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Case 2:14-cv-00200-SWS Document 76 Filed 03/20/15 Page 1 of 6

Mark T. Voss, Wyo. St. Bar No. 6-2897


Bernard P. Haggerty, Wyo. St. Bar No. 6-2679
Laramie County Attorneys Office
310 West 19th Street, Suite 320
Cheyenne, WY 82001
Phone: 307-633-4370
Fax: 307-633-4329 (fax)
Email: mvoss@laramiecounty.com
bernardh@laramiecounty.com
Attorneys for Defendant
Debra K. Lathrop, Laramie County Clerk

UNITED STATES DISTRICT COURT


DISTRICT OF WYOMING
Anne Marie Guzzo and Bonnie Robinson;
Ivan Williams and Charles Killion;
Brie Barth and Shelly Montgomery;
Carl Oleson and Rob Johnston;
and Wyoming Equality,
Plaintiffs,
v.
Matthew H. Mead, in his official capacity
as the Governor of Wyoming; Dean Fausset, in his official
capacity as Director of the Wyoming Department of
Administration and Information; Dave Urquidez, in his
official capacity as Administrator of the State of Wyoming
Human Resources Division; and Debra K. Lathrop, in her
official capacity as Laramie County Clerk,
Defendants,

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______________________________________________________________________________
REPLY TO STATE DEFENDANTS
OPPOSITION TO THE PLAINTIFFS MOTION FOR ATTORNEYS FEES AND
COSTS
______________________________________________________________________________
I. Introduction
In their Motion for Attorneys Fees and Costs, the Plaintiffs, request that the Court order
Defendants Mead, Fausset, and Urquidez to pay their attorney fees. [Doc. 69, at 2]. The
Plaintiffs Memorandum explains, in contrast to Defendant [Clerk], who cooperated with

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Plaintiffs and assisted the minimization of fees incurred, the State Defendants unnecessarily
prolonged this case and should have to pay the Plaintiffs fees and costs as a result. [Doc. 70, at
9-10]. The Defendant Clerk did not oppose the Plaintiffs Motion. [Doc. 70, at 12].
In their Opposition to the Plaintiffs Motion, the State Defendants claim the Plaintiffs
award of fees and costs, should be split evenly between the County and the State Defendants.
[Doc. 72, at 19]. They argue that, Most of the substantive work on the case was applicable
against both the Clerk and the State Defendants and that the claims were, evenly divided and
required joint work. [Doc. 72, at 16, 17]. The State Defendants appear to be moving for an
award of fees against the Defendant Clerk.
The Court should reject the States arguments. The Plaintiffs have properly chosen not to
seek an award of fees against the Defendant Clerk based on her cooperation. Practically no fees
or costs would have been required in a separate lawsuit against the Defendant Clerk alone. And,
the Clerk vigorously attempted to ameliorate the effects of the unconstitutional statute, beginning
in state Court months before this action was commenced.
II. The Court should not award fees or costs against the Defendant Clerk.
The Plaintiffs have not moved for an award of fees or costs against the Defendant
Clerk. See Local Rule 54.3(c) & (e) (requiring a Motion for any fee request). Because the
State Defendants do not claim to be prevailing parties, they lack any standing to request an
award of fees, and the Court should reject any suggestion that fees or costs should be awarded
against the Clerk. The Plaintiffs properly chose not to seek an award against the Defendant
Clerk because she cooperated during, and before, this litigation and helped minimized the
Plaintiffs fees. A prevailing party has a right to waive, settle, or negotiate its award of fees
under 42 U.S.C. 1988(b). Venegas v. Mitchell, 495 U.S. 82, at 88 (1990) (citation omitted).

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Because the conduct of the Defendant Clerk was consistent with the purposes of 1988(b)to
avoid or ameliorate violations of 42 U.S.C. 1983, the Court should defer to the Plaintiffs
assessment of the Clerks cooperation and assistance.
III. The Court should not reduce the award against the State Defendants.
The State Defendants do not cite any precedent for a split or divided award of fees
and costs against the Defendant Clerk in a case like this. [See Doc. 72, at 16-17]. Where a
plaintiff prevails on some, but not all, claims, the Supreme Court has articulated a separate
lawsuits analysis. See Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983) (citation omitted). In
such an analysis, courts examine what the results would have been if the claims, had been raised
in separate lawsuits. See id., at 435. A similar analysis should apply to a combination of
contested and uncontested claims.
Here the Clerk did not contest the relief sought by the Plaintiffseither in this Court or
in the preceding state court cases. The Clerk filed an Affidavit in support of the Plaintiffs
Motion for Preliminary Injunction. [Doc. 7, Exhibit 1]. She was the only witness to testify at the
preliminary injunction hearing, and she did not oppose the relief sought. [Doc. 72, Exhibit C, at
29-32]. Only the State Defendants contested the relief sought by the Plaintiffs. If the Plaintiffs
marriage licensing claims had been brought in a separate lawsuit against the Clerk only, the
Plaintiffs would have incurred practically no fees or costs. No hearing or briefing on either
preliminary or permanent relief would have been required, because the Clerk did not oppose the
relief sought against her. Therefore, applying the separate lawsuits analysis, the entirety of the
Plaintiffs fees and costs should be attributed to the lawsuit against the State Defendants.
As an alternative to a separate lawsuits analysis, the Court may consider a sequential
inquiry or chronological analysis to determine whether the Clerks actions caused or

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necessitated the Plaintiffs fees and costs. See Hughes v. Lipscher, 852 F. Supp. 293, 305 n.20
(D.N.J. 1994) (noting defendants did not take any steps to alter or ameliorate their challenged
policies until after suit was filed). Here, the Defendant Clerk took multiple and vigorous steps
to alter or ameliorate the effects of the challenged statute both before, and during, the litigation
in this Court.
First, but for the involvement of the State Defendants, litigation against the Defendant
Clerk in this Court would have been unnecessary. The proceedings in the two separate state
court actions are indexed in the attachments to the Defendant Clerks Response to the Motion for
Preliminary Injunction. [Doc. 16, Exhibit 1]. As of July 10, 2014, three months before the
Plaintiffs commenced their action in this Court, the Defendant Clerk and the Plaintiffs had
completed their summary judgment briefing and were prepared for a final judgment in state
court.

The Clerk expressly joined the Plaintiffs demand for a declaratory judgment and

injunction delineating her marriage licensing duties. [Doc. 16, Exhibit 3, at 2, 30]. The State
Defendants, however, obtained a continuance, successfully delaying a final judgment on the
Plaintiffs uncontested claims against the Clerk. [Doc. 16, Exhibit 1, Index to Courage, et al., at
page 1 of 3].
Second, in addition to the Plaintiffs case against the Clerk in state court, the Clerk
brought her own state court action seeking to define her marriage licensing duties. [Doc. 16,
Exhibit 1, Index to Lathrop]. This action was brought immediately upon receipt of the Plaintiffs
first license applications, even before the Plaintiffs state court case. The Clerk agreed to stay
her action only at the Plaintiffs request. [Doc. 7, Exhibit 1, Affidavit in Support of Motion for
Temporary Restraining Order, dated October 7, 2014, at 1, 1-2].

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Third, in the two state court cases the Clerk sought the same relief as the Plaintiffsand
the same relief sought by the Plaintiffs in their Claims against the Clerk in this Courta
declaratory judgment and an injunction defining her marriage licensing duties. Moreover, on
three separate occasions, once in a Joint Motion with the Plaintiffs, the Clerk sought the same
temporary injunctive relief that the Plaintiffs ultimately obtained in this Court [see Doc. 16,
Exhibit 1, Index to Courage, et al. & Index to Lathrop, & Exhibit 2].
Short of violating her oath of office, the Defendant Clerk took immediate and continuous
steps to obtain court orders consistent with the relief sought by the Plaintiffs. Aside from
expressing a preference for a decision in state court [Doc. 16, at 1-2], the Clerk did nothing to
contest or oppose the relief sought by the Plaintiffs.
Regardless of which approach the Court applies, the actions of the Defendant Clerk
necessitated practically none of the Plaintiffs attorney fees or costs in this action. But for the
involvement of the State Defendants, the claims against the Clerk would have been resolved
either in state court or in this Court by stipulation or consent.
IV. Conclusion.
The Court should reject the States arguments for assigning or apportioning any part of
the fees and costs to the Defendant Clerk.
RESPECTFULLY SUBMITTED this 20th day of March, 2015.

By: /s/ Mark T. Voss


/s/ Bernard P. Haggerty________________________
Attorneys for the Defendant Clerk
Laramie County Attorneys Office
310 W. 19th Street, Suite 320
Cheyenne, WY 82001
(307) 633-4370
(307) 633-4329 fax

Case 2:14-cv-00200-SWS Document 76 Filed 03/20/15 Page 6 of 6

I, Bernard P. Haggerty, Deputy Laramie County Attorney, certify that on this 20th day of
March, 2015, I electronically filed the foregoing with the CM/ECF system which sent notice to
the following:
Tracy Zubrod
zubrod@aol.com

Thomas W. Stoever, Jr.


thomas.stoever@aporter.com

Qusair Mohamedbhai
qm@rmlawyers.com

Shannon P. Minter
Christopher F. Stoll
sminter@nclrights.org

Mark T. Voss
mvoss@laramiecounty.com

Bernard P. Haggerty
bernardh@laramiecounty.com

/s/Bernard P. Haggerty___________
Bernard P. Haggerty

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