Losing counties in Ten Commandments cases face growing legal bills to ACLU

SOMERSET — The legal bill continues to mount for two south-central Kentucky counties from their lengthy, unsuccessful fight to post copies of the Ten Commandments in their courthouses.

This week, U.S. District Judge Jennifer Coffman awarded an additional $23,366 in attorney fees and costs to the American Civil Liberties Union of Kentucky for its work in challenging the displays, which were ruled unconstitutional.

Pulaski and McCreary counties now owe the ACLU a total of $456,881, nearly all of it for attorney fees. That figure doesn't include mounting interest.

It's not clear how the two counties would pay the bill, officials from both said Wednesday.

The judgment is not covered under McCreary County's insurance policy, and the relatively poor county — hard-pressed to provide services as it is — has nothing extra in the budget this fiscal year or next to pay the bill, Judge-Executive Doug Stephens said.

There will be "a whole lot of scrambling" to find money when it comes time to finally pay the bill, Stephens said.

Stephens, who was not in office when the Ten Commandments case started, said he would prefer not to use taxpayer funds to pay the judgment.

There have been threats that if the county did use tax dollars, someone will sue over that, he said.

Stephens said one idea to get the money is donations from individuals, churches or groups sympathetic to the county's effort to post the Ten Commandments.

Stephens said his understanding was that Liberty Counsel, the Christian legal group that represented McCreary and Pulaski counties, might use its reach to help with fund-raising to pay the judgment if that became necessary.

However, Liberty Counsel founder Mathew Staver said the organization has never raised money for that purpose and doubts it will in this case.

Many people who supported the fight to post the Ten Commandments wouldn't want to donate money that would go to the ACLU, Staver said.

"That kind of lessens our options," Stephens said when informed of Staver's response.

Pulaski County Judge-Executive Barty Bullock was not available for comment Wednesday, but Magistrate Glenn Maxey said the fiscal court had not identified a specific way to pay the judgment.

"We kept hoping we'd win the thing rather than pay it," he said.

Pulaski County has more money than McCreary County.

However, "We don't have no $250,000 that we want to pay them with," Maxey said referring to the ACLU.

The fiscal court will have to discuss the issue, he said.

There is an option to appeal at least part of the award, Staver said.

However, after more than 11 years, Staver said, he expects the counties will try to resolve the case for good and work out a payment.

The counties could seek to negotiate a lower settlement, he said.

Attorneys for both sides said they plan to talk soon about resolving the case.

Kentucky has had a long history of litigation related to posting the Ten Commandments in public places, but the case involving Pulaski and McCreary counties is the last one pending in the state, said William E. Sharp, an ACLU attorney.

The counties owe the ACLU the money because the civil-rights organization won the court case challenging the counties' decision to post copies of the Ten Commandments.

Federal law allows the winning parties in civil-rights cases to be paid reasonable fees by the losing litigants, Sharp said.

The rationale behind the law was to allow people to pursue potentially expensive lawsuits to defend civil rights and constitutional principles.

And Sharp pointed out that the bill climbed considerably higher because the counties decided to continue appealing aspects of the case after the U.S. Supreme Court ruled 5-4 against the displays in 2005, following legal losses in two lower courts.

"The ACLU is committed to ensuring these judgments are enforced to deter future violations of civil liberties," Sharp said.

The case dates to 1999, when officials in both counties posted framed, stand-alone copies of the Ten Commandments in the courthouses in Somerset and Whitley City.

The ACLU and some residents sued, arguing the displays were an improper government endorsement of a particular religious doctrine, a violation of the First Amendment.

Coffman ordered the copies of the biblical laws taken down.

The counties later added copies of other documents, such as the Declaration of Independence and a print of blind Lady Justice, in an attempt to illustrate some of the underpinnings of American law and government.

That cured the complaint, the counties argued, that they put up the displays to promote religion.

However, a federal appeals court ruled that putting up the additional documents was a sham to cover the "blatantly religious" motive for putting up the Ten Commandments in the first place.

The Supreme Court also ruled that the motive for putting up the displays was clearly religious.

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.

Courts have upheld such displays in other Kentucky counties.

However, Staver said the high court's decision provided no guidance on how long Pulaski and McCreary counties would have to wait in order to do that.