Prof. David Levine Discusses Prop 8 Fees

The following article was posted on the Daily Journal on September 16, 2010.

PROP. 8 PLAINTIFFS MAY RECOUP FEES
Challengers to Same-Sex Marriage Ban May Try to Recoup Fees if They Maintain Win
By Rebecca Beyer
Daily Journal Staff Writer

SAN FRANCISCO - The Proposition 8 case, which is now before the 9th U.S. Circuit Court of Appeals, has rocketed through a litigation process that takes most cases years to complete, and along the way, something else has rocketed as well: the amount of legal fees on both sides.

The issue of who should pay the fees has been postponed while the case moves through the appellate process, and for good reason: the prevailing party may change during that time. Still, attorneys in the case have already hinted it will be a contentious battle. In papers filed last month, ProtectMarriage.com, the backers of the same-sex marriage ban who intervened to defend it in court, argue they can't be held liable for the fees. If that's true, the state defendants - Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, who did not defend the law at trial - may be on the hook for what one source close to the case said are fees "well into the millions" of dollars.

The plaintiffs' high-powered - and expensive - lawyers, led by David Boies, of Boies, Schiller & Flexner, and Theodore B. Olson, of Gibson, Dunn & Crutcher wouldn't comment on their rates. But Gibson Dunn donated $100,000 worth of work pro bono to the plaintiffs' case, which is being funded by a group called the American Foundation for Equal Rights.

In the United States, unlike other countries where the losing party pays the prevailing party's fees, litigants generally pay their own fees. In certain types of cases, however, including civil rights cases like the Prop. 8 litigation, the law includes a fee-shifting provision that allows prevailing plaintiffs to recover from losing defendants. Defendants in civil rights cases, however, normally cannot recover their fees from plaintiffs unless the plaintiffs lawsuit is found to be frivolous.

Although controlling U.S. Supreme Court case law seems to indicate ProtectMarriage.com can't be held liable for fees as an intervenor unless their defense is found to be "frivolous, unreasonable, or without foundation," some observers think that may not be the last word in a case like this one, where the intervenors were the only active defendants.

"There are some cases out there which suggest that these permissive intervenors, who effectively become like defendants, may be liable for some attorneys' fees," said Sheldon H. Nahmod, an expert on civil rights law and a professor at Chicago-Kent College of the Law. "The tricky issue is that without the permissive intervenors here, the attorneys' fees awarded to the plaintiffs would be far less than otherwise."

Filed in May 2009, the federal Prop. 8 case, in which two same-sex couples challenged the voter-approved gay marriage ban, was tried before Northern District Chief Judge Vaughn R. Walker in January, wrapped up with closing arguments in June and finished at the district court level in August when Walker issued his landmark ruling striking the law down as unconstitutional. 

After the ruling, Walker granted a request by the plaintiffs to extend a 14-day deadline to file a motion for fees. Walker ordered that the motion be filed "not later than thirty days after all appeals of the August, 12, 2010 judgment are final."

Attorneys for ProtectMarriage.com, who opposed the extension of time, did not respond to multiple requests for comment. But in their papers opposing the extension, they point to 9th Circuit and Supreme Court case law as proof they can't be made to pay if Walker's ruling stands. Instead, they argue, the state will be liable for any fees.

Deputy Attorney General Tamar Pachter, who represented Brown in the proceedings (Brown sided with the plaintiffs and argued in papers that the law was unconstitutional), said her side has asked the plaintiffs "to consider not requesting fees of the state." So far, the plaintiffs have not responded to that request, she said.

"All of this is so hypothetical at this point, and that's one of the reasons the plaintiffs have not yet responded," she said. "They've been very busy with other things."

The fact that the attorney general did not defend the law is one reason the state thinks it should not have to pay if the plaintiffs ultimately prevail.

"That is part of our thinking," she said.

Theodore J. Boutrous Jr., one of the plaintiffs' lead attorneys and a partner at Gibson, Dunn in Los Angeles, said the state's request was "something we're going to look at and consider once we refocus on the fee issues after the appellate process has run its course" and if the plaintiffs maintain their win on appeal. Despite ProtectMarriage.com's argument that it can't be liable, Boutrous said the plaintiffs "think there is authority to seek fees and costs from the proponents who intervene" in a case the way ProtectMarriage.com did.

ProtectMarriage.com is staking its arguments on a 9th Circuit case in which the Democratic, Republican and Libertarian parties in Washington state successfully sued to eliminate Washington's "blanket primary" elections.

A non-partisan advocacy group, the Washington State Grange, intervened on the side of the state. But the court ruled that the Grange could not be held liable for fees even though "the Grange's arguments doubtless required the plaintiffs' lawyers to spend additional time" because "the Grange, an intervening defendant, could neither have granted that relief nor denied it." Democratic Party of Washington State v. Reed, 02-35422, 02-35424, 02-35428 (2004). Applying a standard set forth in a U.S. Supreme Court case, Flight Attendants v. Zipes (1989), the 9th Circuit held that the Grange's position was not "frivolous, unreasonable, or without foundation" and did not award fees against the entity.

David Levine, a UC Hastings College of the Law professor who has been following the Prop. 8 case, said the "frivolous" standard would likely serve ProtectMarriage.com well in the looming fees battle.

"They lost decisively, yes, but I don't think you can say that what they did was frivolous or without foundation," he said. "They defended a proposition that was voted on by seven million plus voters in California."

Levine pointed out that ProtectMarriage.com put on a case with witnesses and extensively cross-examined the plaintiffs' witnesses. Despite the fact that Walker rejected their arguments, he said, "it's not as if they were coming up with some utterly ridiculous position. They did defend the proposition as best they could."

A 7th U.S. Circuit Court of Appeals case could provide support for the idea that ProtectMarriage.com should pay. In that case - which in its Supreme Court incarnation has been used to support the idea that ProtectMarriage.com does not have standing to appeal Walker's decision - a group of Illinois doctors who performed abortions sued over a state abortion law that subjected them to criminal prosecution for certain violations. Another group of physicians intervened on the side of the state, which lost. On appeal at the Supreme Court, the intervening doctors were found not to have standing to appeal.

"We cannot and refuse to ignore the fact that the intervenors' unilateral decision, one week after the plaintiffs filed suit, to join with the state defendants in adamantly defending the constitutionality of the Abortion Act rendered them full-fledged parties to the lawsuit," the 7th Circuit held, in assessing fees against the intervenors and the state. Charles v. Daley, 86-1552, 86-3137 (1988).

The problem for the Prop. 8 plaintiffs is that case came out before the "frivolous" standard was set at the Supreme Court. Still, Nahmod said he thinks it's an "open question" given the unique facts in the Prop. 8 case.

The governing case law "may not speak to a situation where the defendants basically all fold and the attorneys' fees for the most part are racked up by the plaintiffs in response to the permissive intervenors," he said.

If Walker's ruling is eventually overturned, most experts agreed that it would be next to impossible for the intervenors to win fees from the plaintiffs.

"First of all, [the intervenors] can't have it both ways," said Nahmod. "They're not really defendants. Secondly, even if they were, they would have to show that those who challenged Prop. 8 brought a frivolous, groundless or unreasonable lawsuit, which I think is going to be very difficult to do."

For now, the issue will go unresolved. With oral arguments at the 9th Circuit scheduled for the week of Dec. 6, it will be at least months and possibly years before the case is ultimately decided. Until then, Walker has ruled that question of money can wait, brushing aside ProtectMarriage.com's argument that the plaintiffs' fee request should come now while the case is still "freshly in mind."

"The case is unlikely to fade quickly from the court's memory," Walker wrote.