The state legislature has set aside $8 million to defend lawsuits challenging the litany of controversial laws passed by the Republican majority in recent years, according to the Associated Press.

The litigation list is long and includes several state and federal actions seeking a rejection of voting maps adopted in 2011 and a reversal of voting law changes enacted in 2013, as well as challenges to the state’s same-sex marriage ban, the private school voucher program and the “Choose Life” license plate offering.

Funds for litigation costs go to private counsel retained to represent state officials in court, typically the job of the Attorney General. In some instances though, Attorney General Roy Cooper has declined to represent the state in cases which his office has determined are indefensible.  For example, after the 4th U.S. Circuit Court of Appeals in Richmond ruled that a Virginia gay marriage ban violated the U.S. Constitution, Cooper stated that his office would no longer defend the similar North Carolina ban in court. It was time to stop fighting court battles the state could not win, he said at the time.

In other instances, Republican lawmakers have retained private counsel even while Cooper was likewise defending the state, voicing concerns that he wouldn’t adequately represent their interests.

The primary beneficiary of the General Assembly’s largess has been the Raleigh office of Ogletree Deakins Nash Smoak & Stewart, with attorneys from that firm representing state officials in several lawsuits, including the voting rights and redistricting cases. That’s the same firm that also advised Republican leaders during the drafting of the 2011 redistricting plan.

Outside bills since summer 2014 alone exceeded $3 million, according to the AP — $2.9 million of that incurred by Ogletree Deakins to defend the voting rights cases.

Those cases are far from over, as dispositive rulings from the federal district courts remain pending and appeals to the Fourth Circuit and the U.S. Supreme Court are likely to follow. The same is true for the redistricting cases in state and federal courts, and new lawsuits challenging other controversial laws are on the horizon.

As the AP points out, a challenge to the state’s “magistrate recusal” law, which allows magistrates to opt out of performing marriages based upon a “sincerely held religious objection” to gay marriage, could be filed in the coming months.

According to Roy Cooper’s office,  the Attorney General has defended state laws in at least 15 cases and didn’t need the help of costly outside counsel.

“Our office hasn’t requested that the General Assembly hire any of the private lawyers they’ve been paying, and we think it’s a waste of taxpayer dollars to pay outside lawyers to do the work we’re already doing,” Cooper’s spokesperson Noelle Talley said in a statement.



Add another $45,000 to the tab that legislative leaders ran up in attorneys fees and costs chasing their same-sex marriage opposition in the courts,  even in the face of rulings rejecting marriage bans as unconstitutional.

In addition to the fees and costs incurred by the leaders’ own attorneys, taxpayers will now also be on the hook for those additional dollars — a fee award which court fillings this week show the leaders agreed to as as a result of their involvement as intervenors in those cases.

The award goes to the Amendment One challengers as the prevailing parties to a successful civil rights claim under 42 U.S.C. 1983.

Then Speaker Thom Tillis and Senate President Phil Berger jumped into the cases in October 2014 after the federal appeals court in Richmond laid down the law in the circuit, holding in the Virginia case, Bostic v. Rainey, that state bans on same sex marriage were unconstitutional.

Just hours after that Bostic ruling in July 2014, Attorney General Roy Cooper indicated that his office would no longer defend North Carolina’s ban, saying that it was time “to stop making arguments we will lose.”

And on October 6, 2014, the U.S. Supreme Court refuse to review Bostic, making the appeals court ruling the governing law in North Carolina.

Despite those clear signals from the appeals and Supreme Courts, the self-professed fiscal conservatives took up the torch on October 9, when they asked U.S. District Judge William Osteen to allow them to intervene in the two challenges pending before him.

Osteen declared Amendment One unconstitutional pursuant to the Bostic decision on October 14, 2014, but then granted the leaders’ intervention request for purposes of appeal.

They then pursued that appeal until the U.S. Supreme Court ruled in late June, 2015 in Obegefell v. Hodges that marriage bans across the country were unconstitutional.

The cost for that fruitless appeal was $56, 476, but the challengers have agreed to accept $44,501.36.

They are also separately seeking nearly $255,000 from the state for fees and costs incurred as a result of its defense of Amendment One.



As same-sex marriage bans continue to fall in the courts, states on the losing side of the battle are finding themselves on the hook for attorneys’ fees incurred by proponents of marriage equality, to the tune of more than $800,000 thus far, according to Zoe Tillman in this National Law Journal post.

And requests for millions more are still pending in cases making their way through the appellate courts, Tillman notes.

In the cases pending here, the requests themselves have been put on hold while appeals play out.  State Senate President Phil Berger and former House Speaker Thom Tillis intervened in those cases to appeal district court judgments overturning the state’s same-sex marriage ban, following the Fourth Circuit’s ruling on a similar ban in Virginia in Bostic v. Schaeffer.

But several of the attorneys in the Bostic cases are recovering fees.  Says Tillman:

After the Fourth Circuit declared Virginia’s marriage ban unconstitutional, officials reached fee agreements with the plaintiffs’ lawyers. Virginia will pay $60,000 to lawyers in Harris v. Rainey, a class action joined with another case, Bostic v. Rainey, on appeal. A spokesman for the attorney general’s office said the terms of an agreement with the Bostic lawyers were still being finalized.

In Harris, Jenner & Block worked with the ACLU of Virginia and Lambda Legal. Attorney fees will go to the nonprofit lawyers. In Bostic, Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner were co-lead counsel. Olson argued in the Fourth Circuit. Representatives from Gibson Dunn and Boies Schiller declined to comment about fees.




Shortly after Judge Osteen gave plaintiffs until Monday to respond to intervention of legislative leaders in one same-sex marriage case in Greensboro, a federal judge in the Western District struck down a same-sex marriage ban in a case brought by the United Church of Christ and has denied legislative leaders’ request for intervention. QNotes reports:

A federal judge in North Carolina’s Western District has issued an order permanently prohibiting defendants in a United Church of Christ lawsuit against North Carolina’s anti-LGBT amendment from enforcing the ban. Additionally, the judge denied Republican state leaders’ motion to intervene in the case.

U.S. District Court Judge Max O. Cogburn, Jr., issued his two orders shortly after 5 p.m.

“Defendants are PERMANENTLY ENJOINED from enforcing such laws to the extent these laws prohibit a person from marrying another person of the same gender, prohibit recognition of same-sex marriages lawfully solemnized in other States, Territories, or a District of the United States, or seek to punish in any way clergy or other officiants who solemnize the union of same-sex couples,” Cogburn wrote.

More from QNotes


Equality NC has information for LGBTQ couples looking to get married here:


Thursday night after Tillis and Berger filed a motion seeking 8 days to compile legal arguments against marriage equality, Chief U.S. District Court Judge William Osteen Jr. denied the legislators’ request for delay, giving them instead a deadline of noon Friday to lay out their case. WRAL reports:

Chief U.S. District Court Judge William Osteen Jr. set a noon Friday deadline for them to lay out their legal arguments in the case, rejecting their request to delay any decision in the matter until at least Oct. 17.
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