- The Washington Times - Friday, October 10, 2003

A federal appeals court yesterday rejected a $76,109 bill from advocacy-group lawyers who successfully argued for the removal of the Ten Commandments display from Alabama’s Supreme Court.

The 11th U.S. Circuit Court of Appeals panel praised the “excellent job” by lawyers from Americans United for Separation of Church and State and the Southern Poverty Law Center, but said the team’s lead lawyer, Ayesha N. Kahn, was far too expert to justify so much time preparing the appeal.

“It takes more time and effort to stalk beasts in the backwoods than it does to shoot fish in a barrel. … [For this appeal] not much stalking by plaintiffs’ counsel was required,” the court said in the 2-1 opinion that reads like an ad for Ms. Kahn’s legal talents.

The decision chastised suspended Alabama Chief Justice Roy S. Moore for not objecting to the “prevailing party’s” fee request and, in passing, for “his publicly announced intention to defy” the U.S. District Court order to remove the display that has since been carried out.

Winning lawyers in civil rights cases normally are awarded fees for their full bill if the loser does not object. It is particularly unusual in this case for the court to raise questions on its own because three lawyers on the team opted “as an exercise of billing judgment” not to charge for their time.

“We appreciate that fact, but on remand the District Court should determine whether the attorneys who did opt to seek reimbursement for their time should have exercised more billing judgment,” the court said.

The panel acknowledged that Chief Justice Moore raised new arguments, but said “it should not have taken much time” to find court decisions that blocked his contention that “the Ten Commandments are not religious in nature and his argument that he can do as he pleases regardless of federal court decisions to the contrary.”

“A legal team headed by Ms. Kahn should have taken fewer hours to handle this case on appeal than one without the benefit of her expertise,” the majority added without specifying how many of the 320 billed hours were too many.

The appeals judges passed that task to the trial court and directed the judge to consult Alabama Attorney General Bill Pryor, even though his office did not directly represent the chief justice. The judges hinted that settling on a fee rather than defending against the claim would save taxpayers money.

Mr. Pryor told The Washington Times late yesterday that he had deferred to the chief justice’s attorneys and now “will participate in the proceeding before the District Court and strive to protect the taxpayers’ interest.”

Barry Lynn, executive director of Americans United, said he believes the fee request is reasonable and reflects long hours of work.

“I am proud of the work they did,” he said. “However, if the federal court thinks the request is too high and reduces it, we will accept that decision.”

Chief Justice Moore did not respond to inquiries at either of his offices.

The panel said Ms. Kahn, a staff lawyer at Americans United in the District, has focused on First Amendment religion cases for five years, including seven other Ten Commandments cases.

“With that kind of experience comes knowledge, efficiency, and self-confidence, which should reduce the number of hours necessary for the task,” the court said in the opinion written by Circuit Judge Edward Carnes, a 1992 Bush appointee, who was joined in the majority by Chief Circuit Judge J.L. Edmondson, a Reagan nominee.

The dissenter was U.S. District JudgeRichard W. Story, a special designee to the appeals panel who said that in the absence of objection by Chief Justice Moore, the state should pay the full claim. Judge Story was a Clinton appointee to the Northern District of Georgia.

The billing included 215 hours for writing the brief, 90 hours preparing for and delivering the argument in court, and 15 hours on the fee request.

The decision flatly prohibited paying for an additional handful of hours used to recruit supportive friends of the court and assistance in writing their amicus briefs.

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