BY DARA KAM
THE NEWS SERVICE OF FLORIDA
TALLAHASSEE – Lawyers representing plaintiffs who successfully challenged Florida’s ban on same-sex marriage are entitled to collect legal fees from the state, a federal judge has ruled.
U.S. District Judge Robert Hinkle’s order on April 15 came several months after Attorney General Pam Bondi first balked at having the state pay more than $500,000 in fees for lawyers representing same-sex couples.
Late last month – more than a year after same-sex marriages began in Florida – Hinkle issued a final judgment declaring that the state’s voter-approved prohibition against gay marriage is unconstitutional.
ACLU challenge too
Jim Brenner and his partner Chuck Jones, a Tallahassee couple who have been together for nearly three decades and were married in Canada, filed the initial lawsuit against the state challenging the gay marriage prohibition.
Brenner and Jones later asked Stephen Schlairat and Ozzie Russ, a gay Washington County couple, to join the lawsuit. The American Civil Liberties Union (ACLU) also filed a challenge on behalf of eight couples and other plaintiffs, and the cases were consolidated.
In August 2014, Hinkle ruled that the state’s prohibition against gay marriage was unconstitutional, but he put a stay on his decision until January 2015, when same-sex marriages became legal in Florida.
In the April 15 order, Hinkle wrote that both the ACLU of Florida and Jacksonville attorneys William Sheppard, Betsy White and Samuel Jacobson, who represented the Brenner plaintiffs, were entitled to legal fees.
“The plaintiffs prevailed in each of these consolidated actions,” Hinkle wrote, and are therefore entitled to fees.
‘History of resistance’
Hinkle also praised the state for agreeing that the plaintiffs’ lawyers are entitled to fees, a departure from the harsh words Hinkle had for state officials in his March 31 final judgment.
In that ruling, Hinkle chastised state officials for their reluctance in acknowledging that the Florida ban had been overturned and “for a history of resistance” in a variety of areas linked to gay marriage – including in the state’s handling of birth certificates for children of same-sex couples.
“We respect the judge’s order,” Bondi spokesman Whitney Ray said in an email when asked if the state intended to appeal Hinkle’s final judgment or Friday’s ruling regarding the fees.
But the legal wrangling may not be over. While the state has acknowledged that the lawyers are entitled to the fees, it is unknown if the state will argue over the amount.
Seeking fees, ‘multiplier’
Sheppard and his legal team are seeking at least $455,000 in fees, including a “multiplier” allowed in civil rights cases, according to documents filed last year.
“This is a victory for the American courts and democracy, in my opinion. That sounds hokey, but that’s how I count it in my belief system,” Sheppard, a longtime civil rights lawyer, said in a telephone interview Monday.
The ACLU has not disclosed its legal tab, but praised Hinkle’s decision.
“We are grateful for Judge Hinkle’s order recognizing the work our legal team did in arguing that Floridians have a right to marry the person they love and that denying them that right was unconstitutional,” ACLU of Florida spokesman Baylor Johnson said in an email.
The battle over the legal fees started last summer, after the U.S. Supreme Court ruled in June that same-sex couples have a fundamental right to marry. The Supreme Court ruling came in a case involving other states, but it cemented Hinkle’s ruling that Florida’s ban was unconstitutional.
In August, Bondi asked the 11th U.S. Circuit Court of Appeals in Atlanta and Hinkle to dismiss the case as moot. A dismissal would have absolved the state from an obligation to pay the plaintiffs’ lawyers, Sheppard and his team wrote in a court filing last year.
Despite Hinkle’s final judgment in the Florida cases and the U.S. Supreme Court decision, same-sex couples’ right to wed may not be settled permanently, Sheppard said.
“I don’t think for a second that we won’t be encountering other issues in the good old state of Florida related to this issue, whether it be legislative or whether it be just conduct of individual government officials,” he said. “It’s not an accepted thing, just because the Supreme Court says it is, any more than integrated schools is accepted.”