Case 4:13-cv-00410-KGB Document 45 Filed 12/22/14 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RITA AND PAM
JERNIGAN; BECCA AND
TARA AUSTIN; AND
RANDY AND GARY
EDDY-McCAIN
VS.

PLAINTIFFS
NO. 4:13-CV-410KGB

LARRY CRANE, IN HIS

OFFICIAL CAPACITY AS
CIRCUIT AND COUNTY
CLERK FOR PULASKI
COUNTY, ARKANSAS, ET
AL

DEFENDANTS

BRIEF IN SUPPORT OF SEPARATE DEFENDANT LARRY CRANES RESPONSE TO

PLAINTIFFS MOTION FOR SEPARATE ATTORNEYS FEES AND COSTS
Plaintiffs filed this action for declaratory and injunctive relief, challenging the
constitutionality of Arkansas laws that exclude samesex couples from marriage and
prevent the state from recognizing same-sex marriages from other states. This Court
found in favor of Plaintiffs on federal constitutional grounds and ruled that
Amendment 83 of the Arkansas Constitution and Arkansas Code Annotated sections 911-207, 9-11-209, and 9-11-208 are unconstitutional . Plaintiffs now seek attorneys fees
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and costs under 42 U.S.C. 1988, Federal Rule of Civil Procedure 54(d)(2)(1), and Ark.
Code Ann. 16-123-107 in the amount of $15,900 in fees and $511.47 in costs. Separate

Plaintiffs asserted multiple theories as to how the Arkansas laws denied their
Fourteenth Amendment rights, including: the laws denied their fundamental right to
marry; the laws violated their equal protection rights; the laws interfered with their
right to travel; the laws interfered with their liberty interests; and the laws interfered
with their rights to autonomy, family, privacy, and association. The Court found in
Plaintiffs favor as to their claims of deprivation of the fundamental right to marry and
equal protection but dismissed Plaintiffs other claims.
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Defendant Larry Crane (Crane) opposes apportionment of a fee award to Pulaski

County on ground that the State, not the County, is the culpable party. Further, equity
does not support the award of fees against him. Crane opposes an award of fees under
the Arkansas statute because the case was prosecuted under the federal constitution.
Finally, Crane opposes the enforcement of any cost award against him under Federal
Rule of Civil Procedure 54 on the same grounds that he opposes a fee award against
him under section 1988.
I.

THE DEFENDANTS
Plaintiffs amended complaint outlines the roles of each of the four defendants.

Crane is the only defendant sued as a representative of a county. The other three
defendants, Richard Weiss, George Hopkins, and Attorney General Dustin McDaniel,
are each sued in their official capacities as representatives of the State of Arkansas or, in
the case of Defendant Hopkins, as representative of a state entity, the Arkansas Teacher
Retirement System.
II.

CRANES ACTIONS
As the amended complaint explains, Cranes liability exists due to his role as

Pulaski County Clerk, the elected official tasked with issuing marriage licenses in
Pulaski County. Amended Complaint at 17. State law requires a county clerk to issue
a marriage license if a license application meets the requirements of Arkansas law. Ark.
Code Ann. 9-11-203. Crane has no discretion to deny the license if the applicants meet
legal requirements to marry in this state and no discretion to issue the license anyway if
they do not. Where county officials are sued simply for complying with state mandates
that afford no discretion, they act as an arm of the State. Allen v. Leis, 154 F. Supp. 2d
1240, 1262 (S.D. Ohio 2001).

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Plaintiffs applied for marriage licenses on July 11, 2013, at which time Arkansas
law prohibited same-sex marriage. Cranes office denied Plaintiffs applications for
marriage licenses because they were not qualified to marry under the law on the date of
application.
III.

ALLOCATION OF FEES UNDER 42 U.S.C. 1988

A court, in its discretion, may award a reasonable attorneys fee to the

prevailing party in cases brought under 42 U.S.C. 1983. 42 U.S.C. 1988. In cases
involving multiple defendants, there are multiple approaches to awarding fees and no
simple formula [is] of universal applicability. Herbst v. Ryan, 90 F.3d 1300, 1304 (7th
Cir. 1996). A joint and several liability approach to the division of fees may be
appropriate in cases in which two or more defendants actively participated in a
constitutional violation. Id. However, joint and several liability is not appropriate in
every case involving an indivisible injury. Id. See also Barnard v. Piedmont Regl Jail
Auth., No. 3:07CV566, 2009 U.S. Dist. LEXIS 98004 (Oct. 21, 2009 E.D. Va.). A number
of factors govern the decision whether to apportion or to use joint and several liability:
the relative active or passive role each defendant played, fairness, and the goal of
reimbursing private attorneys general. Molnar v. Booth, 229 F.3d 592, 605 (7th Cir.
2000). Fees can be divided according to relative culpability of the various defendants.
Council for Periodical Distribs. Assns v. Evans, 827 F.2d 1483, 1487-88 (11th Cir. 1987).
IV.

ARGUMENT
Crane does not contest Plaintiffs prevailing party status or the reasonableness of

the fees claimed. Rather, Crane asks this Court, in its discretion under 42 U.S.C. 1988,
to decline to enter a fee award against him. The State, not Pulaski County, is the
appropriate party to pay fees awarded. Further, equity does not support the entry of a
fee award against Crane.
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When a state statute is ruled unconstitutional, the state is the proper party to pay
attorneys fees under section 1988, not local enforcement officials. See, e.g., West
Virginians for Life v. Smith, 952 F. Supp. 342, 348 (W.D. Va. 1996) (It would be patently
unfair to require West Virginias fifty-five county governments to shoulder a share of
the cost of the States unconstitutional action.). A county official pursues his duties as
a state agent when he is enforcing state law or policy. He acts as a county agent when
he is enforcing county law or policy. It may be possible for the officer to wear both state
and county hats at the same time, but when a state statute directs the actions of an
official, as here, the officer, be he state or local, is acting as a state official. Echols v.
Parker, 909 F.2d 795, 801 (5th Cir. 1990). Here there are no county ordinances, policies, or
laws at issue, only Amendment 83 and its enabling legislation.
Plaintiffs claims are based entirely on the unconstitutionality of Arkansass state
constitution and statutes. Plaintiffs did not allege any unconstitutional county policy
under which Crane operated. In fact, Plaintiffs amended complaint alleges Mr.
Cranes office refused to issue them marriage licenses because Ark. Code Ann. 9-11-203
and Amendment 83 prohibit the Clerk from issuing a marriage license to persons of the
same gender. Amended Complaint at 17 (emphasis added). The people of Arkansas,
acting as the state legislature, adopted Amendment 83 as an initiated act. The Arkansas
General Assembly adopted the enabling statutes. Cranes role was solely to apply state
policy regarding issuance of marriage licenses.
Further, throughout this lawsuit, the state defendants pursued dismissal of the
action on the merits. Cranes appearance in this case did not require Plaintiffs counsel
to do work that was not otherwise required by the appearance of the State defendants
or required even if Crane were not a defendant.
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The Court should decline to enter an award of fees against Crane based on equity
and fairness. Prior to the filing of this lawsuit, same-sex couples challenged Arkansass
same-sex marriage ban under in state court. In May 2014, Arkansass same-sex marriage
ban was overturned based on federal and state law in an opinion issued by Circuit
Judge Chris Piazza. See generally, Wright v. Arkansas, 60CV-13-2662 (Ark. Cir. Ct. May
2014). Thereafter, Judge Piazzas opinion was stayed by the Arkansas Supreme Court
pending appeal.
During the short period of time in which same-sex marriage was allowed under
Arkansas law, Cranes office issued many marriage licenses to same-sex couples. See,
e.g., Max Brantley, Update: Dozens Marry As Same-Sex Marriages Begin in Little Rock,
Arkansas Blog (May 12, 2014); Arkansas Clerk Defends Continuing to Issue Same-Sex
Marriage Licenses, OzarksFirst.com (May 14, 2014) (quoting Crane as saying it is wrong
to deny same-sex couples the basic right of marriage). During that same time, other
county clerks in Arkansas refused to issue marriage licenses to same-sex couples. Zach
Ford, Why Some Arkansas Clerks Are Refusing to Issue Marriage Licenses to Same-Sex
Couples, ThinkProgress (May 13, 2014). Crane was sympathetic to Plaintiffs cause.
Had Crane issued marriage licenses to the Plaintiffs on July 11, 2013, he would
have committed a criminal offense under Arkansas law, subjecting himself to personal
criminal liability. Arkansas Code Annotated section 9-11-204 makes it a misdemeanor
offense for a county clerk to issue a marriage license to any persons who are declared
by law as not entitled to the license. Ark. Code Ann. 9-11-204.
Cranes position on July 11, 2013, was a catch-22. He could either follow the
Arkansas law as he was sworn to do and subject himself to future civil liability or he
could disregard the law, issue the marriage license, and subject himself to criminal
liability. Had Crane chosen to issue same-sex marriage licenses in July 2013, the State
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would not have recognized the marriages as legal. Being charged with a crime would
not have aided Plaintiffs or given Crane standing to challenge Amendment 83 or its
enabling statutes because the laws at issue did not personally harm him. Equity does
not favor an award of fees against Crane under these circumstances.
Arkansass Civil Rights Act, Ark. Code Ann. 16-123-105(a), creates a cause of
action in cases where state actors violate an individuals state constitutional rights. A
prevailing plaintiff may be awarded attorneys fees in such an action. Ark. Code Ann.
16-123-105(b).
Plaintiffs claims were not adjudicated under the Arkansas Civil Rights Act.
Rather, the Courts judgment is based on the Fourteenth Amendment to the United
States Constitution. This Court stated the Fourteenth Amendment claims were the
only claims discussed by all parties briefings. Because Plaintiffs are not prevailing
parties under a state law claim, an award of attorneys fees under state law is not
appropriate.
Federal Rule of Civil Procedure 54(d)(1) allows an award of costs to the prevailing
party in federal litigation. Like an award of fees, an award of costs may be attributed
against different defendants in varying degrees. Concord Boat Corp. v. Brunswick Corp.,
309 F.3d 494, 497 (8th Cir. 2002) (indicating joint and several liability is not the only
method for allocating an award of costs). Crane should not be liable for Plaintiffs costs
for the same reasons he should not be liable for their attorneys fees.
V.

CONCLUSION
Crane urges this Court to deny Plaintiffs request for fees against him. Pulaski

County bore no responsibility for the unconstitutional actions of the State. When Crane
denied Plaintiffs applications for marriage, he was acting as a state official, and the
County should not have to pay for litigation costs incurred by Plaintiffs in challenging
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the States unconstitutional policy. Further, equity does not support an entry of a fee
award against Crane because Cranes actions were limited to following the laws he was
bound to follow.
Fuqua Campbell, P.A.
Attorneys at Law
3700 Cantrell Road, Suite 205
Little Rock, Arkansas 72202
(501) 374-0200

By: David M. Fuqua

Ark. Bar No. 80048
E-mail: dfuqua@fc-lawyers.com
Attorneys for the separate Defendant,
Larry Crane, in his official capacity

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CERTIFICATE OF SERVICE
I, David M. Fuqua, do hereby certify that I served a copy of the foregoing by
means of the Courts ECF/CM system on the following attorneys of record:
Cheryl K. Maples
ckmaples@aol.com
Angela Griffith Mann
angela@wagonerlawfirm.com
R. Keith Pike
keith@wagonerlawfirm.com
Jack Wagoner, III
jack@wagonerlawfirm.com
Nga Mahfouz
nga.mahfouz@arkansasag.gov
on this 22nd day of December, 2014.

David M. Fuqua