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Attorney: ‘Appears likely’ that Rowan County commissioners will appeal prayer lawsuit

SALISBURY — Attorney David Gibbs said it’s likely that the Rowan County commissioners will take their prayer lawsuit to the U.S. Supreme Court.

Gibbs, president of the National Center for Life and Liberty, traveled to Salisbury Monday with a number of other attorneys to talk about the prayer lawsuit in a closed-door meeting with the commissioners. The meeting lasted about two hours. Attorney Allyson Ho, who made oral arguments before the 4th Circuit Court of Appeals on behalf of the commissioners, was among the attorneys attending Monday’s meeting.

The meeting occurred as commissioners consider whether to appeal a 10-5 ruling by the 4th Circuit Court, which ruled that the commissioners’ prayer practices from 2007 to 2013 were unconstitutional.

A decision to appeal or accept the ruling was not made Monday. Instead, the commissioners say they’ll hold a called meeting at 6 p.m. Sept. 25 to hear from members of the public and make a decision about the case.

The commissioners have until mid-October to file an appeal.

Gibbs said it “appears likely” that an appeal is coming.

“It really makes a lot of sense to probably proceed forward, both on a financial level as well as a freedom issue,” Gibbs said.

Costs

Gibbs said he has been told by the ACLU, which represents three local residents who sued the commissioners, that the organization has racked up $300,000 in legal fees. If the commissioners appeal and the Supreme Court accepts the case and rules in the county’s favor, the county would not have to pay the legal fees. If it loses the case, the county may be forced to pay legal fees.

The costs of the case, however, will not be the deciding factor in whether the commissioners appeal, according to Gibbs and Commissioners Chairman Greg Edds.

“I think the commissioners are looking at this in terms of what’s in the best interest for the future,” Gibbs said. “They’re really looking at what kind of Rowan County do we want to hand to our kids and grandkids.”

Edds said legal fees are not the most significant factor, but the commissioners are aware of the potential costs.

County attorney Jay Dees said legal fees won’t increase significantly with an appeal to the U.S. Supreme Court.

The National Center for Life and Liberty is representing the Rowan County commissioners at no cost.

To appeal or not?

Already, two commissioners — Mike Caskey and Craig Pierce — say they will vote to appeal the ruling. The remaining three commissioners have not publicly stated their opinions. On Monday, Vice Chairman Jim Greene said he would talk about the matter at a later date.

When asked about an appeal, Edds posed his own question — should the county cancel its meeting on Sept. 25 and reveal its decision in the Salisbury Post?

“We’re going to have a special called session on Sept. 25 where we will hear from the commissioners and the general public,” he said. “At that point, we’ll take an official vote as to what we’re going to do.”

The commissioners and their attorneys are closely watching a nearly identical case in the 6th Circuit Court of Appeals. That case involves the Jackson County, Michigan, commissioners.

If the 6th Circuit rules that prayers in Michigan were constitutional, it would create a circuit split, which could increase the chances that the U.S. Supreme Court would take one or both cases. Attorney Ken Klukowski, representing Rowan County, said a 6th Circuit decision could come at any time.

Klukowski said he’s “guardedly optimistic” that the 6th Circuit Court of Appeals will rule in favor of the county commissioners in Michigan.

“I think there’s going to be a lot of judges voting for that county,” he said. “So even if there is a loss from the 6th Circuit, you’re still looking at a mix of federal judges, 30 federal judges, where there’s a lot who are voting in favor of the practice Rowan County had. All of that would give the justices another reason to take their case.”

The last major Supreme Court case dealing with prayer came in 2014 in Greece v. Galloway. In that case, the court decided that the town of Greece, New York, could allow volunteer chaplains to open public meetings.

Rowan County’s prayer lawsuit — Lund v. Rowan County — started in 2013 when the North Carolina ACLU filed suit on behalf of three Rowan County residents.

In 2015, a District Court judge found Rowan County’s prayer practices to be unconstitutional. In 2016, a three-judge panel for the 4th Circuit Court of Appeals overturned that decision. In July, an en banc panel — all judges on the 4th Circuit — ruled against Rowan County commissioners.

Contact reporter Josh Bergeron at 704-797-4246.

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