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Judge approves fees in Trinity Lutheran case

Jessica Shumaker//November 9, 2018//

Judge approves fees in Trinity Lutheran case

Jessica Shumaker//November 9, 2018//

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A federal judge has approved $433,791 in attorneys’ fees and expenses in the case of a Columbia church whose suit against the state of Missouri went before the U.S. Supreme Court in 2017.

In an order issued Nov. 7, U.S. District Judge Nanette K. Laughrey granted the fees for the attorneys representing Trinity Lutheran Church, which were nearly half of what the attorneys had initially requested — $891,610.

The church claimed it faced religious discrimination from the state of Missouri when the daycare that it runs was denied a grant to used recycled tire scraps to resurface its playground.

In June 2017, the Supreme Court ruled that the state’s denial of the church’s application for a playground-resurfacing grant, for which it was otherwise qualified, on the sole ground that it was a religious institution violated the Free Exercise Clause of the First Amendment.

Laughrey’s order granted the church’s motion for fees in part and denied it in part. She found the fees submitted by the plaintiff’s counsel to be not reasonable.

The plaintiff was represented by 10 attorneys from the Alliance Defending Freedom, or ADF, a conservative Christian organization which handles religious-freedom cases. They included David Cortman, Erik Stanley, Rory Gray, Joel Oster, Jordan Lorence, Christina Holcomb, Kevin Theriot, Christen Price, Jeremiah Galus and Ray Kaselonis.

Local counsel also included the father-and-son duo of Michael Whitehead and Jonathan Whitehead, of The Whitehead Law Firm in Lee’s Summit.

Altogether, the plaintiff’s attorneys sought $840,605 for the 12 attorneys plus two legal assistants. Laughrey instead approved $401,198, with a breakdown of $372,998 for the ADF attorneys, $14,850 for Michael Whitehead and $13,350 for Jonathan Whitehead.

U.S. District Judge Nanette Laughrey
U.S. District Judge Nanette Laughrey

Laughrey wrote that the state acknowledged that the church is entitled to fees and costs, but she disputed the reasonableness and amount of the fees they sought.

In defending its request, ADF said its fees were warranted because its counsel are “leaders in the field” of First Amendment litigation and the higher fees were warranted because of “the market from which [they] traveled,” Laughrey wrote.

She noted the three lead attorneys representing the case before her and the 8th Circuit, Stanley, Oster and Holcomb, were based in Kansas City initially.

“Plaintiff appears to concede that a ‘Missouri market’ rate should apply to litigation before the Court and the Eighth Circuit,” Laughrey wrote. “These attorneys propose to bill $495, $450, and $200 an hour, respectively.”

The three attorneys were later joined by David Cortman and Rory Gray, who took the lead when the case went before the U.S. Supreme Court. Laughrey wrote that the church insisted a different rate of pay should apply to work before the high court, with Cortman seeking $695 an hour and Gray $350 an hour.

Laughrey wrote that the other fees sought by the plaintiff range from $150 an hour to $550 an hour.

After researching fee awards in First Amendment cases, she found their proposed rates unreasonable, she wrote.

The judge said the church’s case is not one in which the plaintiff was unable to find local counsel, noting that the church selected ADF as counsel after learning the attorneys were in the Kansas City area.

“In other words, Trinity Lutheran selected its counsel in part because they were local,” she said. “Moreover, Trinity Lutheran subsequently added two additional Missouri attorneys, Michael Whitehead and Jonathan Whitehead, to its legal team, which further establishes that sufficiently experienced and skilled counsel was available locally.”

Laughrey also was critical of the charges submitted by the plaintiff. In one section, she noted that Michael Whitehead submitted entries reflecting discussions with members of the media.

One such example: an April 2017 entry labeled “Media call. Research file to answer media question. Interview with Missouri Lawyers Weekly, Scott Lauck, KCMO.”

Laughrey wrote that while Whitehead “acknowledges that ‘such work was not directly related to the preparation or presentation of the Plaintiff’s case to any court,’” he reduced his hourly $370 an hour rate by “about 25 percent” for such media interactions.

In a footnote, Laughrey wrote that his son, Jonathan Whitehead, in contrast, did not submit a claim for time spent responding to media requests, “recognizing that ‘such work was not directly related to the presentation of the Plaintiff’s case to any court.’”

Laughrey eliminated those charges from the final amount, ruling that “fees for time spent discussing media matters cannot be shifted to Defendant.”

Neither Stanley nor Michael Whitehead could immediately be reached for comment on the ruling.

The case is Trinity Lutheran Church of Columbia Inc. v. Comer, 2:13-cv-4022.

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