$400,000 in costs sought by ACLU in Decalogue case

By JANIE SLAVEN<br>Record Staff Writer

September 10, 2008 04:49 pm

— LONDON — Last week saw renewed activity in the county’s legal fight over posting the Ten Commandments.
On August 4, U.S. District Judge Jennifer Coffman ruled in favor of American Civil Liberties Union of Kentucky — making permanent an injunction prohibiting McCreary and Pulaski counties from posting the religious missive on courthouse walls.
Later in the month, fiscal courts for both counties authorized their attorneys — Florida-based Liberty Counsel — to appeal the ruling both before Judge Coffman and to the 6th Circuit U.S. Court of Appeals in Cincinnati.
Liberty Counsel filed its notice of appeal with the U.S. District Court at London last Tuesday. The following day, ACLU — which first filed suit in late 1999 on behalf of local residents Dave Howe and Louanne Walker — filed its own motion to recover nearly $400,000 in attorneys fees and related expenses.
According to a report in The Lexington Herald-Leader, ACLU is seeking $390,588 for the 1,283 hours in which lead attorney David Friedman has worked on the case since 1999 plus $8,133 in expenses for a total of $398,721.
Friedman explained to The Record last month that his clients in this case were not seeking personal damages but can seek “reasonable attorneys’ fees.”
“Congress deemed that fee-shifting necessary to encourage people to serve as ‘private attorneys general,’ enforcing the nation’s civil rights laws and constitution,” Fried-man said. “And Congress deemed it necessary in order that lawyers would and could take cases that don’t involve damages, or involve low damages.”
McCreary County Judge-Executive Blaine Phillips had not been advised of the latest turn of events when contacted by The Record on Monday but said fiscal court members would heed the advice of their attorneys.
“Honestly I thought it would be more,” Judge Phillips said. “I have been waiting on this figure and now it’s up to our lawyer [Liberty Counsel’s Mathew Staver] to appeal.”
Though the county is normally insured by the Kentucky Association of Counties, officials were notified early on that KACo would not be assisting with this suit. Judge Phillips said that, to his knowledge, the association’s stance had not changed. He added that if the ACLU is awarded any monies, it must be determined what is owed and who among the three original defendants — McCreary County, Pulaski County and Harlan County Board of Education — owes what.
Harlan County Board of Education was dismissed from the suit without prejudice and was not among the defendants when the case was argued before the United States Supreme Court in 2005.
The court, at that time, split 5-4 in a ruling that determined the counties had unconstitutionally endorsed religion with its displays but left open the possibility that the last display — which includes secular documents — could be posted in the future.
Following Supreme Court arguments in March 2005, McCreary County passed a resolution stating the display’s educational purpose and rescinding a prior resolution in support of a display that included only Judeo-Christian references.
“What else can we do to correct it except not put [the display] up until this is resolved?” Judge Phillips said.