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State owes nearly $100K in attorneys fees in gender definition case [1]
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Date: 2025-07-14
The Montana Legislature didn’t just pass an unconstitutional law when it supported House Bill 458, a 2023 law which narrowly defined “male” and “female.” It also left taxpayers with a hefty legal tab, according to a ruling from a Missoula County District Court judge.
Judge Shane A. Vanatta of Missoula County, ruled on Monday the State of Montana owes attorneys, including those who work for the American Civil Liberties Union of Montana, nearly $100,000 in the case for having to fight to vindicate — or keep — Montanans’ constitutional rights. Vanatta found that the Legislature’s definition of two and only two biological sexes violated the state’s constitution, while potentially ignoring the science about gender, identity, and biology.
While the law was declared void more than a year ago, lawyer in the case have been at odds about the attorneys’ fees charged by ACLU lawyers and lawyers with a Mountain West law firm, Holland and Hart, which has offices in Billings. The ACLU had asked for nearly $100,000 in fees — or $95,49.63 to be exact — while the state balked at the amount, saying the fees should be between $35,000 and $40,000, according to the state’s expert witness.
Vanatta said that while both sides offered expert testimony from other lawyers, Missoula attorney Charles Hansberry, who had previously worked for Holland and Hart, as well as founding his own law firm, had made the more persuasive arguments and detailed review of the work.
One of the issues in the case was how many attorneys the ACLU had while litigating the case.
“Although there were four attorneys working on the case, (Hansberry) did not see duplication of effort reflected in the billing entries and noted that the state had assigned more than four attorneys to the defense of the case,” the court order said.
The judge also agreed with the ACLU and Hansberry the case needed experienced attorneys in constitutional law, something that is more uncommon for Montana courts and comes with a higher rate because of the specialty within the legal arena.
“Hansberry opined that the litigation was very important in defending the constitutional rights of a minority class in our society that is under significant attack for their gender identity,” the judge said. “He believes that there is a trend of passing unconstitutional legislation by the Montana Legislature to target this minority group; he believed the recovery of attorney fees was appropriate as a price for passing unconstitutional legislation.”
Patrick Risken, an attorney who formerly worked for the Attorney General’s Office, provided testimony for the state, but Vanatta said that Risken’s work was not as “complete” or “detailed,” and even he had acknowledged attorneys used in higher profile constitutional cases in the state often made more than $500 per hour.
“Mr. Risken did not review any time entries for the State of Montana attorneys because they don’t keep track of time expended on cases,” the court order said. “He has no idea how much time was spent by state attorneys on the subject case. He does not believe it is important to know what time was spent by the state given he does not expect an opponent to match time hour for hour.”
Attorneys for the state also argued that plaintiffs, as represented by the ACLU, should be entitled to fewer attorneys fees because originally some of the lawyers had agreed to participate in the case pro bono. The state also argued that paying for the plaintiffs’ attorneys would be essentially compelling speech by the taxpayer — meaning they were forced into agreeing with the courts.
However, Vanatta dismissed both of those arguments in his order.
“First, any award is payable to the attorneys who provided the legal services; what those attorneys do with the money upon receipt is immaterial,” Vanatta said.
State attorneys had argued that Holland and Hart had planned to donate any funds to the ACLU, therefore the state should not be required to pay them since it would result in a larger amount for the organization.
“Second, the taxpayers of the State of Montana are not being completed to say (or not say) anything; rather, they are required to pay fees to the prevailing party’s attorneys who provided legal services. No endorsement of specific speech is required or compelled,” Vanatta said.
The Daily Montanan reached out to the Montana Attorney General’s Office for comment or to see if it plans to appeal. It did not respond to those requests prior to publication.
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[1] Url:
https://dailymontanan.com/2025/07/14/judge-state-owes-nearly-100k-for-case-centering-on-male-and-female-definitions/
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