Douglas Hallward-Driemeier addresses the media outside the U.S. Supreme Court after arguments in the same-sex marriage case “Obergefell v. Hodges.” Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Lawyers for the same-sex Arkansas couples who won the right to list both spouses on birth certificates of their newborn children are back before the U.S. Supreme Court, seeking attorney fees the Arkansas Supreme Court has denied.

Douglas Hallward-Driemeier, a partner at Ropes & Gray who won the 2017 case Pavan v. Smith, filed a cert petition this week asserting that lawyers for the couples are “indisputably prevailing parties within the meaning of the fee-shifting provision” of federal law and should be awarded an estimated $220,000 in legal fees.

The petition asks the Supreme Court to review the case to decide 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 … without providing any basis for its denial.”

The 2017 Pavan ruling was a summary per curiam opinion—unsigned and not preceded by oral argument—that was heralded as an important sequel to the 2015 Obergefell v. Hodges decision entitling same-sex couples to be married on the same “terms and conditions” as opposite-sex couples.

After the ruling in Pavan, the case was remanded to the Arkansas Supreme Court, which ordered that the high court's decision on birth certificates be obeyed. But on the issue of legal fees, the Arkansas court said no. On Jan. 4, 2018, the Arkansas tribunal, without explanation, decreed: “appellees' motion for appellate attorney's fees and expenses is denied.”

In an interview Thursday, Hallward-Driemeier said the Arkansas ruling on lawyer fees was “exceptionally frustrating, because there was no question that we were the prevailing party.” At one point in the arguments over the fee question, he said, Arkansas officials claimed that the state was the prevailing party, albeit in the earlier stages of the litigation, not at the end when the same-sex couples won.

Asked for a comment on the petition, Jessica Ray, spokeswoman for the Arkansas attorney general's office, said in a statement: “The Attorney General is reviewing the petition and will file a response if the United States Supreme Court requests one. The Arkansas Supreme Court correctly concluded that the plaintiffs were not entitled to appellate attorney's fees. The Attorney General expects the United States Supreme Court will deny the plaintiffs' request for further review.”

The U.S. Supreme Court rarely engages in “error correction”—overturning a lower court ruling just because it was wrong—instead reserving its power for deciding constitutional and statutory issues with broader implications.

But Hallward-Driemeier asserts that Arkansas' defiance on the attorney fee issue does, in fact, raise broader issues.

“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,” Hallward-Driemeier wrote in the petition.

If state courts are allowed to reject legitimate fee claims under federal law, Hallward-Driemeier said, “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.”

In addition, Hallward-Driemeier asserted that without the likelihood of fee recovery, those who challenge state actions might skip state courts and sue directly in federal courts. “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.”

Hallward-Driemeier and Ropes & Gray were also involved in Obergefell, challenging Tennessee's same-sex marriage ban as part of the 2015 case. The firm was awarded $600,000 out of a total fee award of $2 million from Tennessee. In the Arkansas case, the $220,000, if granted, would be divided between Ropes & Gray and the other members of the legal team in the Pavan case, including the National Center for Lesbian Rights and Arkansas lawyer Cheryl Maples.

The petition in Pavan is posted below:

 

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