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Lead Lawyers Who Overturned IM24 Seek $300/Hour; Total Bill to Taxpayers: $118K

How much will Mark Mickelson’s folly, Initiated Measure 24, cost you, the taxpayers of South Dakota, now that Judge Charles Kornmann has declared its obvious and scamiferous unconstitutionality? If all the lawyers have their way, $118,184.30.

Last month, my attorney, Jim Leach of Rapid City filed a motion saying that he did $31,279.30 of work to overturn South Dakota’s violation of free speech, equal protection, and the Dormant Commerce Clause. Leach doesn’t just get to submit his log and receipts and say, “Pay me.” He has to justify his charges to the court. Leach thus summarizes his qualifications and his 43 years of lawyering to the court:

1. I believe that modesty is a virtue, and pride is a sin. So I am uncomfortable asserting my own abilities and qualifications. But I need to give the Court the information it needs to determine whether the fee I request is reasonable. So I provide the information below.

2. I graduated from Washington University School of Law in December, 1975. I was admitted to the Washington State bar by examination in 1976, to the California bar by examination in 1977, and to the South Dakota bar by examination in 1979. I have been admitted to practice in numerous federal courts. I began practicing law in 1976, and have done so continuously since then, except for one six- month sabbatical. Since 1977 I have been in private practice. I have never been a transactional lawyer. My practice has always been litigation.

…8. I was appointed by the South Dakota Supreme Court to serve on the South Dakota Board of Bar Examiners for four three-year terms, the last two as Chair. My service concluded on December 31, 2008, when I voluntarily resigned because I felt I had held the position for long enough.

9. In 2010, I was named Trial Lawyer of the Year by the South Dakota Trial Lawyers Association.

…11. I was appointed by Chief Judge Jeffrey L. Viken and served as Chair of the United States District Court Merit Selection Committee for selection of a part- time United States Magistrate Judge.

…13. In May, 2016, the Eighth Circuit Court of Appeals made me the third South Dakota recipient of the Richard S. Arnold Award for Distinguished Service and Lifetime Achievement. Every two years, the Eighth Circuit presents an Arnold Award to one attorney from each of the ten districts that make up the Eighth Circuit. The judges for each district nominate an attorney who “best represents the qualities of Judge Richard S. Arnold, including: achieving professional excellence; serving as a leader in the legal community; contributing significant work toward volunteer legal services; being honored by his or her peers; and serving as a mentor or role model for other lawyers.” I consider this a great honor and continue to hope that I was worthy of it. [This award shows my attorney is as good at his job as Randy Seiler, which is darned impressive.]

14. In June, 2018, the South Dakota Trial Lawyers Association gave me a “Toast of the Trial Lawyers” award for my pro bono work helping a young public defender represent an innocent man accused of murder who was tried and acquitted.

…18. My standard hourly rate is $300. The vast majority of my work is contingent fee. I do a large amount of pro bono work [Jim Leach, Declaration in Support of Motion for Attorney’s Fees and Costs, SD Voice v. Noem, filed 2019.05.16].

Leach shows court precedent and inflation calculations demonstrating that $300 an hour is a bit lower than what he could justify asking for. He also spares the state some expense with his “billing judgment”:

24. My time and expense records are attached as Exhibit 4. I prepared my time records at the same time that I performed the services shown. In maintaining these records, I used “billing judgment,” as recommended by Hensley v. Eckerhart, 461 U.S. 424, 434 (1984). For example, my drives to and from Aberdeen actually took eight hours, because I had to stop for a nap in each direction, but I billed only seven hours so as not to bill for these naps, even though they were necessary for safe travel.

…26. …I bill electronic legal research at its actual cost to me, with no markup. I bill copies at 10 cents per page, not 25 cents per page as most firms in West River bill them, because I believe 10 cents is closer to the actual cost [Leach, 2019.05.16].

Meanwhile, Marty Jackley, Sara Frankenstein, and Ryan Morrison, the legal team that followed Jim and me into court to represent the Koch Brothers, South Dakota’s corporate media and business interests, and SD ex-pat Thomas Barnett, seek $86,905 from the taxpayers for their exertions. Point man Jackley says his legal efforts, like Leach’s, should cost the state $300:

6. My experience in handling matters of this nature has been derived from serving as a federal law clerk for the Honorable Richard H. Bailey, then Chief Judge for the District of South Dakota, from 1995–1997; an associate of the law firm of Gunderson, Palmer, Nelson & Ashmore from 1997–2001;a partner at the law firm of Gunderson, Palmer, Nelson & Ashmore from 2001–2006; United States Attorney for South Dakota from 2006–2009; Attorney General for South Dakota from 2009–2019, and presently a partner at the law firm of Gunderson, Palmer, Nelson & Ashmore handling complex and challenging litigation.

7. I have significantly reduced my hourly rate to $300 per hour in this case. The hourly rate is consistent with the hourly rate approved by the court for former United States Attorney Brendan Johnson in the Libertarian Party of South Dakota, et al. v. Krebs, et al., Civ. 15-4111 (D.S.D. 2018) [Marty Jackley, Affidavit in Support of Attorneys Fees and Expenses, SDNA et al. v. Barnett, 2019.06.06].

My attorney has been lawyering in private practice since 1977, and he charges $300 an hour. Marty Jackley took up the law professionally twenty years later, and $300 is a significant reduction from what he apparently thinks his time is usually worth.

Jackley’s teammates Sara Frankenstein and Ryan Morrison are asking for $250 an hour.

The state’s counsel, Assistant Attorney General Stacy Hegge, has filed a brief saying that my experienced and successful counsel deserves only $175 to $210 an hour. I look forward to hearing AAG Hegge’s indictment of her former boss’s legal cred and claimed hourly rate.


  1. leslie 2019-06-10 10:23

    Funny. Well done Cory. Tally up total time by all, including the court, press, public attention wasted by bogus right wing tactics forcing unnecessary legal action. SO RIGHT WING CAN HOLD ON TO POWER.

  2. leslie 2019-06-10 10:25

    Trumpism. The word that fits ALL Republicans

  3. grudznick 2019-06-10 16:33

    Lawyers sure live the good life.

  4. Cory Allen Heidelberger Post author | 2019-06-10 19:06

    I know, Grudz—offering to work pro bono, gambling on his ability to work hard, study cases both familiar and arcane, keep his witnesses in line, make the right arguments to sometimes unpredictable judges, and then withstand the arguments of the state itself that his work is worth far less than the litigative machinations of SDGOP cronies—sounds like the good life to me!

    But seriously, making one’s living fighting for everyone’s Constitutional rights against an overreaching government is one of the best lives I can imagine.

  5. grudznick 2019-06-10 19:23

    That $300 an hour rate, at your discount price, makes it even more swell. I’m just sayin…

    Plus, don’t forget, these fellows hire out to whoever pays them. Mr. Jackley goes one way for the glory, then the next way for the cash. It’s all about who the paying client is. Don’t get grudznick wrong, I am not faulting these two at all. I admire their work and they deserve every bit of their earnings, the cash for which they worked hard.

  6. Donald Pay 2019-06-10 21:38

    Well, yeah, any lawyer who wanted a payday should have filed on this one. That’s what I assume Jackley did. But Mr. Leach was fighting for a cause, even if I think the cause is a little suspect. He is a fantastic attorney, who deserves this payout, but let’s admit that this was a layup after a stolen inbounds pass, not a three point shot from half court in the face a 3-person trap. It took some effort to research the voluminous cases lined up on your side of the issue, but the trip to Aberdeen was probably the most work anyone had to do.

  7. leslie 2019-06-11 00:55

    Don i am surprised. The last sentence is a bit naive. Forgive me.

    G however thinks he knows something about that which he speaks yet embarrassingly he does not. “Vicarious G.” I love it, especially later this summer….:)

  8. bearcreekbat 2019-06-11 01:05

    The comment “these fellows hire out to whoever pays them” is a common misconception based on false generalizations and negative misleading stereotypes about people who practice law.

    While there are some folks in any profession or business that will “hire out to whoever pays them,” for reasons of greed or necessity, lawyers like Leach have the ability to choose what causes and problems they dedicate their time to solving. The most common course of action I have seen Leach follow is to fight what he sincerely believes to be “the good fight.”

  9. bearcreekbat 2019-06-11 01:07

    And leslie is right – Don’s “last sentence is a bit naive.”

  10. Cory Allen Heidelberger Post author | 2019-06-13 17:19

    I can assure you that Jim Leach worked hard researching and writing the briefs for this case and structuring his questions for the May 3 hearing.

    But I can also say that, from the beginning, before Leach even lifted a law book on this matter, it was clear that IM 24 was flat-out unconstitutional. We just had to dig up the specific case references (no small task; lots of reading) to bulk up the case to pass muster in court, then properly read and rebut the spaghetti the state threw back at us. The drive to Aberdeen from Rapid City was no small part of the time and effort required.

  11. Cory Allen Heidelberger Post author | 2019-06-13 17:20

    I will also attest to BCB’s assessment of Leach’s motivation: he seeks the good fight, and saw this case, protecting our vital right of initiative and referendum, as a good fight.

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