Case: 3:14-cv-00064-bbc Document #: 186 Filed: 02/09/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF, et al.,

Plaintiffs,

v.

Case No. 14-CV-00064

SCOIT WALKER, et a!.,

Defendants.

DECLARATION OF RICHARD M. ESENBERG

I, Richard M. Esenberg, pursuant to 28 U.S.C. 1746. hereby declare as follows:

1.

I either have personal knowledge of the facts stated in this declaration or

derive them from sources reasonably relied upon by experts in my field.

2.

I am an attorney admitted to practice before the Supreme Court of the

United States, the Supreme Court of Wisconsin, the United States Court of Appeals for
the Seventh Circuit and the United States District Courts for the Eastern and Western
Districts of Wisconsin. I have been admitted to practice pro hac vice in numerous federal
district and state courts throughout the United States.

3.

I am the founder, president, and general counsel of the Wisconsin Institute

for Law & Liberty ("WILL"). I have been with WILL since 2011.
4.

I graduated from Harvard Law School, magna cum laude, in 1981, where I

served as an editor of the Harvard Law Review. I hold a bachelor of arts, summa cum
laude, in political science from the University of Wisconsin-Milwaukee.

Case: 3:14-cv-00064-bbc Document #: 186 Filed: 02/09/15 Page 2 of 8

5.

I worked at Foley & Lardner LLP in Milwaukee, Wisconsin from 1981 to

1997, flrst as an associate and then as litigation partner, where I was trial and appellate
counsel in numerous public-law cases. Throughout my career, my practice has focused
on civil litigation in state and federal appellate courts in Wisconsin and throughout the
nation. Among the cases I have handled are the Metropolitan Milwaukee School
desegregation case, redlining cases, prisoners' civil rights litigation, cases brought under
the Voting Rights Act and a variety of constitutional challenges.
6.

In December of 1997, I left Foley & Lardner to become Vice President,

General Counsel and National Trial Attorney for Rite Hite Holding Corporation, an
international manufacturer of, among other things, dock and door systems, based in
Brown Deer, Wisconsin. In that capacity, 1 supervised and participated in litigation
throughout the country. I reviewed and approved the billings of lawyers engaged in
litigation throughout the country and, in some instances, overseas.
7.

I currently teach as an adjunct faculty member at the Marquette University

Law School and was previously on the faculty for four years. I have taught Civil
Procedure, Employment Law, Products Liability, Law Governing Lawyers, Complex
Litigation, Law and Theology, Election Law and a course on the Wisconsin Supreme
Court and the state constitution. (I developed the latter three courses.) My scholarship
concentrated on law and religion, election law, the regulation and nature of public
discourse, and the Wisconsin Constitution.
8.

I founded WILL in 2011. It is a public interest legal center and think tank

promoting the public interest in individual liberty, economic freedom, constitutionally

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Case: 3:14-cv-00064-bbc Document #: 186 Filed: 02/09/15 Page 3 of 8

limited government and the rule of law and a robust civil society. Other than religious
liberty, WILL does not involve itself in "social issues." As an organization, it has no
position on the issues raised in this case (about which its staff and board members may
disagree) and has declined requests to become involved in litigation involving the
constitutionality of laws limiting marriage to opposite sex couples.
9.

In my practice at WILL, I have focused on civil rights and public-interest

litigation, including cases under 42 U.S.C. 1983. Among the latter cases are actions
challenging local ordinances and actions for violating the First and Fourth Amendments
and state campaign finance regulations for violating the First and Fourteenth
Amendments to the United States Constitution. Recent cases include Vanden Boogart v.

Christensen, No. 12-CV-491 (E.D. Wis.); Fred M Young, Jr. v. Timothy Vocke, et al. ,
No. 13-CV-635 (E.D. Wis.); and CRG Network v. Thomas Bar/and, et al. , No. 14-CV719 (E.D. W.is.). In addition to actions brought under 42 U.S.C. 1983, WILL frequently
litigates under other statutes providing for court awarded fees, most notably Wisconsin's
open records and open meetings laws.
10.

Given the nature of WILL' s practice, we believe that the award of

attorneys' fees is an important and appropriate aspect of public interest litigation. On the
other hand, we also are aware that fee awards are paid by taxpayers who have generally
not benefitted from - indeed have often been harmed - by the illegal government
practices subject to challenge. For this reason and in keeping with the guidance provided
by the courts, we periodically conduct research as to billable rates charged in Wisconsin
and set "book rates" to be used when we are potentially entitled to fees.
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11.

My hourly billing rate and the rates charged for the time of other WILL

attorneys and staff is fixed in relation to the rates charged by attorneys of similar skill,
reputation, and experience in the Wisconsin legal community. WILL's hourly billing
rates are revised from time to time.
12.

My billing rate and the billing rates of other attorneys and staff at WILL

have been adjusted periodically to account for the increasing skill, reputation, experience,
and ability of the personnel involved and the increasing market rates charged in the
community for the services of similarly qualified personnel.
13.

Since January 1, 2013, my standard hourly billing rate has been $375.00

per hour for the civil rights litigation that I have handled.
14.

WILL's current standard hourly rate for the services of Brian McGrath,

senior counsel with WILL, is $375.00 per hour. Attorney McGrath has been in practice
as senior counsel with WILL since May, 2013. Prior to that time, be was a litigation
partner with Foley & Lardner LLP for 30 years. He handled general commercial
litigation while at Foley & Lardner and is a former chairperson of the firm 's Milwaukee
Litigation Department.
15.

In 1982, Attorney McGrath received his juris doctor degree from Harvard

Law School. He is a 1979 graduate of the University of Wisconsin-Milwaukee.

16.

Attorney McGrath has been peer review rated as AV Preeminent, the

highest perfonnance rating in Martindale-Hubbell's peer review rating system, and he is

also listed in Chambers USA: America 's Leading Business Lawyers (2005-12) and was
selected in the 2007-11 Wisconsin Super Lawyers lists. He was also selected by his
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peers for inclusion in The Best Lawyers in America in the area of commercial litigation,
franchise law.
17.

WILL' s current standard hourly rate for the services of Tom Kamenick,

who is employed by WILL as associate counsel, is $225.00 per hour. Attorney Kamenick
joined WILL at its founding in the summer of20 11. He graduated magna cum laude from
Marquette Law School in 2009, was an editor of the Marquette Law Review, and was
judicial law clerk to Wisconsin Supreme Court Justice Michael J. Gableman for the 200910 term. Attorney Kamenick has handled civil rights litigation while at WILL.
18.

WILL's rates have not yet been adjusted for 20 15. They will be but. in no

instance, would I expect the increase in book rate to exceed $75.00/hr.

19.

I understand that the lawyers for the plaintiffs in this case are seeking the

following rates and have made a claim for the following billed hours:

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Case: 3:14-cv-00064-bbc Document #: 186 Filed: 02/09/15 Page 6 of 8

Attorney Name

Mary Anderson, Mayer Brown

Paige Becker, Mayer Brm'\Tll
Timothy Bishop, Mayer Brown
Frank Dickerson, Mayer Brown
Laurence Dupuis, ACLU WIF
James Esseks, ACLUF
Hans Germann. Mayer Brown
Gretchen Helfrich, Mayer Brown
Gretchen Helfrich, Loevy & Loevy
Marc Kadish, Mayer Brown
Rebecca Klein, Mayer Brmn1
John Knight, ACLUF
Linda Shi, Mayer Brown
Kristin Silverman, Mayer Brown
Maye1 Brown paralegals & support
Totals
20.

Hours
140.50
7.75
81.75
307.25
436.79
126.30
62.00
525.25
25.50
13.50
118.00
-104.50
17.00
27.25
99.75
2393.09

Rate
$425.00
$285.00
$980.00
$555.00
$450.00
$650.00
$705.00
$565.00
$300.00
$555.00
$400.00
$450.00
$480.00
$595.00
variable

Total
$

s
$

$
$

$
$
$
$
$
$

$
$
$
$

59,712.50
2.208.75
80,115.00
170,523.75
196,555.50
82.095.00
43,710.00
296,766.25
7,650.00
7,492.50
56,640.00
182,025.00
8,160.00
16,213.75
27,755.00
1,237,623.00

Based upon my personal knowledge - and WILL's review - of the hourly

rates charged by attorneys who litigate civil rights and other complex civi l litigation in
this litigation market, it is my opinion that the rates sought by Plaintiffs' lawyers in this
action are generally outside the range of hourly rates charged to paying clients by
attorneys of similar skill, reputation, and ability in the Wisconsin legal community.
2 1.

For example, I recently reviewed the fee application of attorneys' fees for

the Plaintiffs in Wisconsin Right to Life v. Barland, an action that resulted in invalidation
of numerous provisions of Wisconsin campaign finance law. The rates sought by the
Plaintiffs were as follows:

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Attorney

Years Experience

Rate

James Bopp, Jr.

41

$400 I hour

Randy Elf

16

$325 I hour

Michael Dean

27

$375 I hour

Richard E. Coleson

27

$375 I hour

The rate sought by Attorney Bopp is particularly instructive. Mr. Bopp is one of the
country's preeminent lawyers in the area of campaign fmance. He - and Messrs. Elf and
Coleson- have been involved in many of the major campaign finance cases heard by the
United States Supreme Court and lower federal courts over the years.
22.

Based upon our experience and review of rates in the Milwaukee market for

complex litigation, my understanding is that rates for associates are in the range $ 175-400
per hour, young partner rates are in the range of $350-500 per hour and senior partner
rates are in the range of$475-675 per hour. Very few partners in the Mil waukee market
would command a rate of $600 per hour or higher. There is overlap in these numbers
because different firms promote associates to partners earlier than others and different
firms increase their rates for partners earlier than others. These ranges are not the result of
a scientific survey of firm rates, but are instead based upon anecdotal information we
have obtained at WILL.
23.

In my opinion, the hourly rates sought by Plaintiffs' counsel in this case,

and in particular by the Chicago Mayer Brown attorneys who worked on this case. are

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Case: 3:14-cv-00064-bbc Document #: 186 Filed: 02/09/15 Page 8 of 8

much higher than rates that would be expected to be charged to paying clients for civil
rights litigation work in the Wisconsin legal market.

I declare under penalty of perj ury that the foregoing is true and correct.

Subscribed and sworn to before me

thlsdJYday of January, 2015.

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