DENVER — An appeals court decided Monday that Tulsa County will have to pay the legal fees for one of two lesbian couples involved in a lawsuit that led to Oklahoma’s ban on same-sex marriages being overturned.
The 10th U.S. Circuit Court of Appeals’ decision granted the request of attorneys for Mary Bishop and Sharon Baldwin to award them fees for their legal work on the case in the court.
The court denied the request of the same attorneys to have the county pay their fees for their legal work for another lesbian couple, Susan Barton and Gay Phillips, who sued unsuccessfully to have their California marriage recorded in Oklahoma.
The Denver-based court, in a three-paragraph order, instructed U.S. District Judge Terence Kern in Tulsa “to conduct all proceedings necessary to determine an appropriate award amount.” Kern presided over both couples’ lawsuits before the cases reached the appeals court.
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A federal law allows plaintiffs in civil rights cases, such as the lawsuits of the two couples, who prevail in court to recover reasonable attorney fees from the losing side in the cases. Tulsa County was the losing side in the Bishop-Baldwin lawsuit because the couple sued County Court Clerk Sally Howe Smith, whose duties include issuing marriage licenses.
Oklahoma’s ban on same-sex marriages barred Smith from issuing licenses to same-sex couples. The 10th Circuit Court on July 18 overturned the ban, concluding it violated the U.S. Constitution’s protection of equal rights for all people.
In Monday’s decision, the appellate judges agreed with Tulsa County that the attorneys are not entitled to have the county pay their fees for their court work on behalf of Barton and Phillips because that couple did not prevail in their case.
Kern and the 10th Circuit judges ruled against Barton and Phillips. The appeals court dismissed Barton and Phillips’ appeal, stating they did not have the legal right, known as “standing,” to sue Smith because she had no authority under state law to recognize or record anyone’s out-of-state marriage.
Bishop is a Tulsa World editor; Baldwin is a former editor at the newspaper.
Don Holladay, the lead attorney for the couples, said he and two or three other attorneys who worked on the appeals will seek fees in amounts not yet calculated. Holladay, speaking from Oklahoma City where he is based, said he anticipates that Kern may request the couples’ attorneys to justify the amount they request and give the county an opportunity to state its position on the amount.
Holladay said he has worked on the case without pay since June 2009 in Kern’s court and will not seek pay for that work. The request for fees is only for the work at the 10th Circuit court, starting in January, he said.
“We are pleased that our attorneys will finally receive some reward for their many years of hard work on our case,” Bishop and Baldwin said in a prepared statement.
“It’s bad lawmakers who put an unconstitutional proposal (the same-sex marriage ban) on the ballot who are making all of us — including the four plaintiffs — have to pay. We, as taxpayers, are not unhappy to pay this because we hope that the punitive nature will encourage voters to elect lawmakers who will write good and fair laws.”