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Charter school religion suit defendants awarded costs

November 16, 2018

After dismissing a First Amendment complaint that alleged a Monroe County charter school violated religious protection laws, a district court judge has awarded the Indiana superintendent of public instruction nearly $1,500 in costs and is considering an award of more than $1,800 for the school.

Defendants Jennifer McCormick, who was sued in her official capacity as state superintendent, and Ellettsville’s Seven Oaks Classical School, Inc., sought more than $3,300 in costs after prevailing on summary judgment in Indiana Coalition for Public Education – Monroe County and South Central Indiana, Inc. v. Jennifer McCormick, 1:17-cv-01295. The Coalition for Public Education filed the suit in April 2017, challenging the portion of the Indiana Charter School Act that allowed Grace College, a religious private college in Winona Lake, to authorize a charter for Seven Oaks. 

Specifically, the coalition — which is comprised of Monroe County public schoolteachers and employees who support traditional public schools — alleged the act violates the First Amendment Establishment Clause by allowing religious schools to authorize charters and the Indiana Constitution by allowing religious authorizers to receive up to 3 percent of public funds diverted to their charter schools. After initially letting the case proceed last November, Indiana Southern District Chief Judge Jane Magnus-Stinson dismissed the complaint for lack of subject-matter jurisdiction.

Seven Oaks then sought $1,853.34 and McCormick sought $1,490.74 in costs, including the costs of depositions, pro hac vice fees and docketing fees. McCormick’s costs specifically targeted deposition fees, and Magnus-Stinson agreed to award $1,490.74 to each defendant, though only to the extent the defendant actually paid for deposition transcripts. 

The chief judge also agreed to award Seven Oaks a $20 docket fee, which is an “authorized statutory fee for prevailing parties under 18 U.S.C. section 1923.” But she stopped short of granting the school the full $1,853.34 it requested, agreeing with the coalition that the school “failed to submit any proof that it — as opposed to a law firm or other outside group — actually paid (the costs).”

“The Court rejects Seven Oaks’ assertion that who paid its costs is ‘irrelevant and none of the plaintiff’s business,’” Magnus-Stinson wrote, citing Neal v. Honeywell, Inc., 191 F.3d 827, 833 (7th Cir. 1999). “… Donated or otherwise uncharged costs may not be recovered. Moreover, given the facts of this case, the court finds it unreasonable to require the Coalition, with its limited resources … to shoulder a cost that Seven Oaks itself did not bear.”

To that end, the chief ordered Seven Oaks to file a verified notice identifying its costs actually paid, except those disallowed under caselaw, by Dec. 3. She also gave the school the option of withdrawing its bill of costs.

Further, Magnus-Stinson denied Seven Oaks’ request to recover the $300 it spent on pro hac vice fees, noting “Seven Oaks chose to have six attorneys, including three who were not members of this Court’s bar, appear on its behalf. Only one of the three admitted pro hac vice signed his name to any substantive filings.”

“Nonetheless, Seven Oaks (or another nonparty) paid for three pro hac vice fees, which adds up to over one fee for ‘lifetime admission to this court’s bar,’” she wrote. “And parties may not ‘charge to an opposing party the costs of lifetime admission to the bar.’”

Finally, Magnus-Stinson declined to find the coalition indigent, noting it has an annual income of $600 to $1,600 and has about $2,500 on hand, which is “already committed to pay for brochures, publicity and our routine advocacy activities.”

“The fact that the Coalition may have to rearrange its spending from its preferred advocacy activities to pay the costs of this lawsuit does not demonstrate that it cannot or will not be able to pay the costs with future income,” the chief judge said. “Moreover, the costs claimed in the case amount to a modest $3,044.08 (once the $300 disallowed pro hac vice fees is excluded), and may total even less once the sums Seven Oaks did not actually pay are excluded. The Court therefore declines to disallow Defendants’ bills of costs based upon the Coalition’s asserted indigency.”

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