Attorneys defending transgender medical care ask the state for $1.4 million after legal victory

Attorneys who successfully challenged a bill passed by the 2023 Legislature which would have banned minors from receiving gender-affirming medical care in Montana, have asked a district court judge to award more than $1.4 million in attorneys fees and costs related to the case.

Attorneys, led by both the state and national American Civil Liberties Union, were successful in challenging Senate Bill 99 as unconstitutional. Missoula County District Court Judge Jason Marks found that the measure violated the constitutional rights including equal protection, freedom of speech and the right to privacy. A team of attorneys from across the nation successfully challenged the law, which was struck down and allows medical providers to still offer gender-affirming care to residents less than the age of 18.

Attorneys said they vindicated — or successfully challenged — the constitutional rights of their clients and other state residents, and should get attorneys fees under the “private attorney general” doctrine which says that parties which have to defend basic rights are entitled to attorneys fees when the state refuses to defend them.

“This litigation did not merely vindicate abstract constitutional rights — it immediately and effectively voided a statute that threatened the rights of some of Montana’s most vulnerable residents,” the court documents said.

Court documents, like those filed by the ACLU of Montana earlier this month, also give a look at the time, effort and tactics used by both sides. In its court filing, the ACLU alleges that the court case was especially time consuming because of attempts by the Montana Attorney General’s Office to delay or slow the case, including making untimely motions, sending disorganized documents, or trying to include other third parties.

The Daily Montanan reached out to the Montana Attorney General Office’s with an opportunity to comment or offer its explanation, but officials did not immediately respond to requests.

The attorneys fees include $1.3 million, plus an additional $86,523 in costs.

Marks had said in his ruling that the state failed on several different aspects of the case.

“The Legislature disregarded its constitutional limitations, and the Attorney General offered no substantive or constitutional interest in defense of these actions,” Marks said.

The ACLU and the plaintiffs said that because the Legislature, the Attorney General and the governor all agreed on the topic, it left the plaintiffs to stand up for themselves.

“Private enforcement (was) the only option for plaintiffs to protect their rights,” the new court filings said. “Without this lawsuit, SB 99 would have remained in effect despite its unconstitutionality.”

The new court documents also paint a picture of the state attorneys as either disorganized or meritless. For example, it opposed admitting out-of-state attorneys — something that is common practice — which ultimately slowed the case and caused additional attorney time justifying why Marks should allow several attorneys to work on the case while in Montana courts.

“The state elected to combine different types of discovery — interrogatories, requests for production, and requests for admission — within each set in a disorganized manner, with no apparent logical order,” the ACLU said.

They argue that the additional disorganization and procedural fights were tactics to delay the case, but also run up the attorney bills. The attorneys who originally signed on agreed to take the case pro bono.

The attorneys who worked on the case for the plaintiffs show rates varying from $350 to $500 per hour, which they said is reasonable for Montana work, and then offered a comparison when the Attorney General’s Office paid a $500,000 retainer to a Washington, D.C., law firm to defend a challenge to another Legislature-passed bill regarding the popular social media application, TikTok. Attorneys hired by the state were contracted at between $650 and $700 per hour.

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom.