A Salt Lake attorney was "grubbing for money" when he successfully sued the state recently over a law that had never been enforced, state Attorney General David Wilkinson says.
But attorney Brian Barnard said Tuesday he was protecting the rights of about 20,000 state residents who thought they were married but legally were not.The law, passed in 1969, made it illegal for divorced people to remarry if they were behind in child support payments.
Wilkinson said Tuesday the state has agreed to turn $3,500 over to Barnard - the amount a federal judge ordered the state and 28 counties to pay after Barnard won his suit.
Federal Judge J. Thomas Greene agreed to garnish the wages of Wilkinson and the county attorneys in Utah and Davis counties unless the money was turned over. Wilkinson said the money was held temporarily because Barnard was appealing to the court for more money.
Barnard claimed the law was discriminatory and unconstitutional, and the court agreed.
But state officials said the law never was enforced. They told county clerks statewide to disregard it several years ago after a state district court judge ruled it unconstitutional, Wilkinson said. County clerks are responsible for issuing marriage licenses.
Barnard said it was irrelevant whether anyone enforced the law.
"This was not like a criminal law where someone needs to enforce it," he said. "This law said these people's marriages were invalid. It said your children are bastards and your wife can't inherit anything from you."
Wilkinson said Barnard was trying to take advantage of a federal law that forces governments to pay legal fees if they are on the losing end of a civil rights suit.
"Brian Barnard suddenly discovered this statute that nobody was enforcing," Wilkinson said. "He's just grubbing for money."
But Barnard said he wants nothing more than to be reimbursed for his legal costs. He is appealing for the court to double the money.
"Our fees were in the neighborhood of $7,000," he said.
Barnard said the suit would have cost the state nothing if Wilkinson had agreed the law was invalid. Salt Lake County did so and was removed from the suit, he said.
"I made that offer to them (the state) early," he said. "If David Wilkinson wants to characterize me as money grubbing, I find that interesting.
"It was their (the state's) conduct that ran up the attorney fees."
He said he garnished the wages of Wilkinson and the two other county attorneys "because they were the closest and the easiest to get to."