Alaska News

Cost to state of defending same-sex marriage lawsuit tops $100,000

The cost of defending Alaska's ban on same-sex marriage has reached into six figures.

According to the Department of Law, the state spent $103,231.78 through the end of October to defend Hamby v. Parnell, the lawsuit that overturned Alaska's same-sex marriage ban.

Attorneys for the plaintiffs, who brought the suit in May, have asked for $258,938.40 in fees from the state. Since the plaintiffs prevailed, they can appeal to court for reasonable fees and expenses. If awarded those fees, that could mean the state would pay upward of $361,000 in total.

In response to a request from Alaska Dispatch News, the state said it spent $92,621.43 on attorney and paralegal costs from when the suit was filed through Oct. 31. The Department of Law also noted an additional $1,000 in other costs and $9,600 for outside counsel.

The outside counsel is S. Kyle Duncan, a Washington, D.C., attorney who has worked with the state to appeal at the U.S. Supreme Court and Ninth U.S. Circuit Court of Appeals.

In October, U.S. District Court Judge Timothy Burgess ruled that the constitutional amendment defining marriage as between one man and one woman was a violation of equal protection and due process rights. Marriages began shortly thereafter. So far, approximately 74 marriages licenses for same-sex couples have been issued in Alaska.

That process hasn't been without some holdup. Shortly after Burgess issued his order, Gov. Sean Parnell indicated he would challenge the ruling at the Ninth U.S. Circuit Court of Appeals. After state requests for a stay at that court and the U.S. Supreme Court -- including a daylong period when marriages were paused -- the higher courts denied the stay, allowing marriages to proceed.


Plaintiffs' attorney Allison Mendel said she thought the state's costs seemed reasonable in comparison to what she and fellow attorneys Heather Gardner and Caitlin Shortell spent.

The plaintiffs' motion for fees notes that counsel agreed to represent the plaintiffs at no cost, and that there was a "high risk" they might never be compensated for their time. The motion notes the three attorneys and their paralegal team spent approximately 789 hours working on the case. The state notes that it spent 670 hours defending the case.

In an interview Monday, Mendel said it takes more work to put the case together. The state's focus has been on appealing the case, which requires less legal maneuvering.

Mendel added that costs would be "a lot more" for the state if it continues pursuing the appeals process. The state has asked for a review of the case by a higher panel of judges from the Ninth Circuit Court. That appeal seems unlikely to succeed given the court has not accepted similar appeals in the Nevada and Idaho same-sex marriage challenges or the SmithKlein case, which was used to argue in favor of overturning the Alaska, Nevada and Idaho same-sex marriage bans.

A "circuit split" on marriage equality also developed this month when the Sixth U.S. Circuit Court of Appeals upheld same-sex marriage bans in the Midwest region. Watchers of the Supreme Court have noted that such a split is almost certain to lead to a review by the higher court.

The cost of appeals became a point of contention during the election for governor. It appears $42,000 was spent in October, including costs related to the appeals process and oral arguments. During the campaign, Parnell, who lost his bid for re-election to Bill Walker, said he would defend Alaska's constitution by continuing the appeals process. Walker said while he believed marriage was a "union between a man and a woman," he would not pursue what he called "expensive litigation that has little chance of victory."

Sen. Bill Wielechowski, D-Anchorage, looked into the cost of defending the lawsuit last month. His office was told that total costs for the state through September -- before the appeals process began -- were $61,260.

He said he wasn't surprised to hear about the updated costs. When asked if he though the state's cost were reasonable, Wielechowski pointed out a looming $3 billion budget deficit and problems keeping programs open for his constituents, such as the Muldoon Job Center.

"It just seems like we're wasting money," he said.

Walker's campaign spokeswoman Lindsay Hobson said Monday the governor-elect's focus is solely on transition. Hobson said reviewing the case would not be an "issue addressed" in that process. Once he takes office -- swearing-in is set for Dec. 1 -- he will likely review that case and others before deciding how to proceed.

Suzanna Caldwell

Suzanna Caldwell is a former reporter for Alaska Dispatch News and Alaska Dispatch. She left the ADN in 2017.