Lawyer wants $275 per hour for Constitution Party case

By Steve Korris | Aug 6, 2009


ELKINS – Lawyer Joseph Wallace of Elkins, winner of a constitutional contest on behalf of the Constitution Party, seeks $275 an hour for his services.

Wallace persuaded U.S. District Judge John Preston Bailey to declare that under the U.S. Constitution, the West Virginia Legislature can't prohibit soliciting in state parks.

Bailey ruled that Stonewall Jackson Lake State Park rangers violated the rights of Constitution Party members by ordering them not to circulate petitions in the park.

A prevailing party in a constitutional claim can claim attorney's fees from the loser, and Bailey asked Wallace to submit a bill.

Wallace billed 79.8 hours at $275 an hour, for a total of $21,945.

Another lawyer for the Constitution Party, Douglas McKusick of the Rutherford Institute in Charlottesville, Va., billed 72.3 hours at $200 to $250.

West Virginia Division of Natural Resources Director Frank Jezioro, the loser in the contest, argues that Wallace doesn't deserve $275.

On July 31, Jezioro's lawyer, Keith Gamble of Morgantown, urged Bailey to slash Wallace's fee.

Gamble argued that Wallace shouldn't charge a higher rate than McKusick, who he described as a First Amendment expert.

"There is a discrepancy between the amount of first amendment experience that counsel possesses, the amount of hours expended by each individual counsel, and the hourly rate that each individual counsel is asking this court to award them," Gamble wrote.

He wrote that he sought mediation and tried to settle, but his efforts failed.

"It should be noted, this commentary is not designed to question counsel's actions and/or intentions," Gamble wrote.

"Mr. Wallace has been respectful and accommodating in this matter and this counsel does not suggest anything negative towards any actions of opposing counsel," he wrote.

"However, when considering the award of fees in this matter, it should be noted that the fees and/or costs associated with this case might and/or should have been significantly decreased if the parties had engaged in meaningful resolution talks," he wrote.

Jezioro has asked the U.S. appellate court in Richmond to overturn Bailey's ruling that the ban on solicitation violates the U.S. Constitution.

At a July 9 conference, Bailey asked if he should rule on the Constitution Party's motion for fees or wait for resolution of the appeal.

"Both parties agreed that if the Court were to rule on the motion, it would expedite the appeal process in certain respects," Bailey wrote on July 13.

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