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The Daily Record's law news blog

Maryland could be on hook for fees, costs in redistricting case

Police office guards the main entrance to the Supreme Court in Washington, Tuesday, Oct. 9, 2018. A Supreme Court with a new conservative majority takes the bench as Brett Kavanaugh, narrowly confirmed after a bitter Senate battle, joins his new colleagues to hear his first arguments as a justice. (AP Photo/Pablo Martinez Monsivais)

Police office guards the main entrance to the Supreme Court in Washington, Tuesday, Oct. 9, 2018. A Supreme Court with a new conservative majority takes the bench as Brett Kavanaugh, narrowly confirmed after a bitter Senate battle, joins his new colleagues to hear his first arguments as a justice. (AP Photo/Pablo Martinez Monsivais)

Maryland might have to do a lot more than just redraw a congressional district if Republican voters ultimately prevail in their lawsuit challenging a western Maryland district as having been drawn so severely in favor of a Democrat’s election as to violate the GOP’s right to political association.

The state, and thus its taxpayers, might be on the hook for the substantial legal fees and court costs the winning GOP voters could receive if they were to be victorious in their constitutional-rights case.

The Republicans prevailed Nov. 7 before a three-judge federal district court panel, which ruled that Maryland’s Democratic-led government violated the voters’ First Amendment right and ordered the state to redraw the 6th Congressional District. The panel has stayed its ruling and order to permit Maryland Attorney General Brian E. Frosh to appeal the decision to the U.S. Supreme Court.

Noting the litigation remains pending, attorneys for the GOP voters on Friday asked the three-judge panel to hold in abeyance all proceedings related to their claim for fees and court costs until and in the event that they ultimately win. The case, first filed in 2013, will be making its third trip to the Supreme Court – and that’s just the start of what the claim for fees and costs would be based upon.

“This case has been pending for longer than five years,” the voters’ lead attorney, Michael B. Kimberly, wrote to the panel.

“It has involved two motions to dismiss  and a lengthy hearing on the second motion; protracted and contentious discovery, including more than 20 depositions and substantial motions practice and a hearing on legislative privilege; a motion for injunctive relief with a hearing; and cross-motions for summary judgment with scores of evidentiary exhibits,” added Kimberly, of Mayer Brown LLP in Washington. “In light of this lengthy history, plaintiffs’ motion for fees and bill of costs will be significant undertakings, and the amounts they will seek will be large. Litigating the many issues that are likely to arise with respect to fees and costs will therefore require the expenditure of substantial additional resources by both the parties and the court.”

The Supreme Court’s decision on Maryland’s appeal, therefore, will have “a significant effect” on the fees and costs sought by the Republican voters – and even whether they will have a claim for the compensation, Kimberly wrote.

“If the Supreme Court affirms, plaintiffs will have to file amended papers seeking additional fees and costs for the appeal, in addition to those for the significant remedial proceedings ordered by this court,” Kimberly told the three-judge panel. “If the Supreme Court reverses, plaintiffs may not be entitled to fees or costs at all.”

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