Case 3:13-cv-00750-JGH Document 75 Filed 04/04/14 Page 1 of 5 PageID #: 1045

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION GREGORY BOURKE, et al. Plaintiffs v. STEVE BESHEAR, et al. ) ) ) ) ) ) ) ) ) )

CASE No. 3:13-CV-750 (JGH) Electronically filed

Defendants

JACK CONWAY, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF KENTUCKYS RESPONSE TO PLAINTIFFS 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 Plaintiffs 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 2 of 5 PageID #: 1046

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. KY. CONST. 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 KY. CONST. 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 Courts 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 3 of 5 PageID #: 1047

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, 22526 (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 appealing 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 Courts continuing jurisdiction over the issue of attorneys 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 submitted by Plaintiffs counsel should be reduced for time associated with media interaction and strategy. Dan Canon, for example, submitted bills of 21 hours for mediarelated 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 4 of 5 PageID #: 1048

CONCLUSION For the reasons argued above, this Court should hold in abeyance Plaintiffs Motion for Attorneys Fees. At minimum, the requested attorneys fees of Plaintiffs should be reduced by those hours spent in media interactions or work for Love, et al. v. Beshear.

Respectfully submitted, JACK CONWAY ATTORNEY GENERAL /s/ Brian Judy Clay Barkley Brian Judy Assistant Attorneys General Office of the Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601 clay.barkley@ag.ky.gov (502) 696-5300 COUNSEL FOR THE ATTORNEY GENERAL

Case 3:13-cv-00750-JGH Document 75 Filed 04/04/14 Page 5 of 5 PageID #: 1049

CERTIFICATE OF SERVICE AND NOTICE OF ELECTRONIC FILING I hereby certify that on April 4th, 2014, the foregoing was filed with the clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all parties. /s/ Brian Judy Brian T. Judy Assistant Attorney General

Case 3:13-cv-00750-JGH Document 75-1 Filed 04/04/14 Page 1 of 1 PageID #: 1050

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION GREGORY BOURKE, et al. Plaintiffs v. STEVE BESHEAR, et al. ) ) ) ) ) ) ) ) ) )

CASE No. 3:13-CV-750 (JGH) Electronically filed

Defendants

PROPOSED ORDER This matter having come before the Court on the Plaintiffs Motion for Attorneys Fees and Costs, and the court being sufficiently advised, it is ordered that the Plaintiffs Motion for Attorneys Fees and Costs is DENIED.