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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF, et al.,

Plaintiffs,

v. Case No. 14-cv-64 (BBC)

SCOTT WALKER, et al.,

Defendants.

REPLY DECLARATION OF LAURENCE J. DUPUIS

I, Laurence J. Dupuis, pursuant to 28 U.S.C. § 1746, declare as follows:

1. I am co-counsel for Plaintiffs in the above-captioned action.

2. I submit this Reply Declaration in support of Plaintiffs’ Motion for

Attorneys’ Fees and Costs.

3.

Attached hereto as Exhibit A is a true and correct copy of my time

report reflecting work done and expenses incurred by the ACLU of Wisconsin

Foundation in litigating the above action from December 10, 2014, through

February 18, 2015. This report includes work on behalf of one of the Plaintiff

couples to secure equal treatment in the rights and obligations of marriage, but the

time spent on that work is currently not charged as Plaintiffs hope the issue can be

resolved without further litigation.

4. The time report is based on contemporaneously maintained time

records. It lists the date on which the work was done, a description of the tasks

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performed, and the time devoted to each task. Descriptions of tasks performed were

edited to eliminate identifying information of individuals other than named

plaintiffs, co-counsel and witnesses and to protect privileged and confidential

information. I reviewed the time records, corrected errors and, in the exercise of

billing judgment, determined that some time should not be charged. I excluded all

time spent on media and reduced some time for researching and drafting where I

believe I may have been inefficient. The time report fairly and accurately

represents the time I spent on this case since the initial fee motion was submitted.

5.

As indicated in my initial declaration in support of Plaintiffs’ fee

motion, I have significant experience litigating cases involving the rights of

lesbians, gay men and transgender individuals. I was co-counsel for transgender

prisoners who brought a successful Eighth Amendment challenge to a Wisconsin

statute that prohibited hormone therapy and sex reassignment surgery for

prisoners diagnosed with Gender Identity Disorder. See Fields v. Smith, 712

F.Supp.2d 830 (E.D. Wis. 2010), aff’d 653 F.3d 550 (2011), cert. den. 132 S.Ct. 1810

(2012). I was cocounsel for the bench trial and coauthored the Seventh Circuit briefs

and the brief opposing certiorari in the Supreme Court in that case. I was also co-

counsel in Helgeland v. Wisconsin Dep’t of Employee Trust Funds, a state

constitutional equal protection challenge to the exclusion of same-sex partners of

state employees from health insurance and other state benefits available to the

spouses of different-sex couples. See 2008 WI 9, 307 Wis. 2d 1 (affirming denial of

intervention). That case involved trial court and extensive appellate litigation of a


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procedural issue and ultimately litigation of a summary judgment motion on the

merits in the Dane County Circuit Court. I also represented amici in the circuit

court and each level of the appeal in a cha llenge to Wisconsin’s domestic

partnership law. See Appling v. Walker, 2014 WI 96, 853 N.W.2d 888. In addition, I

have been involved in a number of cases involving the rights of LGBT and HIV-

positive individuals that were resolved without litigation, including cases involving

foster parenting and Gay-Straight Alliances and gender expression at public

schools. I have also given continuing legal education and public presentations on

the rights of LGBT people, including presenting and moderating a panel on the

future of the freedom to marry and other protections for relationships of same-sex

couples at the Wisconsin State Bar Convention on Wednesday, May 5, 2010. While I

do not specialize in LGBT rights as my colleagues John Knight and James Esseks

do, I have as much or more experience in this area as any other Wisconsin lawyer

who has practiced a comparable number of years.

6. Defendants correctly note that I have not in the past claimed a rate of

more than $300 per hour for litigation against State defendants.

7. However, in all of the cases against the State in which I claimed a rate

of $300 per hour or less either: (1) fee rates were capped by the Prison Litigation

Reform Act at well below $300 (see, e.g., Flynn v. Doyle, 06cv537 (E.D. Wis.), Dkt

No. 275 at 4 (PLRA rate capped at $208.50), Dkt No. 279 (order approving fee

settlement of $950,000); Fields v. Smith, 06cv112 (E.D. Wis.), Dkt No. 246 at 4

(PLRA rate capped at $211.50), Dkt No. 256 (order approving fee settlement of


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$735,000); or (2) my claimed rate of $300 was part of an offer to settle the fees

without litigation. Kissick v. Huebsch, 13cv99 (W.D. Wis.)

8. Moreover, in January 2010, more than five years ago, I claimed a rate

of $325 per hour in Christensen v. Sullivan, 96CV1835 (Milw. County Cir. Ct.), a jail

conditions class action in which rates were not subject to the PLRA’s fee cap. A true

and correct copy of my affidavit filed with that fee petition is attached as Exhibit B.

After Defendants filed an opposition, the parties settled the fee petition for $80,000.

9. I take seriously the courts’ repeated admonitions that fees and costs

should be settled where possible. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)

(“Ideally, of course, litigants will settle the amount of a fee.”; fee requests should

“not result in a second major litigation.”); Blum v. Stenson, 465 U.S. 886, 902 n.19

(1984) (“Parties to civil rights litigation in particular should make a conscientious

effort, where a fee award is to be made, to resolve any differences .”); Estate of Enoch

v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009) (urging “the parties to attempt to settle

the [fee] matter so that the tail can stop wagging the dog”).

10.

Because I have successfully settled nearly all fee disputes in the past,

there has been little incentive to undertake a survey of market rates or keep my

rates up-to-date.

11. My current requested rate of $450 per hour reflects my experience with

civil rights litigation in general, with LGBT rights in particular, and the complexity

and novelty of the issues in this case. This rate is consistent with the rates that

could be charged for my services in the Wisconsin market, as indicated by the


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affidavits of attorneys Jeff Scott Olson and Michael Fox previously submitted in this

case. I have practiced law in Wisconsin since 1997, nearly 18 years ago, so my rate

is also consistent with the Laffey Matrix’s average rate of $460 per hour for

attorneys who have, as I have, 11-19 years of experience. (See Dkt No. 185-2.)

12. I have been the legal director of the ACLU of Wisconsin Foundation

since July 2003. Over the 11 ½ years in this position, one of my primary duties has

been to recruit private cooperating counsel to assist in the litigation of ACLU cases

on a pro bono basis. Our office has only two staff attorneys, so recruiting pro bono

counsel is essential to achieving our mission to protect and advance civil liberties

and civil rights through litigation. With very few exceptions, we recruit private

lawyers to assist with all of our cases.

13. I have been involved in a wide variety of civil rights litigation since

2003 and become familiar with the different staffing needs for different types of

litigation. This knowledge and experience informs my recruitment of cooperating

lawyers. For example, a small firm or solo practitioner with extensive civil rights

experience may be sufficient for litigating a case that will not involve extensive

discovery, a compressed schedule or a trial. Cases involving a great deal of

discovery, extensive motion practice, a compressed time schedule (such as a case

that requires preliminary relief), or likely to culminate in trial generally require the

flexibility of a larger firm that can assign associates to tasks as they arise.

14. As a result of my recruiting role, I have also become familiar with the

private civil rights bar in Wisconsin, as well as the pro bono practices of larger


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Wisconsin firms that do not specialize in civil rights, but will take on civil rights

cases on a pro bono basis.

15. In general, lawyers who practice primarily or exclusively as plaintiff-

side civil rights attorneys are in solo or small firm settings. While many such

attorneys are very competent in civil rights matters, they have significant financial

and human resource constraints that limit the size and complexity of cases they are

able to handle on a pro bono basis.

16. Larger law firms are less constrained by human resource and financial

concerns. While they seldom have attorneys who focus primarily on civil rights, they

often have attorneys with significant civil rights experience and/or significant

knowledge and skills transferrable to civil rights cases. However, larger firms are

also significantly more likely to have direct or subject matter conflicts that prevent

them from taking on ACLU cases against state and local government defendants.

My impression is that conflict problems have been exacerbated by the consolidation

of the large law firm market. Larger firms are also more likely to decline cases

because of sensitivity about involvement in cases that might be perceived as

controversial. This sensitivity is sometimes, but not always, expressed in terms of

concern about alienating existing or potential clients.

17. I always attempt to recruit lawyers from Wisconsin to work on ACLU

of Wisconsin Foundation cases and have generally been successful in doing so.

18. As a recent example, I was able to recruit Attorney A. Steven Porter, a

solo civil rights lawyer in Madison, to work with me on the Kissick v. Huebsch


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litigation mentioned above. That case involved a First Amendment challenge to a

permit requirement for protest activity in the Wisconsin State Capitol Building.

Although there were some factual questions related to the nature of the forum and

its suitability for protest activity, I determined that it was unlikely to be

particularly time consuming, and thus could be handled by me and a solo

practitioner with expertise in civil rights and First Amendment issues.

19.

However, I have not always been able to recruit Wisconsin lawyers to

handle cases that I determine are likely to be complex and/or time-consuming, for

the reasons explained above. In such cases, I have been forced to turn to law firms

from other jurisdictions.

20. For example, in the Flynn v. Doyle litigation mentioned above, we

ultimately secured pro bono counsel from the Chicago office of Jenner & Block, after

a large Wisconsin firm that had expressed interest declined the representation

shortly before we were to file the complaint.

21. More recently, in Frank v. Walker, 11cv1128 (E.D. Wis.), a challenge to

Wisconsin’s voter photo ID law, I was unable to recruit Wisconsin attorneys. I

concluded that this litigation was likely to be time intensive and complex. I was

also aware that two medium sized firms with significant civil rights litigation

experience were already representing plaintiffs in state constitutional challenges to

the ID law and thus would be unavailable for a pro bono engagement for our federal

challenge to the law. I attempted to recruit a small civil rights firm, which declined

because it could not make the time commitment required without payment. I then


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attempted to recruit the Wisconsin office of a large national law firm that had been

involved in other voting rights litigation, but that office also declined due to staffing

limitations. Ultimately, lawyers from Dechert LLP, a national law firm, were

recruited to represent the Frank plaintiffs. Lawyers from Dechert’s New York,

Washington, D.C., and Chicago offices have worked on the case. In the related case

of LULAC v. Deininger, which was tried in conjunction with Frank, lawyers from

Arnold & Porter’s offices in Los Angeles, Washington, D.C., and Denver have

worked on the litigation.

22.

On rare occasions, the ACLU does not recruit pro bono counsel for a

particular litigation, typically when we are co-counseling a case with another non-

profit law firm. This was the case in Planned Parenthood v. Van Hollen, 13cv465

(W.D. Wis.), a challenge to a statute requiring doctors who perform abortions to

have admitting privileges at a nearby hospital. Lawyers from the Reproductive

Freedom Project of the ACLU Foundation in New York and the ACLU of Wisconsin

Foundation represent co-plaintiff Affiliated Medical Services in this litigation.

Planned Parenthood had already recruited a Wisconsin firm to participate in the

case and the ACLU determined that recruiting additional pro bono counsel was not

necessary.

23. I am aware that Wisconsin civil rights lawyers and some larger

general-practice firms have been engaged in a great deal of litigation since 2011

challenging state laws as violations of the state or federal constitution. In addition

to the cases mentioned above, there has been state and federal litigation


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26. Some of my contacts with these lawyers were reflected on my initial

time records supporting this motion for fees. Those records (Dkt No. 166-2, Ex. A)

included five time entries for calls to recruit these firms on December 23, 2013,

January 2, 2014, and January 3, 2014. Those contacts are described as “TC” (for

“telephone call”) to and/or from “JF” and “MG,” with the code “Recruit Vol” or

“Volun Atty.” I also searched my emails for communications with these lawyers and

found emails with “MG” on December 19, 2013, to schedule a call to discuss possible

representation, and emails with “JF” on January 2, 2014, to arrange the call that

took place later that day. I also know that I spoke with MG after December 23,

2014, because it was in that subsequent conversation that he informed me the firm

had declined to be involved.

27. Continued efforts with increasingly less likely Wisconsin prospects

seemed an imprudent investment of time, particularly when a Chicago firm with

marriage litigation experience was waiting in the wings.

I declare under penalty of perjury that the foregoing is true and correct to the

best of my knowledge.

Dated this 19th day of February, 2015 at Milwaukee, Wisconsin.

/s Laurence J. Dupuis

Laurence J. Dupuis

State Bar No. 1029261

American Civil Liberties Union of Wisconsin

Foundation

207 E. Buffalo St., # 325

Milwaukee WI 53202


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Tel: (414) 272-4032

Fax: (414) 272-0182

Email: [email protected]


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Dupuis Decl. Ex. B

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