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8/9/2019 3:14-cv-00064 #188
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
VIRGINIA WOLF, et al.,
Plaintiffs,
v. Case No. 14-cv-64 (BBC)
SCOTT WALKER, et al.,
Defendants.
REPLY DECLARATION OF LAURENCE J. DUPUIS
I, Laurence J. Dupuis, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I am co-counsel for Plaintiffs in the above-captioned action.
2. I submit this Reply Declaration in support of Plaintiffs’ Motion for
Attorneys’ Fees and Costs.
3.
Attached hereto as Exhibit A is a true and correct copy of my time
report reflecting work done and expenses incurred by the ACLU of Wisconsin
Foundation in litigating the above action from December 10, 2014, through
February 18, 2015. This report includes work on behalf of one of the Plaintiff
couples to secure equal treatment in the rights and obligations of marriage, but the
time spent on that work is currently not charged as Plaintiffs hope the issue can be
resolved without further litigation.
4. The time report is based on contemporaneously maintained time
records. It lists the date on which the work was done, a description of the tasks
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performed, and the time devoted to each task. Descriptions of tasks performed were
edited to eliminate identifying information of individuals other than named
plaintiffs, co-counsel and witnesses and to protect privileged and confidential
information. I reviewed the time records, corrected errors and, in the exercise of
billing judgment, determined that some time should not be charged. I excluded all
time spent on media and reduced some time for researching and drafting where I
believe I may have been inefficient. The time report fairly and accurately
represents the time I spent on this case since the initial fee motion was submitted.
5.
As indicated in my initial declaration in support of Plaintiffs’ fee
motion, I have significant experience litigating cases involving the rights of
lesbians, gay men and transgender individuals. I was co-counsel for transgender
prisoners who brought a successful Eighth Amendment challenge to a Wisconsin
statute that prohibited hormone therapy and sex reassignment surgery for
prisoners diagnosed with Gender Identity Disorder. See Fields v. Smith, 712
F.Supp.2d 830 (E.D. Wis. 2010), aff’d 653 F.3d 550 (2011), cert. den. 132 S.Ct. 1810
(2012). I was cocounsel for the bench trial and coauthored the Seventh Circuit briefs
and the brief opposing certiorari in the Supreme Court in that case. I was also co-
counsel in Helgeland v. Wisconsin Dep’t of Employee Trust Funds, a state
constitutional equal protection challenge to the exclusion of same-sex partners of
state employees from health insurance and other state benefits available to the
spouses of different-sex couples. See 2008 WI 9, 307 Wis. 2d 1 (affirming denial of
intervention). That case involved trial court and extensive appellate litigation of a
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procedural issue and ultimately litigation of a summary judgment motion on the
merits in the Dane County Circuit Court. I also represented amici in the circuit
court and each level of the appeal in a cha llenge to Wisconsin’s domestic
partnership law. See Appling v. Walker, 2014 WI 96, 853 N.W.2d 888. In addition, I
have been involved in a number of cases involving the rights of LGBT and HIV-
positive individuals that were resolved without litigation, including cases involving
foster parenting and Gay-Straight Alliances and gender expression at public
schools. I have also given continuing legal education and public presentations on
the rights of LGBT people, including presenting and moderating a panel on the
future of the freedom to marry and other protections for relationships of same-sex
couples at the Wisconsin State Bar Convention on Wednesday, May 5, 2010. While I
do not specialize in LGBT rights as my colleagues John Knight and James Esseks
do, I have as much or more experience in this area as any other Wisconsin lawyer
who has practiced a comparable number of years.
6. Defendants correctly note that I have not in the past claimed a rate of
more than $300 per hour for litigation against State defendants.
7. However, in all of the cases against the State in which I claimed a rate
of $300 per hour or less either: (1) fee rates were capped by the Prison Litigation
Reform Act at well below $300 (see, e.g., Flynn v. Doyle, 06cv537 (E.D. Wis.), Dkt
No. 275 at 4 (PLRA rate capped at $208.50), Dkt No. 279 (order approving fee
settlement of $950,000); Fields v. Smith, 06cv112 (E.D. Wis.), Dkt No. 246 at 4
(PLRA rate capped at $211.50), Dkt No. 256 (order approving fee settlement of
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$735,000); or (2) my claimed rate of $300 was part of an offer to settle the fees
without litigation. Kissick v. Huebsch, 13cv99 (W.D. Wis.)
8. Moreover, in January 2010, more than five years ago, I claimed a rate
of $325 per hour in Christensen v. Sullivan, 96CV1835 (Milw. County Cir. Ct.), a jail
conditions class action in which rates were not subject to the PLRA’s fee cap. A true
and correct copy of my affidavit filed with that fee petition is attached as Exhibit B.
After Defendants filed an opposition, the parties settled the fee petition for $80,000.
9. I take seriously the courts’ repeated admonitions that fees and costs
should be settled where possible. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)
(“Ideally, of course, litigants will settle the amount of a fee.”; fee requests should
“not result in a second major litigation.”); Blum v. Stenson, 465 U.S. 886, 902 n.19
(1984) (“Parties to civil rights litigation in particular should make a conscientious
effort, where a fee award is to be made, to resolve any differences .”); Estate of Enoch
v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009) (urging “the parties to attempt to settle
the [fee] matter so that the tail can stop wagging the dog”).
10.
Because I have successfully settled nearly all fee disputes in the past,
there has been little incentive to undertake a survey of market rates or keep my
rates up-to-date.
11. My current requested rate of $450 per hour reflects my experience with
civil rights litigation in general, with LGBT rights in particular, and the complexity
and novelty of the issues in this case. This rate is consistent with the rates that
could be charged for my services in the Wisconsin market, as indicated by the
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affidavits of attorneys Jeff Scott Olson and Michael Fox previously submitted in this
case. I have practiced law in Wisconsin since 1997, nearly 18 years ago, so my rate
is also consistent with the Laffey Matrix’s average rate of $460 per hour for
attorneys who have, as I have, 11-19 years of experience. (See Dkt No. 185-2.)
12. I have been the legal director of the ACLU of Wisconsin Foundation
since July 2003. Over the 11 ½ years in this position, one of my primary duties has
been to recruit private cooperating counsel to assist in the litigation of ACLU cases
on a pro bono basis. Our office has only two staff attorneys, so recruiting pro bono
counsel is essential to achieving our mission to protect and advance civil liberties
and civil rights through litigation. With very few exceptions, we recruit private
lawyers to assist with all of our cases.
13. I have been involved in a wide variety of civil rights litigation since
2003 and become familiar with the different staffing needs for different types of
litigation. This knowledge and experience informs my recruitment of cooperating
lawyers. For example, a small firm or solo practitioner with extensive civil rights
experience may be sufficient for litigating a case that will not involve extensive
discovery, a compressed schedule or a trial. Cases involving a great deal of
discovery, extensive motion practice, a compressed time schedule (such as a case
that requires preliminary relief), or likely to culminate in trial generally require the
flexibility of a larger firm that can assign associates to tasks as they arise.
14. As a result of my recruiting role, I have also become familiar with the
private civil rights bar in Wisconsin, as well as the pro bono practices of larger
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Wisconsin firms that do not specialize in civil rights, but will take on civil rights
cases on a pro bono basis.
15. In general, lawyers who practice primarily or exclusively as plaintiff-
side civil rights attorneys are in solo or small firm settings. While many such
attorneys are very competent in civil rights matters, they have significant financial
and human resource constraints that limit the size and complexity of cases they are
able to handle on a pro bono basis.
16. Larger law firms are less constrained by human resource and financial
concerns. While they seldom have attorneys who focus primarily on civil rights, they
often have attorneys with significant civil rights experience and/or significant
knowledge and skills transferrable to civil rights cases. However, larger firms are
also significantly more likely to have direct or subject matter conflicts that prevent
them from taking on ACLU cases against state and local government defendants.
My impression is that conflict problems have been exacerbated by the consolidation
of the large law firm market. Larger firms are also more likely to decline cases
because of sensitivity about involvement in cases that might be perceived as
controversial. This sensitivity is sometimes, but not always, expressed in terms of
concern about alienating existing or potential clients.
17. I always attempt to recruit lawyers from Wisconsin to work on ACLU
of Wisconsin Foundation cases and have generally been successful in doing so.
18. As a recent example, I was able to recruit Attorney A. Steven Porter, a
solo civil rights lawyer in Madison, to work with me on the Kissick v. Huebsch
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litigation mentioned above. That case involved a First Amendment challenge to a
permit requirement for protest activity in the Wisconsin State Capitol Building.
Although there were some factual questions related to the nature of the forum and
its suitability for protest activity, I determined that it was unlikely to be
particularly time consuming, and thus could be handled by me and a solo
practitioner with expertise in civil rights and First Amendment issues.
19.
However, I have not always been able to recruit Wisconsin lawyers to
handle cases that I determine are likely to be complex and/or time-consuming, for
the reasons explained above. In such cases, I have been forced to turn to law firms
from other jurisdictions.
20. For example, in the Flynn v. Doyle litigation mentioned above, we
ultimately secured pro bono counsel from the Chicago office of Jenner & Block, after
a large Wisconsin firm that had expressed interest declined the representation
shortly before we were to file the complaint.
21. More recently, in Frank v. Walker, 11cv1128 (E.D. Wis.), a challenge to
Wisconsin’s voter photo ID law, I was unable to recruit Wisconsin attorneys. I
concluded that this litigation was likely to be time intensive and complex. I was
also aware that two medium sized firms with significant civil rights litigation
experience were already representing plaintiffs in state constitutional challenges to
the ID law and thus would be unavailable for a pro bono engagement for our federal
challenge to the law. I attempted to recruit a small civil rights firm, which declined
because it could not make the time commitment required without payment. I then
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attempted to recruit the Wisconsin office of a large national law firm that had been
involved in other voting rights litigation, but that office also declined due to staffing
limitations. Ultimately, lawyers from Dechert LLP, a national law firm, were
recruited to represent the Frank plaintiffs. Lawyers from Dechert’s New York,
Washington, D.C., and Chicago offices have worked on the case. In the related case
of LULAC v. Deininger, which was tried in conjunction with Frank, lawyers from
Arnold & Porter’s offices in Los Angeles, Washington, D.C., and Denver have
worked on the litigation.
22.
On rare occasions, the ACLU does not recruit pro bono counsel for a
particular litigation, typically when we are co-counseling a case with another non-
profit law firm. This was the case in Planned Parenthood v. Van Hollen, 13cv465
(W.D. Wis.), a challenge to a statute requiring doctors who perform abortions to
have admitting privileges at a nearby hospital. Lawyers from the Reproductive
Freedom Project of the ACLU Foundation in New York and the ACLU of Wisconsin
Foundation represent co-plaintiff Affiliated Medical Services in this litigation.
Planned Parenthood had already recruited a Wisconsin firm to participate in the
case and the ACLU determined that recruiting additional pro bono counsel was not
necessary.
23. I am aware that Wisconsin civil rights lawyers and some larger
general-practice firms have been engaged in a great deal of litigation since 2011
challenging state laws as violations of the state or federal constitution. In addition
to the cases mentioned above, there has been state and federal litigation
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26. Some of my contacts with these lawyers were reflected on my initial
time records supporting this motion for fees. Those records (Dkt No. 166-2, Ex. A)
included five time entries for calls to recruit these firms on December 23, 2013,
January 2, 2014, and January 3, 2014. Those contacts are described as “TC” (for
“telephone call”) to and/or from “JF” and “MG,” with the code “Recruit Vol” or
“Volun Atty.” I also searched my emails for communications with these lawyers and
found emails with “MG” on December 19, 2013, to schedule a call to discuss possible
representation, and emails with “JF” on January 2, 2014, to arrange the call that
took place later that day. I also know that I spoke with MG after December 23,
2014, because it was in that subsequent conversation that he informed me the firm
had declined to be involved.
27. Continued efforts with increasingly less likely Wisconsin prospects
seemed an imprudent investment of time, particularly when a Chicago firm with
marriage litigation experience was waiting in the wings.
I declare under penalty of perjury that the foregoing is true and correct to the
best of my knowledge.
Dated this 19th day of February, 2015 at Milwaukee, Wisconsin.
/s Laurence J. Dupuis
Laurence J. Dupuis
State Bar No. 1029261
American Civil Liberties Union of Wisconsin
Foundation
207 E. Buffalo St., # 325
Milwaukee WI 53202
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Tel: (414) 272-4032
Fax: (414) 272-0182
Email: [email protected]
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Dupuis Decl. Ex. B
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