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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF, et al.,Plaintiff s,

v

S OIT WALKER, et a .,Defendants.

Case No. 14-CV-00064

DECLARATION O RICHARD M ESENBERG

I, Richard M. Esenberg, pursuant to 28 U.S.C. § 1746. hereby declare as follows:

1 I either have personal know ledge o f he facts stated in this declaration or

derive them from sources rea so nably relied upon by experts in my field.

2. I am an attorney admitted to practice before the Supreme Court o f the

United States, the Supreme Court o f Wisconsin, the United States Court of Appeals for

the Sevent h Ci rcuit and the United States District Courts for the Eastern and Western

Districts of Wisconsin. I have been admitted to practice pro hac vice in numerou s federal

district and state courts throughout the United States.

3 I am the founder, president , and general counsel o f the Wisconsin Institute

for Law Liberty ( WILL ). I have been w ith WILL sinc e 2011.

4. I graduated from Harvard Law School, magna cum laude, in 1981, where I

served as an editor of the Harvard Law Review. I hold a bachelor of arts, summa cum

laud e, in political science from the University o f Wisconsin-Milwaukee.

Case: 3:14-cv-00064-bbc Document #: 186 Filed: 02/09/15 Page 1 of 8

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5. I worked at Foley Lardner LLP in Milwaukee, Wisconsin from 1981 to

1997, flrst as an associate and then as litigation partner, where I was trial and appellate

counsel in numerous public-law cases. Throughout my career , my practice has focused

on civil litigation in state and federal appellate courts in Wisconsin and throughout the

nation. Among the cases I have handled are the Metropolitan Mi lwaukee School

desegregation case , redlining cases, prisoners civil rights litigation , case s brought und er

the Voting Rights ct and a variety of constitutiona l challenges.

6. In December of 1997 , I left Foley Lardner to become Vice President ,

General Counsel and Nat ional Trial Attorney for Rite Hite Holding Corporation , an

international manufacturer of, among other things , dock and door systems, based in

Brown Deer , Wisconsin. In that capacity , 1 supervised and participated in litigation

throughout the country. I reviewed and approved the billings of lawyers engaged in

litigation throughout the country and , in some instances , oversea s .

7 . I currently teach as an adjunct faculty member at the Marquette Univer sity

Law School and was previously on the faculty for four year s . I have taught Civ il

Procedure , Emp loyment Law, Products Liability , Law Governing Lawy ers , Complex

Litigation, Law and Theology , Election Law and a course on the Wisconsin Suprem e

Court and the state constitution. I developed the latter three courses.) My scholarship

concentrated on law and religion , election law, the regulation and nature of public

di scour se, and the Wisconsin Constitution.

8 I founded WILL in 2011. I t is a public interest legal center and think tank

promoting the public interest in individual liberty , economic freedom , con stitutionally

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limited governme nt and th e rule of law and a robust civ il society. Other than religious

liberty , WILL does not invo lve itself in socia l issues. As an organ izat ion , it has no

position o n the issues raised in thi s case (a bout which it s staff and board members may

disagree) and has declined requ ests to become involved in liti gat ion involving the

co nstitutio na li ty of la ws limiting marriage to op pos ite sex co upl es.

9 In my practice at WILL , I hav e focused on civi l r ights and public-interest

li tigation , includin g cases under 42 U.S.C. § 198 3. Among the latter cases are action s

challenging local ordinances and ac tions for vio latin g the First and Fourth Amendme nts

and state campaign finance regulation s for v iol at ing the First and Fourteenth

Amendments to the Uni ted States Co nstitution . Recent cases includ e Vanden Boogart v.

Chri s tensen No. 12-CV -491 (E.D. Wis.); Fred M Young Jr v Timothy Vocke et al

No. 13-CV-635 (E.D. Wis.); and CRG Network v Thomas Bar/and et al No. 14-CV-

719 (E.D. W.is.). In addition to actions brou ght under 42 U.S.C. § 1983 , WILL freque ntly

litigates under other sta tutes prov idin g for co urt awarded fees , most no t ab ly Wi sconsin s

open records and open meetings laws.

10. Given th e nature of WILL ' s practice, we believe that the award of

attorneys' fees is an important and appropriate aspect of public int erest liti gat ion. On the

other hand, we also are aware that fee awards are paid by taxpayers who have genera ll y

not benefitted from - indeed ha ve often been harm ed - by the ill egal government

practices subject to challenge. For this reason and in keeping with the guidance provided

by the courts , we periodically conduct research as to billable rates charge d in Wisconsin

and set book rates to be use d when we are po t entiall y entit led to fee s.

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11 My hour ly billing rate and the rates charged for the time o f other WILL

attorney s and staff is fixed in relation to the rates charged by attorneys of similar skill ,

reputation, and experience in the Wisconsin legal community. WILL's hourly billing

rates are revised from time to time.

12 My billing rate and the bi lling rates of other attorneys and staff at WILL

have been adjusted periodically to account for the increasing skill , reputation , experience ,

and ability of the personnel invo lved and the increasing market rates charged in the

community for the services o f similarly qualified personnel.

13. Since January 1 , 2013 , my standard hourly billing rate has been 375.00

per hour for the civil rights litigation that I have handled.

14 WILL 's current standard hourly rate for the services of Brian McGrath,

senior counsel with WILL , is 375.00 per hour. Attorney McGrath has been in practice

as senior counsel with WILL since May , 2013. Prior to that time , be was a litigation

partner with Fo ley Lardner LLP for 30 years. He hand led genera l commercial

litigation while at Foley & Lardner and is a former chairperson of the firm s Milwaukee

Litigation Department.

15 n 1982 , Attorney McGrath received his juris doctor degree from Harvard

Law School. He is a 1979 graduate of the University of Wisconsin-Milwaukee.

16. Attorney McGrath has been peer review rated as AV ® Preeminent,™ the

highest perfonnance rating in Martindale-Hubbell's peer review rating system , and he is

also listed in Chambers USA: America s Leading Business Lawyers (2005-12) and was

selected in the 2007-11 Wisconsin Super Lawyers® lists. He was a lso se lected by his


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peers for inclusion in The Best Lawyers in merica ® in the area of commercial litigation ,

franchise law.

17 WILL ' s current standard hour ly rate for the service s of Tom Kamenick,

who is employed by WILL as associate cou nse l, is 225.00 per hour. Attorney Kamenick

joined WILL at its foundin g in the summe r of20 11. He graduated magna cum laude from

Marquette Law Schoo l in 2009, was an editor of the Marquette Law Review , and wa s

judicial law clerk to Wisconsin Supreme Court Justice Michael J. Gableman for the 2009-

10 term. Attorney Kamenick has handled civil rights liti gation whi le at WILL.

18. WILL s rates have not yet been adjusted for 20 15. They will be but. n no

in stance , wo uld I expect the increase n book rate to excee d 75.00/hr.

19 I understand that the lawyers for the plaintiff s in this case are seeking the

following rate s and have made a claim for the following billed hours :

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Attorney Name Hours Rate TotalMary Anderson , Mayer Brown 140.50 425.00 59,712.50Paige Becker , Mayer Brm \Tll 7.75 285.00 s 2.208.75Timothy Bishop , Mayer Brown 81.75 980.00 80,115.00Frank Dickerson , Mayer Brown 307.25 555.00 170,523.75Laurence Dupuis , ACLU WIF 436 .79 450.00 196,555.50James Esseks, ACLUF 126 .30 650.00 82.095.00Hans Germann. Mayer Brown 62.00 705.00 43,710.00Gretchen Helfrich , Mayer Brown 525.25 565.00 296,766 .25Gretchen Helfrich , Loevy & Loevy 25.50 300.00 7,650.00Marc Kadish, Mayer Brown 13.50 555.00 7,492.50Rebecca Klein, Mayer Brmn1 118.00 400.00 56,640.00John Knight , ACLUF -104.50 450.00 182,025.00Linda Shi, Mayer Brown 17.00 480.00 8,160.00Kristin Silverman, Mayer Brown 27.25 595.00 16,213.75Maye1· Brown paralegals & support 99.75 variable 27,755.00Totals 2393.09 1 ,237,623.00

20. Based upon my personal knowledge - and WILL s review - of he hourl y

rates charged by attorneys who litigate civil rights and other complex civi l litigation in

this litigation market, it i s my opinion that the rates sought by Plaintiffs ' lawyers in this

action are generally outside the range of hourly rates charged to paying clients by

attorneys of simi lar ski ll, reputation, and ability in the Wisconsin legal community.

2 1. Fo r example, I recently reviewed the fee application of attorneys' fees for

the Plaintiffs in Wisconsin Right to Life v Barland an action that re sulted in invalidation

of numerous provisions of Wisconsin campaign finance law. The rates sought by the

Plaintiffs were as follows:

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Atto rney Years Experience Rate

James Bopp , Jr 41 400 hou r

Randy Elf 16 325 hour

Michael Dean 27 375 hour

Richard E. Coleson 27 375 hour

The rate sought by Atto rn ey Bopp is partic ul ar ly instructive. Mr. Bopp is one of the

country 's preeminent lawyers n the area of campaign fmance. He - and Me ssr s. Elf and

Coleson- have been involved in man y of the major campai gn finance cases heard by the

United States Sup reme Co urt and lowe r federal court s over the years.

22. Based upon our expe ri ence and review of rates n the Mi lwa ukee market for

comp lex liti gation, my understanding is that rates for associates are n the range 175-400

per hour, young partner rates are n the range of 350-500 per hour and senio r partner

rates are in the range of 475 -675 per hou r. Very few partners n the M il waukee mark et

would comma nd a rate of 600 per hour or hi gher There is overlap in these number s

because different firms promote associate s to partner s earlier than others and different

firm s increase their rates fo r partners ear li er than others These ranges are not the re sult of

a scientific survey of firm rates, but are instead based upon anecdota l information we

have obtained at WILL.

23. In my opinion, the hourly rates sough t by Plaintiffs' counsel n this case,

and n particular by the Chicago Mayer Brown attorneys w ho worked on this case . are

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much higher than rates that wou ld be expecte d to be charged to paying c ents for c iv l

rights litigation work in the Wisconsin legal market.

I declare under penalty o perj ury that the foregoing is true and correct.

Subscribed and sworn to before methlsd Yday o January 2015.

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