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When the New Jersey Legislature banned so-called “partial birth abortions” in 1997, it did so by overriding the veto of then-Gov. Christine Todd Whitman who said she considered the law unconstitutional. So when the law was challenged in federal court by Planned Parenthood and a group of doctors, it was no surprise that Whitman’s administration refused to defend it. The Legislature quickly intervened in the case and hired its own lawyers, vowing to vigorously defend the constitutionality of the law. Ultimately a federal judge struck the law down and the Legislature failed in its bid to have the ruling overturned on appeal. Now the Legislature has lost another major battle in the case over the issue of whether it can be held liable for more than $500,000 in attorney fees. The 3rd U.S. Circuit Court of Appeals has ruled that the Legislature is not immune from such a judgment since its decision to intervene in the case transformed its role. The case is Planned Parenthood of Central New Jersey v. Attorney General of New Jersey. “While legislatures enjoy immunity for promulgating statutes, it makes little sense to provide them with this immunity when they step out of that role, as the New Jersey Legislature did here when it intervened to defend the constitutionality of the act,” Chief 3rd Circuit Judge Edward R. Becker wrote. “We therefore hold that when a legislature steps out of its role and intervenes to defend a piece of (its) legislation, which the executive branch is not willing to defend, it becomes the functional equivalent of a defendant in the case and may be liable for attorneys’ fees,” Becker wrote in an opinion joined by 3rd Circuit Judges Samuel A. Alito and Marjorie O. Rendell. But the decision also includes some victories for the Legislature because the court agreed that U.S. District Judge Anne E. Thompson of the District of New Jersey was too generous and should have slashed some of the requested $522,922 in fees. Significantly, the 3rd Circuit found that Thompson erred by paying the plaintiffs’ lawyers for the 4.5 hours they spent “observing” the 3rd Circuit prior to their oral argument. “We will not permit compensation for observation of the court to which argument will be made. While such observation may be generally instructive, it is the kind of thing that should be part of a lawyer’s general experience, not charged to a specific case,” Becker wrote. Likewise, the court found that Thompson awarded too much for the 25.5 hours that the plaintiffs’ lawyers spent in moot court practices of the 3rd Circuit argument. “Even assuming that an oral argument is 30 minutes per side, 25.5 hours would enable a lawyer to practice his argument over 50 times. We assume that litigators have a baseline competency in oral advocacy that does not require such extensive rehearsal at the possible expense of an opposing litigant,” Becker wrote. The appellate panel also ordered Judge Thompson to revisit a slew of issues, such as the appropriate hourly rate to be paid to the winning lawyers, and whether some of the tasks they performed should have been delegated to secretaries, paralegals or junior associates, or at least compensated at a lower rate. But overall, the 3rd Circuit’s ruling was a major victory for the plaintiffs because it rejected two arguments by the Legislature that urged the court to deny the fees completely. In its first argument, the Legislature said Thompson erred by allowing the plaintiffs to file a fee petition beyond the 14 day limit imposed by Rule 54(d) of the Federal Rules of Civil Procedure. Thompson relied on a local rule of the District of New Jersey that allows for the prevailing party to seek an extension of time to file a fee petition. The Legislature’s lawyers argued on appeal that Thompson had erred because Rule 54(d) allows for exceptions to the 14-day time limit only when “provided by statute or an order of the court.” The local rule, they said, cannot qualify as an “order of the court.” They also argued that District of New Jersey Local Rule 54.2(a) conflicts with Rule 54(d)(2)(B), and because a local rule may not conflict with an applicable federal rule, the New Jersey local rule is invalid. Becker disagreed, saying “every Court of Appeals to have addressed the issue has decided that a local rule extending the time to file a motion for fees is a ‘standing order,’ and, therefore, not inconsistent with the federal rules.” Citing precedents from the 5th, 7th, 9th and 11th circuits, Becker found that the logic of considering such local rules to be standing orders makes sense. “Consideration of fee petitions is often an extremely involved and time-consuming exercise that can be burdensome to a busy district court, and district courts ought to have the flexibility to control their own calendars with respect to such matters,” Becker wrote. On the issue of the Legislature’s immunity, Becker found it would be inappropriate to extend it to protect against awards of attorney fees when a legislature opts to take on the task of defending a law against a court challenge. “While legislative immunity protects the Legislature in its legislative capacity — i.e., for promulgating the act at issue in this case — we conclude that the Legislature is not entitled to immunity in this case because defending the act was an act outside of its legislative capacity,” Becker wrote. In the federal system, Becker said, the U.S. attorney general defends the constitutionality of an act of Congress whenever a reasonable argument can be made in defense of the act. If the attorney general is unable to defend an act of Congress, the Senate legal counsel is notified and may undertake the representation. “If New Jersey had followed a similar regime and the defense of the statute at issue had been performed by the state Attorney General, the state would not be immune from fees,” Becker wrote. “However, New Jersey is not required to follow the federal scheme. It is not obligated to maintain a separation of powers mirroring that of the federal government. It is free to assign what are generally regarded as executive functions to the legislature, and that, in effect, is what has occurred in this case and the other cases noted above in which the Legislature undertook the task of defending the constitutionality of a state law,” Becker wrote. “But New Jersey cannot escape an obligation under federal law to pay attorneys’ fees by assigning this function to the Legislature.” The Legislature was represented in the appeal by attorneys Richard F. Collier Jr. and David J. Treibman of Collier Jacob & Mills in Somerset, N.J. The plaintiffs were represented by attorneys Leon Friedman of New York; Dara Klassel of Planned Parenthood Federation of America’s New York office; Talcott Camp and Louise Melling of the Reproductive Freedom Project of the American Civil Liberties Union Foundation in New York; and Ed Barocas of the American Civil Liberties Union of New Jersey Foundation in Newark, N.J.

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