State says ACLU charged too much challenging unconstitutional case

The ACLU of Montana says it should be compensated for the legal work in proving a law that strictly classified residents as either male or female was unconstitutional, even though attorneys for the state claim the attorneys fees are too much. 

The fees stem from Dandilion Cloverdale et al. vs. Austin Knudsen et al, which sought to find Senate Bill 458 as unconstitutional. That law also classified state residents as either male or female, based solely on reproductive capacity.

During the course of that case, the ACLU enlisted Holland and Hart, a large Mountain West law firm that has an office in Billings, for part of the legal work. Holland and Hart also had a separate agreement with the individuals represented in the case, who they performed pro-bono legal work for.

Judge Shane Vannatta oversaw the arguments on Monday. The ACLU is seeking attorney’s fees for both itself and Holland and Hart. 

Numerous bills looking to restrict legal protections for LGBTQ+ people have been found unconstitutional by state courts during the past few years, causing attorneys for the state to fight on behalf of the Legislature’s eventually doomed laws. 

Reforming the state’s judiciary branch was a key focus of the Legislature in 2025, but very few pieces of Republican-backed legislation made it to the governor’s desk.

An expert witness, Missoula attorney Charles Hansberry, who was called during Monday’s hearing, said seeking these fees are, in part, to send a message to the Legislature. Hansberry, who formerly worked for Holland and Hart, mostly deals with large commercial cases, he said. 

“I think it’s important to set the precedent that if the Montana Legislature is going to just pass unconstitutional acts, there’s going to be a price associated with that,” Hansberry said in response to a question from ACLU lawyer Alex Rate. “I also think that it’s important for the ACLU to recover fees in this situation, because it is just step one in this overall trend of attacks on that population. It’s one of the most marginalized populations in the state.”

Hansberry also gave information on the rates lawyers are charging in the state, saying it’s increased as more large firms open offices in Montana. He also noted that following the COVID pandemic, rates have increased as well.

ACLU lawyers said in court there is a stipulation in their agreement that firms can seek money if they so choose. In this case, the money that Holland and Hart collected from their attorney’s fees would be donated back to the ACLU, Rate said while on the stand.

State lawyers called that “double dipping” and also said it was a constitutional violation, saying it was “compelled speech,” because of taxpayer money supporting the ACLU.

“If you award, then ACLU is double dipping, because the agreement is that they’re going to get that donated back to them so they would get their attorneys fees that they charge, and then so, so virtually, what they’re making is roughly about $500 an hour in attorney’s fees,” said Thane Johnson, a state lawyer. “That’s completely unreasonable.”

Patrick Risken, a former assistant attorney general, was brought as a witness by the state and said the ACLU was seeking around $100,000. He estimated they should get between $30,000 and $35,000.

Brianne McClafferty, a lawyer for Holland and Hart, said what the ACLU was seeking was reasonable when considering the importance of the case. They’ve been mostly successful, she added.

“Success is not possible without competent, skilled, capable counsel,” McClafferty said. “The rates that were charged in this case, I believe, as the evidence has shown through Mr. Hansberry’s testimony and through the declarations that have been submitted in this case, were reasonable in light of the importance of this case and the means that this case required.”