Bevin gets task of paying gay marriage lawyers

A staunch opponent of gay marriage, Matt Bevin once warned it could lead to the legalization of marriage between parents and children.

But now, as governor, he faces what must be an unpleasant task for him: Settling up with the lawyers who won the historic Supreme Court ruling last June setting aside bans against gay marriage in Kentucky and across the land.

The nine-lawyer team is seeking $2,091,297, including a 75 percent enhancement for what they said was groundbreaking work on a novel and unpopular case.

And under federal law, the governor has no choice but to pay them. To ensure “effective access to the judicial process” for “persons with civil rights grievances,” the losing side must pay the winner’s legal fees in an amount the courts decide is reasonable.

The day after the election, Beshear offered to settle with the plaintiffs’ lawyers for $581,000 – barely more than one-fourth of what they were seeking. They rejected the proposed deal, which attorney Laura Landenwich called “infuriating.”

“His public stance was that 'we need the Supreme Court to decide this,” she said of Beshear, who defended Kentucky’s gay marriage ban when then-Attorney General Jack Conway refused to do so, predicting, correctly, that it would be found unconstitutional. Beshear “knew very well the state would have to pay for that venture.”

Bevin could wait for Senior U.S. District Judge Charles R. Simpson III to decide what constitutes a reasonable fee. But the plaintiffs’ lawyers could appeal that amount, and usually the parties settle.

In Ohio and Michigan, for example, whose gay marriage bans were struck down with Kentucky’s, the Republican governors in those two states settled with the winning lawyers, for $1.3 million and $1.9 million, respectively.

In Tennessee, which had a case that was argued with Kentucky’s, lead counsel Abby Rubenfeld said her team is in negotiations with the state attorney general. The lawyers there have asked for $2.3 million.

Bevin spokeswoman Jessica Ditto and his general counsel, M. Stephen Pitt, did not immediately respond to requests for comment.

Before he left office, Beshear acknowledged in a statement that he law requires that the state pay the plaintiffs’ reasonable attorney’s fees. But he said, “The key word here is 'reasonable.’ "

The law firm he hired (and paid $195,400 through June) has said in court papers that the plaintiffs’ fee request is anything but.

Beshear’s lawyers said the total is inflated by overstaffing and duplication, and that none of the nine lawyers even argued the case at the Supreme Court.

They also contend it includes unreasonable charges for doing media interviews and for flying to California to consult with a Stanford University law professor.

Beshear’s lawyers also disputed that the work was novel, saying most of the arguments already had been briefed in other cases.

The plaintiffs’ lawyers are seeking $1,125,929 in fees and the rest in an enhancement that is allowed under the law for extraordinary results. The lawyers include five from Louisville: Landenwich, Daniel Canon, L. Joe Dunman, Shannon Fauver and Dawn Elliott.

Defending their request, including for the bonus, the lawyer says they ran a "streamlined, surgical campaign from the outset" and litigated "only what was necessary."

They say the issues in the case were "exceedingly novel and complex," and that in taking on an unpopular cause in the state, they subjected their future practices to risk, especially in rural areas where the Supreme Court decision is unpopular.

“Defendant … cannot downplay the role of this case in the lives of the families it has affected, nor its role in American history,” Landenwich wrote. “It would have been wholly irresponsible for any attorney, even a Supreme Court specialist, to go it alone.

“It was important to do it right,” she said. “And we did, with the help of dozens of lawyers. We seek compensation for only nine of them.”

Defending the proposed enhancement, the plaintiffs' lawyers said they achieved “a superior, national result by securing legal equality for all married same-sex couples and their children in the United States, including families which do not yet exist.”

In an interview, Landenwich said the lawyers’ practices all “took a hit” during the protracted litigation and they would like to be paid sooner rather than later.

The lawyers represented four same-sex couples who were married in other states but whose marriages were not recognized in Kentucky, as well as two couples who unsuccessfully tried to marry in Kentucky. They won in U.S. District Court, but those rulings were reversed by the 6th U.S. Circuit Court of Appeals, setting the stage for the June 26 Supreme Court ruling that the Constitution guarantees a right to same-sex marriage.

“Gov. Beshear wanted to fight and he got a fight,” Landenwich said. “Now they have to pay for it.”

Reporter Andrew Wolfson can be reached at (502) 582-7189 or awolfson@courier-journal.com