Ropes & Gray, NCLR Petition U.S. Supreme Court to Reverse Arkansas Decision to Deny Attorney’s Fees in Pavan v. Smith

The National Center for Lesbian Rights (NCLR), together with Ropes & Gray LLP and Arkansas attorney Cheryl Maples, have asked the U.S. Supreme Court to review the Arkansas Supreme Court’s decision denying attorney’s fees to the lawyers who successfully petitioned the Supreme Court to reverse an earlier Arkansas decision denying constitutional rights to married same-sex parents.

In June 2017, the U.S. Supreme Court, reviewing a petition brought by NCLR and Ropes & Gray, summarily reversed the Arkansas Supreme Court’s decision in Pavan v. Smith which denied same-sex married couples’ right to be named on their children’s birth certificates just as other married parents are. The U.S. Supreme court ruled that the Arkansas law preventing the right to be named was unconstitutional under the Court’s 2015 ruling in Obergefell v. Hodges that states may not deprive same-sex couples of the fundamental right to marry, including the right to participate in the benefits and responsibilities of marriage to the same extent and on equal terms as opposite-sex couples, including with respect to “birth and death certificates.”

Following this decisive victory, the petitioners then filed a motion in the Arkansas Supreme Court for an award of the appellate attorney’s fees they were entitled to receive under federal law. On January 4, 2018, the Arkansas Supreme Court issued an order stating, without further explanation: “Appellees’ motion for appellate attorney’s fees and expenses is denied.”

Ropes & Gray and NCLR have asked the U.S. Supreme Court to review whether a state Supreme Court may deny a prevailing civil rights plaintiff’s application for attorney’s fees without providing any basis for its denial after the plaintiff won a summary reversal from the U.S. Supreme Court and vindicated a constitutional right.

“There is well-established precedent that prevailing civil rights plaintiffs are entitled to an award of attorney’s fees,” said Douglas Hallward-Driemeier, chair of the appellate & Supreme Court practice at Ropes & Gray. “The order from the Arkansas Supreme Court is yet another open display of intransigence by the state court in light of the Supreme Court’s ruling that married same-sex couples and their children must be treated equally under the law.”

Led by Mr. Hallward-Driemeier, the Ropes & Gray team includes litigation & enforcement partner C. Thomas Brown, and litigation & enforcement associates Daniel Fine and Patrick Roath.

A copy of the petition is available here.