Idaho Gay Marriage Plaintiffs Seek Court Costs

Four couples who successfully sued Idaho Gov. C.L. "Butch'' Otter over the state's gay marriage ban are now asking to be reimbursed for nearly half a million dollars of attorney fees and other court costs.

The group filed a motion in Boise's U.S. District Court on Tuesday asking that the state be ordered to pay more than $467,000 for the expenses associated with bringing the lawsuit.

U.S. District Magistrate Judge Candy Dale overturned Idaho's ban on same-sex marriage earlier this month, saying the ban unconstitutionally denies gay and lesbian residents of their constitutional right to marry. Otter and Idaho Attorney General Lawrence Wasden have appealed that ruling; the case is still pending before the 9th U.S. Circuit Court of Appeals. Until the appeal is decided, no same-sex marriages will be allowed or recognized in the state.

Under federal law, the winner of a lawsuit can generally seek to recover attorney's fees and costs from the losing side. The fees and costs must be approved by a judge and they can be appealed, just like the verdict itself. But they can substantially raise the financial stakes for the losing party.

Earlier this year, Idaho lawmakers approved the governor's request for a transfer of $1 million from Idaho's general fund to the Constitutional Defense Fund - an account that the state can use to pay for costs associated with defending lawsuits that challenge the state's constitution, including the gay marriage lawsuit.

In a document filed with the motion for attorney's fees and costs, the plaintiffs say they had six attorneys working on the case, billing at rates from $175 an hour to $400 an hour. Other expenses included investigation, drafting and communication efforts with the eight plaintiffs, according to the document, as well as communication with at least five attorneys representing Otter, the state of Idaho and Ada County Clerk Christopher Rich.

The couples also say their lead attorneys' requested hourly rates are justified because of their experience and the risk involved in taking the case. Attorney Deborah Ferguson is a former assistant U.S. Attorney with extensive experience working for the U.S. Department of Justice. Shannon Minter is the legal director for the National center of Lesbian Rights and has 20 years of experience, which includes working on marriage-equality cases.

"In addition to this diverse and deep well of expertise, the requested hourly rates are also justified by the unique nature of this litigation and the risk that the attorneys might have worked hundreds of hours without compensation,'' they wrote in the court document.

Attorneys for the state and for the governor have not yet responded to the motion.