State ordered to pay more than $500K to ACLU of Montana

The state of Montana has been ordered to pay more than $500,000 to the ACLU of Montana and its legal team in a lawsuit to protect the rights of people who are transgender after the State of Montana repeatedly defied court orders, a judge said.

In an order granting the award, Yellowstone County District Court Judge Colette Davies said the State of Montana defied compliance with an earlier judge’s order, prolonged litigation unnecessarily, and “repetitively advanced positions” the court had already rejected.

“It is important for this Court to highlight that the large amount of fees awarded in this case are not the product of overzealous advocacy or unnecessary litigation by Plaintiffs, but rather the direct and foreseeable consequence of Defendants’ own litigation conduct,” the judge said in the order issued last week.

The judge made the award in Amelia Marquez vs. State of Montana, a lawsuit over Senate Bill 280 from the 2021 legislative session. SB 280 sought to change the way Montanans could amend the sex designation on their birth certificates by requiring proof of a change of sex resulting from surgery.

The order said both the plaintiffs and defendants agreed the law was unconstitutional because it was based on “a factual impossibility,” and both parties agreed “no surgical procedure exists that can change an individual’s sex.”

The judge described the award as “substantial” but also granted less than the amount sought by the plaintiffs in fees and costs, $725,916.45.

The lawyers for the plaintiffs were from the ACLU of Montana, the national American Civil Liberties Union, and the Nixon Peabody firm, whose attorneys in the case have experience in identity documentation for people who are transgender.

Montana Department of Justice spokesperson Chase Scheuer did not answer a question Monday about whether the state would appeal the award. He also did not address a request for comment to taxpayers potentially on the hook for more than $500,000 due to the state’s wasteful litigation tactics as described in the order.

“Awarding substantial attorneys’ fees here does not punish Defendants for losing; it allocates responsibility for the costs of litigation to the party whose conduct made those costs unavoidable,” the order said.

The judge made the award based on the complexity of the case and expertise of the lawyers; the hours and hourly rates for the attorneys working on it and related evidence; and its importance in protecting the Constitutional rights of Montanans.

“The litigation served not only Plaintiffs’ individual interests but also clarified limits on governmental authority, enhancing its public significance,” the order said. “By restoring pre-SB 280 procedures, both individual rights to accurate legal recognition and broader principles of equal treatment under Montana law were vindicated, ensuring that Montanans can exercise constitutional rights without arbitrary barriers.”

However, the judge granted the ACLU of Montana less than it had requested for a couple of different reasons. For example, timekeeping by one of the lawyers lacked specificity, and in another case, the team used a lawyer that billed a higher rate to do work that didn’t require such expertise, the judge said.

“Because the court did find some aspects of the billing reflect some redundancy, some inadequate records, and some over-allocation of high-level professional resources, the Court found that a reduction to the … calculation was appropriate in the overall amount of 30%,” the order said.

The order said the Court did not question the good faith of the lawyers, but the Court also couldn’t award compensation at “premium rates” when they were not fully reasonable.

The ACLU of Montana said an award that’s less than the amount requested is common in such cases.

“It’s typical for Courts to apply a reduction to eliminate duplications across time entries,” said the ACLU of Montana. “We are satisfied with the order and will defend it on appeal.”

The order calculated the award for contempt-related fees at $24,265.50, for the Constitutional challenge at $462,793.63, and costs at $30,117.70, or a total of $517,176.83.

Judge Michael Moses, now retired, presided over the original case, entered summary judgment in favor of the plaintiffs, found the defendants in contempt of court, and found the plaintiffs were entitled to recover attorneys’ fees and costs.