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Judge orders McCreary, Pulaski to pay $400,000

Two southern Kentucky counties where officials posted copies of the Ten Commandments in courthouses have been ordered by a federal judge to pay more than $400,000 to the ACLU and citizens who successfully challenged the displays.

U.S. District Judge Jennifer B. Coffman ordered Pulaski and McCreary counties to pay $393,798 in attorneys' fees and $8,133 in expenses to the American Civil Liberties Union of Kentucky and citizens.

Coffman's decision is the latest ruling in a court fight that began a decade ago.

The counties don't have to pay immediately because aspects of the case are still being appealed.

But if the counties ultimately lose, taxpayers could be on the hook for the bill if insurance doesn't cover it.

McCreary County Judge-Executive Blaine Phillips said he doesn't think the county's insurance policy would cover its share of the payment.

Phillips said McCreary County might seek donations if it has to split the cost of the Ten Commandments fight with Pulaski County. He was reluctant to even mention taxpayer dollars as a possible source for the payment.

"That'll be a hard pill to swallow" if the county has to pay, Phillips said.

McCreary County is one of the state's poorest, hard-pressed at times to fund police protection and other services.

Phillips said there's been no discussion on how to share the bill with Pulaski County if that becomes necessary.

But Mathew Staver, who represents the counties, said he thinks their insurance companies would cover the judgment if the counties someday have to pay.

Staver said if the counties win the case on appeal, they wouldn't have to pay the ACLU.

That is the goal, said Staver, founder and chairman of Liberty Counsel, a Christian legal group.

David A. Friedman, lead attorney for the ACLU, agreed that the counties wouldn't have to pay all $400,000 if they win their appeal. However, the ACLU and the citizens who filed the lawsuit would still be entitled to a significant fee award, Friedman said.

The counties argued to Coffman that the fee request from the ACLU was unreasonable. The attorneys spent too much time on some tasks such as legal research, billed for some things they shouldn't have and sought fees that were too high, the counties argued.

Coffman disagreed on every point, ruling that the ACLU fee request was reasonable for a complex case that required 1,300 hours' work over 10 years. She also noted that the counties' own actions ran up the legal bill in the case.

The counties started the court battle by posting stand-alone copies of the Ten Commandments that were "indisputably unconstitutional" at the time, then fought all the way to the U.S. Supreme Court to defend their actions, Coffman said.

"The defendants 'cannot litigate tenaciously and then be heard to complain about the time necessarily spent ... in response,'" Coffman wrote, citing an earlier court opinion.

If the counties lose on appeal, the amount they'll have to pay will be even higher because of continued legal work, Friedman said.

Kentucky has seen a number of court fights over efforts to post the Ten Commandments in government buildings or on public property.

The one involving Pulaski and McCreary counties started in 1999, after local elected officials conspicuously put up copies of the biblical laws in the two courthouses.

The ACLU sued for residents in both counties, arguing that posting the displays violated the First Amendment ban on government endorsing a particular religious doctrine.

Coffman agreed and ordered the Ten Commandments removed from the hallways.

The counties eventually appealed the case to the U.S. Supreme Court, which ruled in a split decision in 2005 that the displays violated the Constitution.

However, the high court left open the possibility that the counties could someday post the Ten Commandments with other documents, such as the Declaration of Independence, so that the displays would have a secular purpose, not a religious one.

That is one issue on appeal now — whether the counties have cured what one appeal panel called their "blatantly religious" motive for putting up the Ten Commandments in the first place.

The counties passed resolutions stating that the displays of historical documents were for a secular purpose.