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Libertarian Party of South Dakota v. Krebs

United States District Court, D. South Dakota, Southern Division

October 2, 2018

SHANTEL KREBS, et al., Defendants.


          Lawrence L. Piersol, United States District Judge

         Upon prevailing in an action under 42 U.S.C. § 1983 to enforce rights guaranteed under the First and Fourteenth Amendments to the United States Constitution, Plaintiffs seek attorney fees and expenses. Defendants ask for a downward adjustment to the amount of fees requested by Plaintiffs. For the following reasons, the Plaintiffs' Motion is granted in part and denied in part.


         This case involved constitutional challenges to South Dakota's deadline requiring new or newly-qualifying political parties seeking to organize and participate in South Dakota elections to submit a written petition (containing a certain number of qualified signatures) to the Secretary of State in order to appear on the ballot. Plaintiffs argued that South Dakota's early deadlines requiring new or newly-qualifying political parties to organize and obtain signatures months before the major political parties selected their candidates and chose their platforms, and thus months before most voters were likely to be drawn to minor parties discriminated against those candidates and their supporters who wished to participate meaningfully in the electoral process. Plaintiffs sought declaratory and injunctive relief prohibiting the Defendants from enforcing the ballot-access deadlines.

         Defendants chose to defend rather than amend the South Dakota statutes. The parties litigated the case for almost three years through two motions for summary judgment filed by Defendants, and a two-day court trial. The Court ruled that the substantially burdensome ballot access provisions were not narrowly tailored to serve a compelling state interest, and thus the statutes violated the First Amendment right to vote and right to associate as applied to new political parties in South Dakota. See Libertarian Party of South Dakota v. Krebs, 290 F.Supp.3d 902 (D.S.D. 2018).


         Under the Voting Rights Act, 52U.S.C. § 10310(e) (formerly 42 U.S.C § 19731(e)), and the Civil Rights Attorney's Fees Award Act, 42 U.S.C. § 1988(b), a district court has discretion to award reasonable attorney's fees to a "prevailing party." The test for a prevailing party explained by the Supreme Court is that "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); see Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 792-93 (1989) ("The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute."). Defendants do not dispute that Plaintiffs prevailed on their constitutional challenges to the statutes at issue in this case. The Court finds that Plaintiffs are prevailing parties and therefore qualify for an award of reasonable attorney's fees.

         Plaintiffs retained two out-of-state lawyers, M. Laughlin McDonald from Atlanta, Georgia and Stephen L. Pevar from Hartford, Connecticut. Local counsel are Brendan Johnson and Tim Billion of Robins Kaplan LLP. The lodestar requested by Plaintiffs will be discussed in greater detail below, but it is summarized here:

Hours Billed
Fees Requested
Laughlin McDonald
$268, 260.00
Stephen Pevar
$465, 650.00
Brendan Johnson
$41, 040.00
Tim Billion
$17, 825.00
$792, 775.00[1]

         In support of the requested fees, Plaintiffs submit declarations of their lawyers with detailed billing records attached. (Docs. 143, 146, 147 and 148.) Plaintiffs discuss the aggressive defense they faced from their opponents and how their success in this lawsuit not only changed the legal relationship between Plaintiffs and Defendants, but also "changed the face of South Dakota politics and strengthened the democratic process." See Doc. 137 at 4. They assert that the requested billing rates are the prevailing rates for similar work in their attorneys' respective communities and urge the Court to apply the out-of-state billing rates for attorneys McDonald and Pevar, which are higher than the rates of South Dakota counsel, due to the expertise of Mr. McDonald in voting rights cases and Mr. Pevar in civil rights cases, including voting rights. Although local counsel Brendan Johnson and Tim Billion typically bill at $535 and $485 per hour, respectively, for purposes of this motion they reduced their hourly rates to $300 per hour for Mr. Johnson and $250 per hour for Mr. Billion.

         Plaintiffs also request an award of expenses totaling $7, 539.30, consisting of the following: (1) $3, 343.29 for Mr. Pevar's travel expenses, including airfare, lodging, meals and transportation costs incurred in travel to and from depositions in May 2017 and trial in February 2018; (2) $2, 414.02 for Mr. McDonald's travel expenses, including airfare, hotel and taxi to and from trial in February 2018; and (3) $400 for the filing fee, $100 for the pro hoc vice fee and $1, 281.99 for transcripts.

         Defendants oppose the amount of Plaintiffs' fee request, raising two main objections. First, they argue that the Court should apply the hourly billing rates in the South Dakota market. Second, Defendants contend that the Court should adjust the fee request downward to reflect duplicative, vague, excessive or otherwise unnecessary hours.

         1. Reasonable Hourly Rate

         The starting point for determining an award of attorney fees involves calculating the lodestar, which provides an initial estimate of the value of the attorney's service. Hensley v. Eckerhart,461 U.S. 424, 433 (1983). The lodestar is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. The reasonable hourly rate is the prevailing market rate in the relevant legal community for similar ...

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