision and remanded the case for entry of a new final judgment consistent with

the U.S. Supreme Court’s mandate.

Supp. App. 4

in the circuit court and one in this Court. Accordingly,

appellees respectfully request that this Court clarify

when issuing its mandate that the circuit court may

consider on remand, in the first instance, all appellate

fees and expenses. This result is consistent with legal

precedent and will ensure judicial efficiency. And if any

party chooses to appeal any fee order, this clarification

will preserve this Court’s appellate role. See, e.g., Harrill v. Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, at 9-13,

424 S.W.3d 272, 277-279 (2012) (reviewing circuit court

fee award entered after remand from this Court).

Respectfully submitted,

CHERYL K. MAPLES

By: /s/Cheryl Maples

CHERYL K. MAPLES, ABA# 87109

P.O. Box 59

Heber Springs, AR 72543

(501) 416-5485

Email: ckmaples@aol.com

November 2, 2017

[Certificates Omitted]

Supp. App. 5

CV-15-988

In the Arkansas Supreme Court

Nathaniel Smith, M.D., MPH,

Director of the Arkansas

Department Of Health, in His

Official Capacity, and His

Successors in Office

Appellant

v.

Marisa N. Pavan and

Terrah D. Pavan, Individually

and as Parents, Next Friends,

and Guardians of T.R.P., a

Minor Child, et al.

Appellees

On Appeal from the Circuit Court

of Pulaski County, Sixth Division,

the Honorable Timothy Fox, Circuit Judge

-----------------------------------------------------------------------------------------------------------------------------------------------------------

Appellees’ Protective Motion for

Appellate Attorney’s Fees and Expenses

-----------------------------------------------------------------------------------------------------------------------------------------------------------

(Electronically Filed Nov. 21, 2017)

Supp. App. 6

JONATHAN WEISSGLASS

ANDREW KUSHNER

(Pro Hac Vice

Applications

Forthcoming)

Altshuler Berzon LLP

170 Post Street,

Suite 300

San Francisco, CA 94108

Special Fees Counsel

for Appellees

CHERYL MAPLES

P.O. Box 59

Heber Springs, AR

72543

AMY WHELAN

(Pro Hac Vice

Application

Forthcoming)

National Center for

Lesbian Rights

870 Market Street,

Suite 370

San Francisco, CA

94102

Counsel for Appellees

As the prevailing parties in this litigation, appellees hereby move for an award of attorney’s fees and

expenses pursuant to 42 U.S.C. § 1988. This motion is

made as a protective matter pursuant to Arkansas

Rule of Civil Procedure 54(e)(2), which provides that a

motion for attorney’s fees must be filed no later than

14 days after entry of judgment. On November 7, 2017,

this Court issued its mandate, which remanded the

case to the circuit court for entry of final judgment consistent with the mandate of the U.S. Supreme Court.

Although the Arkansas Supreme Court does not have

a rule requiring fee motions within a particular time

and although no final judgment has yet been entered,

appellees file this motion out of an abundance of caution.

Supp. App. 7

Appellees respectfully request an award of appellate attorney’s fees in the approximate amount of

$220,000, and reimbursement for approximately

$6,000 in appellate expenses. Appellees will also request reasonable attorney’s fees and expenses incurred

in litigating attorney’s fees issues (commonly known

as fees-on-fees) in an amount to be determined, if such

fees are incurred.

Appellees file with this motion a separate Motion

to Transfer Attorney’s Fees and Expenses to the circuit

court. Transfer is appropriate for the reasons set forth

in that motion. If, however, this Court denies the motion

to transfer, appellees request that the Court set a

schedule for briefing and submission of evidence. See Addition to Reporter’s Notes to Rule 54, 1997 Amendment.

Respectfully submitted,

CHERYL K. MAPLES

By: /s/Cheryl Maples

CHERYL K. MAPLES, ABA# 87109

P.O. Box 59

Heber Springs, AR 72543

(501) 416-5485

Email: ckmaples@aol.com

AMY WHELAN

Cal. Bar # 215675

(Pro Hac Vice Application Forthcoming)

870 Market Street, Suite 370

San Francisco, CA 94102

(415) 392-6257

Email: awhelan@nclrights.org

Counsel for Appellees

Supp. App. 8

JONATHAN WEISSGLASS

Cal. Bar # 185008

ANDREW KUSHNER

Cal. Bar # 316035

(Pro Hac Vice Applications Forthcoming)

Altshuler Berzon LLP

170 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Email: jweissglass@altber.com

akushner@altber.com

Special Fees Counsel for Appellees

November 21, 2017

[Certificate Omitted]

Supp. App. 9

CV-15-988

In the Arkansas Supreme Court

Nathaniel Smith, M.D., MPH,

Director of the Arkansas

Department Of Health, in His

Official Capacity, and His

Successors in Office

Appellant

v.

Marisa N. Pavan and

Terrah D. Pavan, Individually

and as Parents, Next Friends,

and Guardians of T.R.P., a

Minor Child, et al.

Appellees

On Appeal from the Circuit Court

of Pulaski County, Sixth Division,

the Honorable Timothy Fox, Circuit Judge

-----------------------------------------------------------------------------------------------------------------------------------------------------------

Appellees’ Conditional Reply to Appellant’s

Opposition to Appellees’ Fee Motions

-----------------------------------------------------------------------------------------------------------------------------------------------------------

Supp. App. 10

JONATHAN WEISSGLASS CHERYL MAPLES

ANDREW KUSHNER

P.O. Box 59

(Pro Hac Vice

Heber Springs, AR

Applications

72543

Forthcoming)

AMY WHELAN

Altshuler Berzon LLP

(Pro Hac Vice

170 Post Street,

Application

Suite 300

Forthcoming)

San Francisco, CA 94108

National Center for

Lesbian Rights

Special Fees Counsel

870 Market Street,

for Appellees

Suite 370

San Francisco, CA

94102

Counsel for Appellees

Appellant has sought leave to file a belated opposition to Appellees’ Protective Motion for Appellate Attorney’s Fees and Expenses and Motion to Transfer.

Appellees have filed a separate opposition to that request. In the event that the Court grants Appellant’s

motion for leave, however, Appellees conditionally file

this reply to Appellant’s opposition.

Appellant argues that this Court should deny Appellees’ protective fee motion for three reasons. Opposition at 4. None of the reasons Appellant offers

withstands the barest scrutiny.

First, Appellant argues that Appellees are not the

prevailing party on appeal because, Appellant asserts,

“Appellant was actually the prevailing party in two of

the three appellate orders in this matter.” Opposition

Supp. App. 11

at 4. It is well established under the applicable fee

shifting provision (42 U.S.C. § 1988), however, that

“status as a prevailing party is determined on the outcome of the case as a whole, rather than by piecemeal

assessment of how a party fares on each motion along

the way.” Jenkins v. Missouri, 127 F.3d 709, 714 (8th

Cir. 1997) (emphasis added).1

That Plaintiffs/Appellees are the prevailing party

could not be any more plain. For purposes of section

1988, a plaintiff prevails “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). There is

no question that Appellees’ suit “materially alter[ed]

the legal relationship between the parties” in a way

beneficial to Appellees. Prior to this lawsuit, Defendant

unconstitutionally denied birth certificates to samesex couples under Arkansas Code § 20-18-401(f )(1). As

a result of this litigation, Appellant is required to “ensure that same-sex spouses are afforded the same right

as opposite-sex spouses to be listed on a child’s birth

certificate in Arkansas” – that is, Appellant is required

to issue Appellees and other same-sex couples birth

certificates that list the names of both spouses. Smith

v. Pavan, 2017 Ark 284, at 2. Indeed, this is not even a

case in which Plaintiffs prevailed on some, but not all

1

Appellant’s reliance on Skokos v. Skokos, 333 Ark. 396, 968

S.W.2d 26 (1998) is misplaced. Opposition at 4. Skokos was a divorce case, not a section 1983 civil rights case like Jenkins and

this action. Id. at 399-400.

Supp. App. 12

of their claims. Plaintiffs prevailed on all of their

claims and achieved all of the relief they sought.

Second, Appellant complains that Appellees’ fee

request is unsupported. Opposition at 4. That complaint is premature regardless of how this Court decides to proceed with respect to fees. As an initial

matter, this proceeding should be transferred to the

circuit court for a decision as explained in Appellees’

Motion to Transfer Attorney’s Fees and Expenses.

Moreover, as Appellees have previously explained,

it is unclear whether Arkansas Rule of Civil Procedure

54 applies to Appellees’ motion for appellate fees and

expenses in this Court. See Appellees’ Protective Motion for Appellate Attorney’s Fees and Expenses at 1.

Out of an abundance of caution, Appellees nevertheless filed their protective motion in compliance with

Rule 54.

In the event Rule 54 does apply, Appellees’ motion

is sufficient because it “alert[s] the adversary and the

court that there is a claim for fees and the amount of

such fees or a fair estimate.” See Addition to Reporter’s

Notes to Rule 54, 1997 Amendment. Rule 54 provides

that Appellees’ fee motion need only “state the amount

or provide a fair estimate of the amount sought.” Ark.

R. Civ. Pro. 54(e). As the Reporter’s Notes to Rule 54

contemplate, 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.” Addition

to Reporter’s Notes to Rule 54, 1997 Amendment (emphasis added). Instead, Rule 54 requires the moving

Supp. App. 13

party to submit such evidentiary material in “due

course, according to such schedule as the court may direct in light of the circumstances of the case.” Id. Appellees pointed this out in their protective motion for

appellate fees and expenses. Appellees’ Protective Motion for Appellate Attorney’s Fees and Expenses at 1.2

If, however, Rule 54 does not apply, the time has

not run for a fees motion because there is no governing

procedure, and this Court should instruct the parties

how to address appellate fee issues (if it does not transfer the matter). Appellees will prepare a complete motion for appellate fees and expenses along with

supporting evidentiary materials upon such schedule

as the Court orders. But the Court should reject Appellant’s attempt to impose evidentiary requirements on

Appellees’ protective fee motion where there is no rule

that does so and the motion complies with Rule 54,

which was the reason for bringing the motion in the

first place. That Appellees filed their fee motion in compliance with the only Rule that even arguably applies

cannot be the basis to foreclose Appellees’ ability to

seek appellate fees and expenses, should the Court find

that the Rule does not in fact apply.

2

Skokos, 333 Ark. at 396, 968 S.W.2d at 26, on which Appellant relies, is not to the contrary. See Opposition at 4-5. Skokos

does not consider, or even cite, Rule 54. Instead, the Court evaluated the fee motion under its pre-Rule 54 jurisprudence, which

arose from the Court’s “inherent authority” to consider attorney’s

fees issues. Skokos, 333 Ark. at 399, 968 S.W.2d at 41 (citing

Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997)).

Supp. App. 14

Third, Appellant argues that Appellees’ request

for $220,000 in appellate attorney’s fees is “excessive

and unreasonable.” Opposition at 5. It is uncontested

that Appellant has not seen Appellees’ detailed time

sheets for work performed on appeal. Indeed, in the absence of that information, Appellant’s conclusions

about reasonableness are wholly unsupported conjectures. Accordingly, it would be improper for the Court

to consider this issue without allowing Appellees to file

evidentiary materials and a full-blown fee motion. For

example, an attorney’s lodestar calculation yields a

presumptively reasonable fee under 42 U.S.C. § 1988,

the fee shifting statute at issue here. See Perdue v.

Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). This

Court cannot possibly consider whether the fees Appellees request are reasonable without considering their

attorneys’ lodestar amounts, which Appellees will provide at the appropriate time. The Court should therefore disregard Appellant’s reasonableness argument

until it is ripe for review.

In any case, Appellant’s argument that the issues

on appeal in this case were not “novel or complex”

misses the mark. Opposition at 5. This case required

two rounds of briefing at the Arkansas Supreme Court

and a petition for certiorari before the U.S. Supreme

Court. Because Appellant chose to file a brief opposing

that petition, Appellees were forced to file a reply. On

remand from the U.S. Supreme Court, it was Appellant

who requested supplemental briefing, over Appellees’

opposition. See June 27, 2017 Letter from Lee

Rudofsky, Solicitor General to Stacey Pectol; June 28,

Supp. App. 15

2017 Letter from Cheryl K. Maples to Stacey Pectol. In

short, Appellant vigorously litigated this case at every

level, as he was entitled to do. But those litigation decisions have consequences and Appellant cannot now

complain that this case could have been tried more efficiently. See Henson v. Columbus Bank & Trust Co.,

770 F.2d 1566, 1575 (11th Cir. 1985) (A defendant that

contests its opponent’s claims “cannot then complain

that the fees award should be less than claimed because the case could have been tried with less resources and with fewer hours expended.”).

Finally, Appellant opposes Appellees’ motion to

transfer appellate fees and expenses to the circuit

court. Notably, Appellant does not contest the reason

why transfer is appropriate in this case: it “does not

make sense for this Court – and the parties – to perform the duplicative work of determining attorney’s

fees in two courts.” Motion to Transfer at 1. Instead,

Appellant argues that only this Court can award appellate fees and expenses. Opposition at 7-8. Not so.

Where, as in this case, the appellate mandate remands for further proceedings and entry of a new final

judgment, the circuit court should award appellate fees

after entry of that judgment. Jones v. Flowers, 373 Ark.

213, 218, 283 S.W.3d 551, 555 (2008) (holding, after remand to circuit court for further proceedings consistent with U.S. Supreme Court decision, that motion

for attorney’s fees was properly filed in circuit court after that court entered final judgment); Lewis v. Lewis,

255 Ark. 583, 593, 502 S.W.2d 505, 512 (1973) (“In view

of our remand of the case presently on appeal, it seems

Supp. App. 16

that the better procedure would be for the chancery

court to consider the appropriate amount to be allowed

appellant for attorney’s fees for services in that court

and this one when further proceedings are concluded”

(emphasis added)).

The case on which Appellant relies – Race v. National Cashflow Systems, Inc., 34 Ark. App. 261, 264,

810 S.W.2d 46, 48, affirmed 307 Ark. 131, 817 S.W.2d

876 (1991) – is inapposite. There, the appellate court

remanded the case solely for enforcement of the trial

court’s pre-existing judgment. See Nat’l Cashflow Systems, 307 Ark. at 133-34, 817 S.W.2d at p. 877 (noting

that first appellate mandate “left nothing open for the

Trial Court except execution on the supersedeas

bond”). In contrast, this Court remanded the case for

entry of a new final judgment consistent with the U.S.

Supreme Court’s mandate. Smith, 2017 Ark 284, at 2.

The rule in Jones therefore applies.

Even were Race to apply, Appellant’s argument

would still fail. Even where the appellate mandate remands solely for enforcement of a pre-existing judgment, “the appellate court can direct the trial court

upon remand to award an additional amount for the

services of the appellant’s attorney in the appellate

court.” Race, 34 Ark. App. at 263, 810 S.W.2d at 47.

Granting Appellees’ motion to transfer would, consistent with Race, serve as authorization for the circuit

court to consider appellate fees and expenses.

Supp. App. 17

Nor does it matter that this Court’s rules address

costs. Ark. Sup. Ct. R. 6-7. Appellant filed a motion for

fees, and did not seek statutory costs.

Accordingly, this Court should reject the arguments in Appellant’s belated opposition to Appellees’

fee motions. Instead, the Court should grant Appellees’

Motion to Transfer Appellate Fees and Expenses, for

the reasons set forth in that motion. If the Court does

not grant Appellees’ Motion to Transfer, Appellees respectfully request guidance as to how the parties

should address appellate fees and expenses, including

a briefing schedule from this Court.

Respectfully submitted,

CHERYL K. MAPLES

By: /s/Cheryl Maples

CHERYL K. MAPLES, ABA# 87109

P.O. Box 59

Heber Springs, AR 72543

(501) 416-5485

Email: ckmaples@aol.com

AMY WHELAN

Cal. Bar # 215675

(Pro Hac Vice Application

Forthcoming)

870 Market Street, Suite 370

San Francisco, CA 94102

(415) 392-6257

Email: awhelan@nclrights.org

Counsel for Appellees

Supp. App. 18

JONATHAN WEISSGLASS

Cal. Bar # 185008

ANDREW KUSHNER

Cal. Bar # 316035

(Pro Hac Vice Applications

Forthcoming)

Altshuler Berzon LLP

170 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Email: jweissglass@altber.com

akushner@altber.com

Special Fees Counsel for Appellees

December 8, 2017

[Certificates Omitted]

Supp. App. 19

IN THE CIRCUIT COURT OF PULASKI COUNTY,

ARKANSAS SIXTH DIVISION

MARISA N. PAVAN and

TERRAH D. PAVAN, individually

and as parents, next friends, and

guardians of T.R.P., a minor child

PLAINTIFFS

LEIGH D.W. JACOBS and

JANA S. JACOBS, individually,

and as parents, next friends,

and guardians of F.D.J., a minor child

COURTNEY M. KASSEL and

KELLY L. SCOTT, individually,

and as parents, next friends, and

guardians of A.G.S., a minor child

VS.

CASE NO. 60CV-15-3153

NATHANIEL SMITH, MD, MPH

DEFENDANT

Director of the Arkansas Department

of Health, in his official capacity,

and his successors in office

MEMORANDUM OPINION

CONCERNING AWARD OF PLAINTIFFS’

ATTORNEY’S FEES AND COSTS

(Electronically Filed Feb. 16, 2018)

On the 16 day of February, 2018 came on for consideration the plaintiffs’ Motion for Attorney’s Fees and

Costs filed on December 21, 2015, the plaintiffs’ Supplemental Motion for Attorney’s Fees and Costs filed on

January 8, 2018, together with the attachments to both

motions, the defendant’s Response to Plaintiffs’ Motion

Supp. App. 20

for Attorney’s Fees filed on January 5, 2016, the defendant’s Response in Opposition to Plaintiffs’ Supplemental Motion for Attorney’s Fees and Costs filed on

January 25, 2018, as well as the briefs of the parties,

and the court doth find as follows:

The Arkansas Supreme Court has on numerous

occasions enumerated the eight factors that courts are

to consider in determining the award of a reasonable

attorney’s fee, See, Chrisco v. Sun Indus., 304 Ark. 227,

800 S.W.2d 717 (1990) and South Beach Beverage Company, Inc. v. Harris Brands, Inc., 355 Ark. 347, 138

S.W.3d 102 (2003). As stated in South Beach Beverage

Company, the factors are:

(1) the experience and ability of counsel; (2)

the time and labor required to perform the legal service properly; (3) the amount of time involved in the case and the results obtained; (4)

the novelty and difficulty of the issues involved; (5) the fee customarily charged in the

locality for similar services; (6) whether the

fee is fixed or contingent; (7) the time limitations imposed upon the client or by the circumstances; and (8) the likelihood, if apparent

to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

On December 21, 2015, the plaintiffs filed a Motion for Attorney’s Fees and Costs and on January 8,

2018, the plaintiffs filed a Supplemental Motion for Attorney’s Fees and Costs. The defendant filed responses

to both pleadings. The applicability of the eight factors

Supp. App. 21

are addressed in the affidavits of plaintiffs’ counsel attached to the motions. The averments for the most part

remain unrebutted by the defendant, with the exception of factors (2) and (3).1

Both the original Motion and the Supplemental

Motion, together with the supporting documentation,

can be fairly characterized as reflecting inferior craftsmanship. If the two motions were analyzed on a classic

grading scale, they would receive a C- or a D+. There

are no supporting affidavits from practicing local counsel as to plaintiffs’ counsel’s experience or as to the reasonableness of the requested hourly rate. All of the

time entries—although they do appear to have been

kept contemporaneously, as required by the Arkansas

Supreme Court if time expended is going to be a major

component of the fee decision—are materially deficient

with respect to descriptions of the work performed. The

actions of plaintiffs’ counsel indicate that she is totally

unfamiliar with the Rules of Civil Procedure and the

Rules of Appellate Procedure relating to procedural

matters involving the award of attorney’s fees and

costs.

The defendant’s initial responsive pleading, Defendant’s Response to Plaintiffs’ Motion for Attorney’s

Fees and Costs, filed on January 5, 2016, was well written and, in several instances, provided helpful insight

1

In the response to the Supplemental Motion, counsel for the

defendants also makes completely unsupported objections to an

hourly rate of $250.00 to $300.00 for an attorney who has engaged

in the practice of law in the Central Arkansas area for more than

three decades.

Supp. App. 22

for the court concerning resolution of the relevant issues.2 The defendant’s most recent filing, Defendant’s

Response in Opposition to Plaintiffs’ Supplemental Motion for Attorney’s Fees and Costs, filed on January 25,

2018, falls well short of even the minimum levels of

competency.3

2

The court notes the Response to the original fee motion was

filed by Colin Jorgensen. Mr. Jorgensen has practiced law in Arkansas for quite a number of years and has a well-earned reputation throughout the entire State for his cogent, intellectual

arguments premised on the Rule of Law and for his sense of professionalism. Although the court disagrees with a number of the

conclusions he urged the court to adopt, his Response is an example of the high caliber of advocacy that was once exhibited by attorneys in the Civil Division of the Attorney General’s office. As

an example, the initial Response correctly points out that sovereign immunity prevents the award of any attorney’s fees or costs

against the State of Arkansas under the Arkansas Civil Rights

Act.

3

The Complaint alleged two causes of action: (i) violation of

the Arkansas Civil Rights Act, and (ii) violation of 42 U.S.C.

§ 1983. The defendant’s initial Response argued that the State

has sovereign immunity with respect to the award of attorney’s

fees pursuant to the Arkansas Civil Rights Act. Sovereign immunity was not raised under the then status of Arkansas case law

with respect to the plaintiffs’ claim for the award of attorney’s fees

and costs pursuant to 42 U.S.C. § 1988.

The defendant’s Response to the Supplemental Motion was

filed on January 25, 2018, one week after the Arkansas Supreme

Court issued its decision in Board of Trustees of the University of

Arkansas v. Andrews, 2018 Ark. 12 (January 18, 2018). The Arkansas Supreme Court has not yet had a chance to fully define

the parameters of sovereign immunity post-Andrews. Defendant’s

counsel didn’t even raise sovereign immunity as a threshold bar

to the award of any attorney’s fees and costs under 42 U.S.C.

§ 1988. In fact, except for incorporating the original Response by

reference, the Response to the Supplemental Motion contains no

Supp. App. 23

mention of sovereign immunity. The Arkansas Supreme Court

has recently restated its position, albeit in criminal cases, that

the Court will not consider arguments, even constitutional ones,

that are raised for the first time on appeal, Green v. State, 330

Ark. 458, 956 S.W.2d 849 (1997). The Court has also stated that

a party’s failure to obtain a ruling on an issue, even a constitutional issue, at the trial court level, will preclude appellate review

of such issue, Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163

(2001). The pleadings have closed in this matter and it is now too

late to raise a threshold issue that should have been the defendant’s first point in his Response.

Counsel for defendant makes a truly ridiculous statement in

asserting that the plaintiffs shouldn’t be awarded any attorney’s

fees prior to the Arkansas Supreme Court’s first decision because

the plaintiffs were not the “prevailing party” as a result of the

initial reversal by the Arkansas Supreme Court (footnote 4, page

9, Defendant’s Response In Opposition To Plaintiffs’ Supplemental Motion For Attorneys’ Fees And Costs And Incorporated

Brief filed on January 25, 2018.) Such statement is not only incorrect, both factually and legally, it is contrary to the first sentence

of defendant’s initial responsive pleading (ADH concedes that the

Plaintiffs are prevailing parties under this Court’s Order and

Memorandum Opinion entered December 1, 2015.) It was counsel

for the defendant that advanced a constitutionally unsupportable

legal argument that led a majority of the Arkansas Supreme

Court into error in issuing its first opinion. That decision was

summarily reversed by the United States Supreme Court. Summary reversals are relatively rare occurrences, reserved only for

the most patently egregious errors of law.

Additionally, counsel for defendant evidences a complete lack

of professionalism, as well as common sense, with the suggestion

that any fees awarded since the remand shouldn’t exceed

$2,500.00. (page 2, Defendant’s Response In Opposition To Plaintiffs’ Supplemental Motion For Attorneys’ Fees And Costs And Incorporated Brief filed on January 25, 2018.) The court notes,

anecdotally and not as a factor in the present fee determination,

that the Arkansas Democrat-Gazette has recently reported that

members of the Arkansas Supreme Court have requested the

award of attorney’s fees in excess of $150,000.00 for fees in a

Supp. App. 24

ANALYSIS OF MOTION AND SUPPLEMENTAL MOTION

Motion for Attorney’s Fees and Costs

The plaintiffs’ original Motion for Attorney’s Fees

and Costs was filed on December 21, 2015. That filing

was prior to the conclusion of this matter, at either the

trial or appellate level. At that time this case was far

from being completed, and as pointed out by Colin

Jorgensen, defendant’s counsel at the time, the plaintiff ’s Motion was premature as there had not been a

final determination as to the prevailing party in this

action. As noted above, counsel for the plaintiffs has

made a number of procedural errors concerning the

award of attorney’s fees and costs. The net result of

those errors is two-fold. The plaintiffs are now ineligible to request the award of a large amount of attorney’s

fees and costs that were legitimately incurred while

this case was on appeal to the Arkansas Supreme

Court and the United States Supreme Court. The flip

side is that the taxpayers of the State of Arkansas will

enjoy a large savings windfall. If plaintiffs’ counsel had

understood and followed the proper procedures for requesting the award of attorney’s fees and costs, the taxpayers might have had to pay a substantially larger

amount to plaintiffs.

The original Response correctly pointed out that

the doctrine of sovereign immunity prevented the

award of any fees or costs to the plaintiffs pursuant to

pending case in which there hasn’t even been a single hearing

conducted as of the present date. Presumably they consider such

fees reasonable as they are requesting that the fees be paid.

Supp. App. 25

their claim under the Arkansas Civil Rights Act. As the

plaintiffs had also requested relief under 42 U.S.C.

§§ 1983 and 1988, the Response then addressed perceived infirmities in the substance of the fee request.

The court agrees with the defendant’s Response in

two respects. First, the amount of fees requested for

communication back and forth with clients is substantially outside out of the reasonable customary and normal percentage of attorney time devoted to a case. The

court acknowledges that the plaintiffs are three different couples and that the factual scenario was different

for each of those three sets of plaintiffs. The communications with the various clients are evidenced by “CL#”

entries. Regardless, the amount claimed, both in quantity and as a percentage of total time is unreasonable.

The request is for 17.7 hours of billable time for communications before the filing of the litigation. That request will be reduced by fifty percent (50%) from 17.7

hours to 8.85 hours. This yields a reduction of

$2,212.50 at the initial claimed hourly rate of $250.00

per hour. Second, the amount of time billed on November 23, 2015, is excessive. There are over sixty time slip

entries for that date, totaling more than twenty billable hours in one day. The claimed amount is going to be

reduced to twelve billable hours for November 23,

2015, resulting in a decrease in the claimed fee of

$2,137.50 at the then claimed hourly rate of $250.00

per hour. After reducing the fees claimed in the original Motion, the court finds that the reasonable attorney’s fees reflected in the original Motion are

$42,662.50. The plaintiff requests reimbursement of

Supp. App. 26

filing and service fees, and other appropriate costs in

the amount of $515.00. The court finds such costs to

have been reasonably incurred.

Supplemental Motion for Attorney’s Fees and Costs

The plaintiffs filed their Supplemental Motion for

Attorney’s Fees and Costs on January 8, 2018. The Supplemental Motion incorporates the original Motion and

states that during the pendency of this case the plaintiffs’ counsel’s hourly rate has increased to $300.00 an

hour. There is no claim for any of the attorney’s fees or

costs incurred by plaintiff during any of the appellate

proceedings.5

After reviewing the time entries, the court has determined that the requested fees should be reduced in

four areas. First, plaintiffs request that their counsel’s

new rate of $300.00 be applied retroactively to all time

incurred prior to the hourly increase is denied. The

5

In Paragraph 5 of the Supplemental Motion, plaintiffs’

counsel states that there were pleadings requesting the award of

appellate fees and costs filed with the Arkansas Supreme Court,

that such requests were either denied or disposed of in some other

manner, and attempts to “expressly reserve the right to seek

those fees.” In the event the Arkansas Supreme Court desires to

address that issue in the event of any appeal from this decision it

has the authority to do so. It facially appears that the plaintiffs’

request at the appellate level was denied because it was procedurally improper, that all of the requested fees and costs should

have been submitted to this court for a factual determination, and

that under the Arkansas Rules of Civil and Appellate Procedure

that the plaintiffs have forfeited their ability to request the award

of any additional fees or costs by not properly and timely submitting them to this court for adjudication.

Supp. App. 27

court acknowledges that there is case precedent in 42

U.S.C. § 1988 fee awards to gross up all time to the

most recent, highest billable rate. Even though this

case was appealed all the way to the United States Supreme Court, it was managed at the trial court level in

such a manner that the entire litigation process took

less than three years. So, the time accrued while counsel’s rate was $250.00 an hour will be recompensed at

that level.

Second, the December 6, 2017 entry for 3.25 hours

in the amount of $975.00 to “amend timesheets” is not

reasonable. One of the considerations for justifying

minimum time block billing for certain activities is

that such time includes the time it takes the attorney

to enter a time record in their billing software.

Third, there are 36 separate time entries for December 8, 2017, such entries totaling 14.0 hours of billable time. The time requested for such date will be

reduced by 4.0 hours, representing a reduction of

$1,200.00.

Fourth, there is an entry on January 5, 2018, for

6.25 hours, to “update time sheets for filing.” As previously stated there should not have been any time incurred to update contemporaneously made time

records. The time sheets reflect sufficient time for preparing and finalizing the Supplemental Motion and

supporting affidavit. Removal of such 6.25 hours constitutes a further reduction in the amount of

$1,875.00.

Supp. App. 28

The aggregate fee requested by the plaintiffs is

$88,440.00. The court declines to utilize a multiplier.

After making the deductions set forth above, the approved amount for attorney’s fees is $70,637.50. The

Supplemental Motion requests the award of additional

costs in the amount of $61.50. The court finds the additional requested costs to be reasonable. The total

costs awarded are $576.50.

This Memorandum Opinion is being filed in conjunction with the court’s Order concerning the award

of attorney’s fees and costs. It is incorporated by reference into such Order.

/s/ [signature]

TIMOTHY DAVIS FOX

CIRCUIT JUDGE

2/16/18

DATE

Supp. App. 29

IN THE CIRCUIT COURT OF PULASKI COUNTY,

ARKANSAS SIXTH DIVISION

MARISA N. PAVAN and

TERRAH D. PAVAN, Individually,

and Marisa N. Pavan and Terrah D.

Pavan, as parents, next friends and

guardians of T.R.P., a minor child

LEIGH D. W. JACOBS and

JANA S. JACOBS, Individually,

and Leigh D. W. Jacobs and Jana S.

Jacobs, as parents, next friends and

guardians of F.D.J., a minor child

COURTNEY M. KASSEL and

KELLY L. SCOTT, Individually, and

Courtney M. Kassel and Kelly L.

Scott, as parents, next friends and

guardians of A.G.S., a minor child

VS.

PLAINTIFFS

CASE NO. 60CV-15-3153

NATHANIEL SMITH, MD, MPH,

Director of the Arkansas Department

of Health, in his official capacity, and

his successors in office

DEFENDANT

PLAINTIFFS’ MOTION FOR

PARTIAL RECONSIDERATION

(Electronically Filed Mar. 6, 2018)

Pursuant to Arkansas Rule of Civil Procedure

60(a), Plaintiffs respectfully move for partial reconsideration of this Court’s February 16, 2018 Memorandum Opinion Concerning Award of Plaintiffs’

Attorney’s Fees and Costs. Plaintiffs do not seek

Supp. App. 30

reconsideration of the amount of attorney’s fees and

costs awarded by this Court, which have now been paid

in full by Defendant. Instead, Plaintiffs request only

that the Court modify its discussion of Plaintiffs’ right

to attorneys’ fees and costs incurred on appeal—an issue that is not currently pending, and was never pending, before this Court. Such a modification is

warranted in light of the additional information provided herein that was never filed on this Court’s

docket. In particular, Plaintiffs provide information regarding their extensive efforts to transfer the issue of

appellate fees to this Court and to preserve their entitlement to appellate fees. Given these additional facts,

and in order to avoid any prejudice or confusion in subsequent proceedings regarding those appellate fees

and costs, Plaintiffs respectfully request that the Court

modify the discussion of appellate attorneys’ fees in its

February 16 memorandum opinion by deleting the last

nine lines (beginning with “As noted above, . . . ”) of the

first paragraph on page 4, as well as footnote 5 on page

6.

Under Rule 60(a), this Court may modify an order

or decree within 90 days of its having been filed with

the clerk. Ark. R. Civ. P. 60(a). The provision grants

this Court “broad authority” to do so in the interests of

justice. Lord v. Mazzanti, 339 Ark. 25, 29-30, 2 SW.2d

76, 79 (1999). This Court should exercise that authority in this case to prevent its February 16 memorandum opinion from creating any confusion or prejudice

to Plaintiffs regarding the procedural circumstances

Supp. App. 31

surrounding Plaintiffs’ attempts to recover appellate

attorneys’ fees.

As explained in the attached Declaration of Cheryl

Maples, Plaintiffs were careful and conscientious in

pursuing an award of attorneys’ fees and costs incurred on appeal in this matter. Following the original

entry of judgment by this Court, Plaintiffs’ counsel

filed a motion for fees within the deadlines established

by Arkansas Rule of Civil Procedure 54(e). Maples

Decl. ¶¶ 3-4 and Ex. A.1 In its opposition to that motion, Defendant argued to this Court that even if Plaintiffs prevailed on appeal, this Court could not award

any fees and costs incurred on appeal, because “any

fees and costs awarded to a prevailing party on appeal

must come from the appellate court.” Maples Decl. Ex.

B. at 8 (citing Race v. Nat’l Cashflow Systems, Inc., 34

Ark. App. 261, 264, 810 S.W.2d 46, 48, affirmed 307

Ark. 131, 817 S.W.2d 876 (1991)). As Defendant had already appealed this Court’s underlying order, there

was no further activity related to the fee motion.

After the Arkansas Supreme Court reversed this

Court’s decision, Plaintiffs sought certiorari with the

United States Supreme Court, which summarily reversed the Arkansas Supreme Court’s decision. Given

Defendant’s prior contention that this Court lacked jurisdiction to award any appellate fees, however, and

1

In filing that initial fee motion prior to the resolution of any

appeal from that judgment, Plaintiffs’ counsel followed the guidance provided by the Reporter’s Notes to Rule 54(e), which state

that the deadline for filing such a motion is not tolled by the filing

of a notice of appeal.

Supp. App. 32

out of an abundance of caution, Plaintiffs took extensive steps to protect their entitlement to appellate attorneys’ fees (and supplemental fees incurred before

this Court).

First, on November 2, 2017, Plaintiffs filed a Motion for Clarification with the Arkansas Supreme

Court asking the Court to clarify in its mandate that

this Court could and should award appellate attorneys’

fees on remand. Maples Decl. Ex. C at 3. The Arkansas

Supreme Court issued the mandate on November 7

without ruling on Plaintiffs motion.2 Maples Decl. Ex.

D.

On November 21, 2017, Plaintiffs then filed with

the Arkansas Supreme Court a Protective Motion for

Appellate Attorney’s Fees and Expenses and a Motion

to Transfer Attorney’s Fees and Expenses to this

Court. Plaintiffs filed those motions in compliance with

the 14 day deadline to file fee motions contained in

Rule 54(e). Maples Decl. ¶ 9. The motion to transfer

asked the Arkansas Supreme Court to permit this

Court to consider Plaintiffs’ motion for appellate attorneys’ fees and costs in the first instance. Maples Decl.

Ex. G. at 1. In the alternative, and because Plaintiff

was unsure when the Arkansas Supreme Court would

rule on that motion, Plaintiffs also filed their appellate

fee motion and requested, in accordance with applicable rules, that the Supreme Court set a briefing

2

On November 30—after Plaintiffs had already filed their

protective fee motion and motion to transfer (which are discussed

below)—the state Supreme Court denied the motion for clarification without explanation. Maples Decl. Ex. E.

Supp. App. 33

schedule for submission of evidence and full briefing in

support of that award. Maples Decl. Ex. F at 2.

Defendant tendered a response to Plaintiffs’ motions, offering three merits-related reasons why the Arkansas Supreme Court should deny the protective fee

motion. Maples Decl. Ex. H at 4-7. Defendant also opposed the motion to transfer, arguing again that the

only court with jurisdiction to award appellate fees

was the court in which those fees were incurred. Id. at

6-7. Plaintiffs tendered a conditional reply, which responded to the Defendant’s merits arguments. Maples

Decl. Ex. I at 1-5. Plaintiffs also responded to Defendant’s opposition to the motion to transfer. Id at 6-7.

On January 4, 2018, the Arkansas Supreme Court

summarily denied the motion to transfer and the protective motion for appellate attorneys’ fees without explanation.3 Maples Decl. Ex. J. Because the Arkansas

Supreme Court denied both Plaintiffs’ motion to transfer and motion for appellate fees, Plaintiffs excluded

appellate time from their supplemental fee motion

filed before this Court. See Supp. Fee Mot. at 2-3 (Jan.

10, 2018). That supplemental fee motion expressly preserved Plaintiffs’ right to continue pursuing appellate

fees.

Because none of these proceedings regarding appellate fees and expenses took place in this Court, this

Court had no reason to be aware of those proceedings

when issuing its Memorandum Opinion. In light of

3

The Court did so over the dissent of Justice Wynne, who

would have set a schedule for briefing and submission of evidence.

Maples Decl. Ex. J.

Supp. App. 34

these additional facts, however, and because the

Court’s discussion of Plaintiffs’ entitlement to appellate fees and expenses was unnecessary to its determination of the amount of fees and expenses Plaintiffs

should be awarded for work performed in this Court,

Plaintiffs respectfully request that the Court modify

the Memorandum Opinion by eliminating the discussion of Plaintiffs’ entitlement to appellate attorneys’

fees on page 4 and in footnote 5. Such a modification

will help the parties and any reviewing courts avoid

confusion regarding the prior fees proceedings that occurred in this Court and in the Arkansas Supreme

Court.

WHEREFORE, Plaintiffs respectfully request

that this Court modify the discussion of appellate attorneys’ fees in its February 16 memorandum opinion

by removing the last nine lines (beginning with “As

noted above, . . . ”) of the first paragraph on page 4 and

footnote 5 on page 6.

Dated: March 6, 2018

Respectfully submitted,

/s/ Cheryl K. Maples

Cheryl K. Maples ABA# 87109

P.O. Box 59

Heber Springs, AR 72543

(501) 416-5485

Fax (501) 362-2128

Email: ckmaples@aol.com

[Certificates Omitted]