A long legal fight over courthouse displays of the Ten Commandments could cost two Southern Kentucky counties nearly $400,000.
In a motion filed this week, attorneys with the American Civil Liberties Union of Kentucky requested fees of $390,588 for representing people who challenged the displays in the halls of the Pulaski and McCreary County courthouses, plus $8,133 in expenses.
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The request comes after the ACLU won its request for an injunction barring the displays. Congress approved rules decades ago under which the losers in civil-rights cases must pay the legal fees of the winners.
The goal was to make it possible for citizens and attorneys to pursue potentially expensive lawsuits to defend civil rights and uphold constitutional principles when government doesn't do the right thing, said David A. Friedman, the lead attorney for the ACLU on the case.
"It's a core economic principle for how everyone's civil rights and civil liberties can be protected and defended when government acts in a lawless way," Friedman said.
Mathew Staver, the attorney representing the counties, said he will argue that it would be premature to award the ACLU's attorney fees because the case is still pending, and that the amount they've requested is too high.
"It's absurd, in my view," said Staver, founder and chairman of the conservative Christian legal group Liberty Counsel.
The motion from the ACLU, however, said the request was not only reasonable, but conservative. The organization chose to bill primarily only for the 1,283 hours Friedman worked on the case since 1999, and did not include time that most other lawyers spent on the case, according to the motion.
Attorneys bill by the hour. The motion requests an hourly fee of $300 for Friedman; that is well within the range attorneys receive for such work, according to the document.
If the counties do have to pay the ACLU's fees at some point, it's possible insurance would cover the payments.
The lawsuit started in 1999, after local officials posted copies of the Ten Commandments in the courthouses.
The ACLU sued on behalf of residents in each county, arguing that posting the Biblical laws violated the First Amendment ban on government endorsement of a particular religious doctrine.
U.S. District Judge Jennifer Coffman ordered the local governments to take down the copies. The counties later put up new displays of the religious laws with other documents such as the Declaration of Independence.
That was an attempt to define the collections as non-religious historical and educational displays, but Coffman ordered the counties to remove the Ten Commandments.
A federal appeals court said putting up the additional documents was a sham to cover the "blatantly religious" motive for putting up the Ten Commandments.
The counties and school system appealed to the U.S. Supreme Court.
A divided high court ruled in 2005 that the displays violated the Constitution, though it left open the possibility that the counties could cure their earlier problems in posting the Ten Commandments and someday put them back on the courthouse wall.
The counties have a motion pending before Coffman arguing they have done that. They passed resolutions last year making clear that a display of the Ten Commandments and other documents would have a secular purpose, the counties argue.
The ACLU, however, argues that the counties are trying to post the same displays for the same reasons as before.
The counties also are appealing Coffman's injunction against posting the three displays they put up earlier containing the Ten Commandments.