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After a hearing on Oct. 14 at which Pulaski County Circuit Judge Chris Piazza awarded attorneys Jack Wagoner III and Cheryl Maples $33,000 each for their work on the May 14 case in which Piazza ruled the state ban on same-sex marriage unconstitutional, Maples sat in her car on Spring Street in the shadow of the Pulaski County Courthouse, smoked a cigarette, and wept.
"I thought it was worth more than that," she said. "So I'm disappointed. I could have done better at McDonald's, slinging hamburgers, for less than $15,000 a year." She noted the award was the lowest she knew of in the nation for an attorney who fought for same-sex marriage. She called the award "a slap in the face."
Maples had asked the court for $256,060 in attorney fees and $3,243 in costs for her work, and had argued that the meritorious nature of the case entitled attorneys to have their fees multiplied by one-and-a-half to two times. A separate request by Wagoner had asked for $95,000. Attorneys for the state had objected, calling the amounts "outrageously excessive and unreasonable."
In a brief expressing opposition, Assistant Attorney General Colin Jorgensen wrote: "This case lasted less than a year from the filing of the original complaint until a final order was entered by the Court. There was no discovery in this case. There were no disputed facts. There was no trial. The case required only pleading preparation and oral argument at two hearings. For the reasons explained in this response, the fee requests submitted by the Plaintiffs' attorneys should be denied." Wagoner later told the Arkansas Times that he agreed with much of Jorgensen's filing relative to Maples' fee request.
Piazza appears to have agreed as well. He allowed for no testimony on the issue at last week's hearing, calling the amount requested "exorbitant" before awarding both Maples and Wagoner $30,000 in fees and $3,000 in costs. Wagoner rose to tell the court that he accepted, saying he didn't get into the case for the money. Maples, who had been brought into court in a wheelchair, as she was during many of her appearances in the case, did not speak.
Struggling at times to regain her composure after the hearing, Maples said she wasn't sure she had heard Piazza right until another attorney repeated the award amount he'd ordered. While the ruling can be appealed, Maples said, such an appeal would be difficult and unlikely to prevail. And it would cost even more of her time.
"I went through our savings," Maples said. "My husband is retired, and we lived off of our savings." Maples said taking up the case was a risk, but she felt that following the Supreme Court's June 2013 Windsor decision striking down sections of the federal Defense of Marriage Act, her clients would surely prevail in a challenge of the Arkansas ban on same-sex marriage. She represented over 40 clients, and said there were many hours for which she didn't bill. She said that an attorney can make $30,000 "in a nasty divorce case in six months or less."
"A lot of people benefited," Maples said. "But it really ended up costing me a lot."
In a statement emailed to the Times later that day, Wagoner said, "I'm grateful that I got paid for some of the work, pleased as I can be to have donated the time I did not get paid for, and grateful and privileged to have had the opportunity to play a role in the advancement of human rights."
Friends of Maples have set up a fundraising drive on the crowdfunding site Indiegogo.com for Maples. At press time, just under $3,500 had been collected toward a goal of $10,000.
Asked whether she thought the amount awarded in the case might have a chilling effect on the willingness of lawyers to take up civil rights cases, and LGBT rights cases in particular, ACLU of Arkansas staff attorney Holly Dickson avoided commenting directly on the amount awarded to Wagoner and Maples, but did say civil rights law rarely results in large awards for attorneys.
"I don't know of any lawyers who have gotten wealthy from taking civil rights work, to put it mildly," she said. "Break-even is often best-case scenario in these cases. They are just such a heavy lift in terms of time and expense. It's very difficult to receive a fair fee and cost award on them. They're beasts."
Dickson said 70 percent of civil rights and employment discrimination cases are dismissed at the summary judgment stage. She called civil rights litigation "a very tricky area of the law" that can often be labor intensive for an attorney. For example, Dickson said that in cases of alleged abuse by police, the shield of qualified immunity afforded to law enforcement allows officers, even before the first court date, to appeal a ruling that they stand trial. In prisoner rights cases, Dickson said, what she called "the so-called federal Prison Litigation Reform Act" of 1996 limits fee recovery to 150 percent of what the inmate recovers in the case. Inmates are sometimes awarded as little as a dollar, even when they prevail in court, which means the inmate's attorney wouldn't even make enough to buy a fountain drink on the way home from the courthouse. Hourly rates aren't as high in civil rights law, Dickson said, even though the cases are complex.
"A lot of times, the victims of a rights violation are not in the position to pay fees or costs," Dickson said. "A lot of times you see the lawyers take those costs on. They've got to keep the doors open and the office going while they're investing time and money into the case."
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