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Defeated in court, county fights paying other side's legal expense

Jun 15, 2012 Staff and wire reports

Fremont County is still balking at paying legal fees for a group of American Indians whose court challenge forced the county to abandon its system of at-large voting for commissioners.

Five members of the Northern Arapaho and Eastern Shoshone tribes won a ruling from U.S. District Judge Alan B. Johnson of Cheyenne in 2010 that at-large voting in the county violated the federal Voting Rights Act by diluting the Indian vote. A federal appeals court early this year rejected Fremont County's appeal.

On appeal, the county didn't contest Johnson's finding that at-large voting violated the law. Instead, it challenged the judge's rejection of its proposals to remediate the violation by creating a single, Indian-majority district centered on the Wind River Indian Reservation while continuing with at-large voting in the rest of the county.

In rejecting the county's plans, Johnson wrote that they "appear to be devised solely for the purpose of segregating citizens into separate voting districts on the basis of race without sufficient justification, contrary to the defendants' assertions."

Lawyers for the tribal members this month asked Johnson to award more than $85,000 for their work on the appeal. The plaintiffs' 2010 request for more than $880,000 for legal work through the trial is still pending with the judge.

Fremont County then filed papers with Johnson arguing the plaintiffs' bills on the appeal are too high and should be reduced.

Laughlin McDonald, an Atlanta lawyer and head of the ACLU's Voting Rights Project, was lead attorney for the plaintiffs. He's billing for more than 134 hours of work on the appeal at a rate of $425 an hour, for a total of more than $57,000. The plaintiffs' three Lander lawyers are billing $250 an hour.

Jodi Darrough, deputy Fremont County attorney, filed a response with Johnson saying Fremont County doesn't dispute that the plaintiffs won the case and are entitled to their legal costs and fees. However, she says they should be paid at a rate customarily charged in Wyoming courts, which she said would limit McDonald to $300 an hour while capping the local lawyers at $200.

McDonald said he believes the law is clear that he's entitled to be paid at prevailing rates for lawyers in Atlanta, which are higher than in Wyoming. He said the plaintiffs were justified in hiring out-of-state lawyers.

"I don't think there's any evidence that any in-state lawyer has ever filed a Section Two vote-dilution challenge on behalf of American Indians," McDonald said. He was referring to the section of the Voting Rights Act that prohibits voting practices or procedures that discriminate on the basis of race or other factors.

Fremont County was represented at trial and on appeal by the Mountain States Legal Foundation, a Colorado law firm that typically represents conservative causes. While the foundation didn't charge the county for its legal work, the county was responsible for witness fees, other legal work and expenses that topped $200,000 for the trial phase.

The Wyoming Local Government Liability Pool insured Fremont County through the trial and would apparently also be responsible for paying the plaintiffs' $880,000 in trial legal fees. The pool collects money from some 400 governmental entities around the state to handle their collective legal expenses.

Pool Executive Director Mark Pring said this week that the pool refused to cover Fremont County when the county decided to appeal Johnson's decision.

Julie Freese, Fremont County clerk, said this week that the county has no intention of appealing to the U.S. Supreme Court. "We're moving on," she said. "We've redone our districts, and we've got our elections gearing up."

Freese said she didn't know how much the county has paid for its own legal fees on the appeal.

McDonald said essentially that Fremont County faced a steep learning curve in the case.

"We file a lot of these Section Two cases," he said. "The problem is that this was the first one filed on behalf of tribal members in Wyoming. But in other states where we filed a lot of them, a lot of these jurisdictions realize that they're probably going to lose."

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