Marisa N. Pavan, et al. v. Nathaniel Smith

In Pavan v. Smith, 137 S. Ct. 2075, 2076 (2017) (per curiam), this Court summarily reversed a decision of the Arkansas Supreme Court that had upheld, notwithstanding Obergefell v. Hodges, 135 S. Ct. 2584 (2015), a state law that denied married same-sex couples equal access to a right afforded opposite-sex couples, namely to have the birth mother’s spouse listed as the second parent on their child’s birth certificate. The Court remanded in Pavan to the Arkansas Supreme Court “for further proceedings not inconsistent with this opinion.” 137 S. Ct. at 2079. On remand, the trial court enjoined respondent from denying same-sex spouses equal rights to be listed on their children’s birth certificates. Petitioners are indisputably prevailing parties within the meaning of the fee-shifting provision, 42 U.S.C. 1988(b). Consistent with Arkansas procedural rules, petitioners filed a motion in the Arkansas Supreme Court for an award of appellate attorney’s fees. On January 4, 2018, the Arkansas Supreme Court issued an order stating, without further explanation: “Appellees’ motion for appellate attorney’s fees and expenses is denied.” The question presented is: Whether, when this Court has summarily reversed a state supreme court’s denial of a constitutional right previously recognized by this Court, that state court may subsequently deny the prevailing party’s application for attorney’s fees under 42 U.S.C. 1988 without providing any basis for its denial. (I)