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3:13-cv-00750 #75

3:13-cv-00750 #75

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Published by Equality Case Files
Doc 75 - Attorney General's response to Plaintiffs' motion for attorney fees and costs
Doc 75 - Attorney General's response to Plaintiffs' motion for attorney fees and costs

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Published by: Equality Case Files on Apr 06, 2014
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07/09/2014

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1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION GREGORY BOURKE,
et al. ) ) Plaintiffs ) ) v. ) CASE No. 3:13-CV-750 (JGH)
 
)
 Electronically filed
STEVE BESHEAR,
et al. ) ) ) Defendants )
JACK CONWAY, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF
KENTUCKY’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES
AND COSTS
Defendant Jack Conway, in his official capacity as Attorney General of Kentucky
(“Attorney General”), hereby submits his Response to Plaintiff’s Motion for Attorneys’ Fees and
Costs:
Plaintiffs seek an award of attorneys’ fees
as prevailing parties pursuant to 42 U.S.C. §§ 1983 and 1988 in the amount of $66,235.00 and $453.00 in costs. Because this Court retains
 jurisdiction over any award of attorneys’ fees, Plaintiffs’
 Motion should be held in abeyance  pending appellate review of this matter, which was appealed by Governor Beshear to the Sixth Circuit Court of Appeals. Such an abeyance would avoid potentially repetitive litigation, thus
 preserving judicial economy. Further, any fees associated with the Plaintiffs’ attorneys’ media
interactions and strategy should be denied. Also,
any attorneys’ fees associated with the
 Love, et al. v. Beshear
case should be denied, as that case has not been finally adjudicated and the Attorney General has been dismissed from the case.
Case 3:13-cv-00750-JGH Document 75 Filed 04/04/14 Page 1 of 5 PageID #: 1045
 
2
ARGUMENT
During the course of litigation in
 Bourke, et al. v. Beshear 
, the Attorney General defended the relevant statutes and constitutional provisions as duty-bound under the Kentucky Constitution and his obligations under Kentucky law.
Y
.
 
C
ONST
.
§ 228 provides that “all
officers . . . shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth
.” In defending
Y
.
 
C
ONST
. § 233A, the Attorney General was performing his sworn duty to defend the Kentucky Constitution. The Attorney General was similarly fulfilling his duties under Kentucky law in defending the challenged statutes. KRS 15.020 provides that
The Attorney General . . . shall . . . attend to all litigation and legal business in or out of the state
required of him by law, or in which the Commonwealth has an interest . . . .” KRS 418.070(1)  provides that “in any proceeding which involves the validity of a statute, the Attorney General of
the state shall, before judgment is entered, be served with a copy of the petition, and shall be
entitled to be heard . . . .” However, following this Court’s ruling, striking down the relevant
statutes and constitutional provisions under the Equal Protection Clause of the U.S. Constitution in its February 27, 2014 order [Doc. No. 55], the Attorney General announced that he will no longer defend those statutes and provisions. Because no controversy remained between the Attorney General and the Plaintiffs, he was dismissed from the
 Love, et al. v. Beshear
case. [Doc. No. 73]. In order to protect the finances of the Commonwealth of Kentucky, the Attorney General
must object to the Plaintiffs’ Motion for Attorneys’ Fees, for which this Court has clear
 jurisdiction and discretion. 42 U.S.C. § 1988(b)
 provides that “
the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs
. . . .” “
Section 1988
Case 3:13-cv-00750-JGH Document 75 Filed 04/04/14 Page 2 of 5 PageID #: 1046
 
3  places the award of reasonable attorney fees within the discretion of the court.
 Hadix v.  Johnson
, 65 F.3d 532 (6th Cir. 1995).
However, motions for attorneys’ fees are commonly
stayed when the underlying action is appealed, to promote judicial economy.
See
Fed.R.Civ.P.
54(d), Advisory Committee's Note (1993 amendments) (“If an appeal on the merits
 of the case is taken, the [district] court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for
filing after the appeal has been resolved.”);
 see also Tancredi v. Metropolitan Life Ins. Co.
, 378 F.3d 220, 225
 – 
26 (2d Cir.2004);
 see also Michigan Bldg. & Const. Trades Council, AFL-CIO v. Snyder,
11-13520, 2012 WL 1893516 at *2 (E.D. Mich. May 23, 2012). While the Attorney General is not appeali
ng the instant case, it appears that Plaintiffs’ Motion for Attorneys’ Fees would be moot if the Governor, who is appealing, were
 successful on appeal in a higher court
. As such, and considering this Court’s continuing jurisdiction over the
issue of attor 
neys’ fees, holding the Motion in abeyance would avoid the potential problem of recovery of awarded attorneys’ fees
, without prejudicing the Plaintiffs.
Were the Court not inclined to hold the Plaintiffs’ Motion for Attorneys’ Fees in
abeyance, the fees s
ubmitted by Plaintiffs’ counsel should be reduced for time associated with
media interaction and strategy. Dan Canon, for example, submitted bills of 21 hours for media-related work. [Doc. No. 60-3]. It is axiomatic that litigation goals are achieved in court and
attorneys’ fees should not be obtained for media appearances.
See Gratz v.
Bollinger, 353 F. Supp. 2d 929 (E.D. Mich. 2005). Furthermore, Mr. Canon has claimed 10.3 hours for time spent working on the
 Love v. Beshear
case, which is not final. Because Plaintiffs have not prevailed in
that case, and the Attorney General has been dismissed from the case, such attorneys’ fees
cannot be obtained against him.
Case 3:13-cv-00750-JGH Document 75 Filed 04/04/14 Page 3 of 5 PageID #: 1047

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