October 1, 2015
A recent NLJ story, “Texas Wants Supreme Court to Strike Legal Fee Award in Voting Case,” reports that Texas wants that U.S. Supreme Court to review an order that forces the state to pay more than $1 million in attorney fees to groups that challenged the state’s redistricting plans.
The U.S. Court of Appeals for the D.C. Circuit in August ordered Texas to pay the fees, finding lawyers for the state forfeited the issue by failing to make substantive arguments in the lower court. The Texas Solicitor General Scott Keller said in court papers that the state planned to appeal to the U.S. Supreme Court.
In the meantime, the state is fighting efforts by the redistricting challengers to collect nearly $200,000 for their work on the fee issue in the D.C. Circuit. In papers filed this week, Keller argued that awarding any new fees “imposes an unconstitutional cost on the state.”
Texas argued that the D.C. Circuit and the lower court judge, U.S. District Judge Rosemary Collyer, were wrong to find that the challengers—representing Texas voters, state lawmakers and the Texas Conference of NAACP Branches—were the winning parties in the redistricting case. The challengers did not win, Keller wrote, because the Supreme Court in its 2013 Shelby County decision invalidated the section of the Voting Rights Act that acquired Texas to get approval for its redistricting plan in the first place.
“A party cannot be a prevailing party when the statutory basis for its purported victory is nullified as unconstitutional by the Supreme Court while the case is on appeal,” Keller wrote.
The challengers, in court papers filed in August asking for $196,294 in fees, said they took a number of steps to reduce their costs. They cut the number of hours spent working on the appeal by 13 percent, including time spent by lawyers other than Paul Smith of Jenner & Block, who argued for the challengers before the D.C. Circuit. The three sets of challengers were each represented by their own lawyers, but said they chose Jenner to take the lead as a cost-saving measure.
“Despite Texas’s tactical decision that increased the scope of the appellate proceedings, intervenors exercised reasonable discretion to limit the amount of fees incurred in this appeal,” the challengers’ lawyers wrote. Smith claimed the highest hourly rate, charging between $1100 and $1150. Hourly rates for the rest of the lawyers from Jenner & Block, Perkins Coie and other firms ranged from $150 to $735, charged by Marc Elias, chairman of Perkins Coie’s political law practice.
Keller countered that if the challengers were entitled to fees, the D.C. Circuit should cut the amount they request in half. The state argued that Jenner & Block and Perkins Coie failed to justify their “excessive” rates, and asked the court to use rates based on the U.S. DOJ Attorneys’ Office’s Laffey Matrix. Under that fee model, Smith, the most experienced lawyer from the Jenner team, would earn only $520 per hour. Keller also asked the D.C. Circuit not to rule on the fee issue until the Supreme Court decides whether to hear the case.