State Says Jackley Doesn’t Deserve $86K for Beating IM 24 in “Tag-Along” Case

Today the state formally filed its opposition to Marty Jackley’s request for $86,905 in attorney fees for his and his colleagues’ labors on behalf of South Dakota’s newspapers, retailers, broadcasters, and Chamber of Commerce, as well as the Koch Brothers and SD ex-pat Thomas Barnett in helping my attorney Jim Leach beat Initiated Measure 24 in court.

Like my attorney, Jackley wants $300 an hour. The state’s response to this request opens identically to its response to my attorney’s request, claiming that the Ninth Circuit’s ruling that attorneys weren’t entitled to fees in a 1994 case (Thorsted v. Gregoire) that overturned a Washington initiative that attempted to impose term limits on members of Congress. In that case, the District Court in Washington said “special circumstances” made charging the state for defending a law passed by voters was unjust and unfair:

1. No award is needed to serve the purposes of [42 U.S.C.] Section 1988, which is to assure effective access to the judicial process. . . . The mere filing of a suit by anyone with standing would have assured a full court test.
2. No relief has been won under the [42 U.S.C.] Section 1983 claims beyond that already awarded under the constitutional claims.
3. The legislation that prompted the suit was adopted by a voters’ initiative, not by State officials. The deterrence purpose of Section 1983 . . . is inapplicable.
4. The defendant officials have not yet enforced [the initiated measure]. Their willingness to do so if it is upheld reflects only the minimum their oaths of office require.
5. The State officials have acted in good faith. . . .
6. This is a case of first impression in federal court, and the public interest requires that it be adjudicated through a full adversary process. The State defendants have done nothing to increase the litigation costs beyond what would have been necessary in any event.
7. There was no way for the State officials to settle the case by agreement. . . . State legislation is presumed constitutional until the contrary is shown [Thorsted v. Gregoire 1994, cited in Stacy Hegge, State’s Memorandum in Opposition to Plaintiffs’ Joint Motion for Attorneys Fees and Costs, SDNA et al. v. Barnett and Ravnsborg, Case 3:19-cv-03010-CBK, U.S. District Court of South Dakota, filed 2019.06.27].

I invite Jackley to borrow my attorney’s response: Thorsted “is not the law—even in the Ninth Circuit,” which “has sharply limited any precedential value the case might otherwise have there, by calling the Thorsted factors ‘largely unique to that case,’ and ‘in part, inadequate grounds for the denial of fees.'”

Jackley will not be able to borrow my attorney’s astute argumentation to respond to the state’s next contention against him, that he helped the newspapers and broadcasters and their big-money pals rush to court as a tag-along case to humble early mover me:

Markedly, this case was brought approximately one and a half months after SD Voice et al. v. Noem et al., Civ. 19-1003 (D.S.D. filed March 1, 2019) [hereinafter SD Voice], a separate lawsuit which effectively sought the same relief as Plaintiffs in this case. See SD Voice, Complaint, Doc. 1. Thus, “effective access to the judicial process” had already been secured at the time this case was filed on April 17, 2019. See generally Complaint, Doc. 1; Thorsted, 841 F. Supp. at 1084. Moreover, the State minimized the costs of litigation to the extent possible. In furtherance of this objective, the State filed a motion to stay this case, which, if granted, would have paused or eliminated the accrual of attorney’s fees in this case while SD Voice proceeded. See State’s Motion to Stay Proceeding, Doc. 13; State’s Memorandum in Support of Motion to Stay and Memorandum in Response to Plaintiffs’ Motion for Consolidation and Transfer, at 6, Doc. 14 [hereinafter “State’s Memorandum in Support of Motion to Stay”].

Another factor to consider when addressing Plaintiffs’ request for attorneys’ fees is that this lawsuit may be classified as a “tag-along” case. See In re Vitamin Cases, 2 Cal. Rptr. 3d 358, 368 n.9 (Cal. Ct. App. 2003) (indicating that “several federal courts have labeled possibly unnecessary and duplicative actions ‘tag-along actions’”). As portrayed by Plaintiffs, this case involves “nearly identical claims [filed] only a month apart against nearly identical defendants[,]” as compared to the earlier-filed SD Voice lawsuit. See Plaintiffs’ Memorandum in Support of Motion for Consolidation and Transfer, at 3, Doc. 9. And “[f]ederal case law raises the question whether it is appropriate at all to award attorney fees ‘in tag-along actions—representative lawsuits brought with different named plaintiffs which substantially track actions previously brought.’” In re Vitamin Cases, 2 Cal. Rptr. 3d at 367 (quoting Thayer v. Wells Fargo Bank, N.A., 112 Cal. Rptr. 2d 284 (Cal. Ct. App. 2001)) (emphasis in original). Considering these factors and the factors identified in Thorsted, a downward adjustment of attorney’s fees is appropriate [State’s Memorandum, 2019.06.27].

Notice that Hegge pulls her punches on her old boss: both Thorsted and the tag-along arguments could justify denying Team Jackley any fees, but Hegge only asks for a “downward adjustment.” (Hegge is just as gentle with my attorney, arguing only for “limiting” the reward the court says is due.)

Hegge does not pull punches on the hours claimed. The state notes that Team Jackley claims 309.3 hours compared to my attorney’s 100.3 hours and calls Jackley’s claim “excessive.” For example, the state says, Leach was able to launch SD Voice’s case with 14.7 hours of work before first filing. Team Jackley “claimed a total of 153.2 hours on or before April 17, 2019, the date they filed their complaint.”

But hey, is it fair to punish the slow kids for needing more time to do their homework?

The state also says Team Jackley deserves no fees for the 28 hours they spent on their motion to consolidate and transfer their case to the SD Voice courtroom, because (1) they wouldn’t have needed to move to transfer their case if they had filed in the Northern Division with me instead of in the Central Division, and (2) they did not prevail in their consolidation motion, and only prevailers get attorney’s fees.

The court will rely on rigorous legal precedent to decide this question, but if I may appeal to a sports analogy, the Patriots got Super Bowl rings for prevailing in this year’s Super Bowl; they did not get smaller rings for failing to stop the Rams’ third-quarter field goal.

The state further argues that Team Jackley wasted time talking with Leach about our counterpart case. “As indicated above, this case was never consolidated with SD Voice and there is no indication that the time dedicated by Plaintiffs to SD Voice was necessary or fruitful in advancing Plaintiffs’ case.” Again, Team Jackley may effectively copy Jim Leach’s response:

The last services the State complains about is a small amount of time that plaintiffs’ attorney spent communicating with the attorneys in the companion case, South Dakota Newspaper Association v. Barnett. Because the case raised the same issues, because it was pending at the same time, before the same Court, and because the cases were heard together, plaintiffs’ attorney in this case had to know what was going on in South Dakota Newspaper Association v. Barnett in order to competently represent his client. Otherwise he would have gone into the hearing completely blind as to what was going on in the other case, being tried at the same time, on the same issues. Surely the State took both cases into account in preparing its strategy and trying the case. Plaintiffs’ attorney was entitled to do likewise. Contrary to the State’s argument, plaintiffs’ attorney never worked on the South Dakota Newspaper Association v. Barnett case, and no time record suggests that he did so. The South Dakota Newspaper Association clients had their own attorneys [James Leach, Reply Memorandum in Support of Motion for Attorney’s Fees and Costs, SD Voice v. Noem et al., Case 1:19-cv-01003-CBK, U.S. District Court of South Dakota, filed 2019.06.14].

Team Jackley should get some time to respond to the state’s impugnment of their bill to the taxpayers, as did my attorney. Team Jackley may also wish to follow my attorney in adding the time necessary to reply to said impugnment of their legal accounting to the total claim against the state. In his June 14 filing, Leach tells the court that he has incurred another $2,010 in legal fees rebutting the state’s attempt to reduce its payout, and he’s adding that amount to the $31,279.30 already claimed.