Firm offered to take prayer appeal for free

Local attorneys in the law firm of Kilpatrick Stockton offered to take over the county's defense of its prayer suit for free, just days before last week's vote by the Forsyth County Board of Commissions to appeal the case to the 4th U.S. Circuit Court of Appeals.

Their informal offer, made to Dave Plyler, the chairman of the board, never made it to the table for discussion, however, and many commissioners were unaware of the firm's offer.

Plyler said he didn't tell the other commissioners about the offer because it "wasn't the time and the place to convince the entire board of commissioners to make the change" in the county's legal team because the board was already set to take a vote on whether to appeal the ruling. Plyler added that he was all set to vote against appealing the case until a short time before the Monday-night meeting began.

That's when the Rev. Steve Corts, the chairman of the N.C. Partnership for Religious Liberty, showed up ready to sign an agreement with the county that would guarantee $300,000 to pay for legal expenses in the event of a loss. The result was a 4-3 vote -- with Plyler voting in favor -- to appeal and have the Alliance Defense Fund continue to represent the county.

Adam Charnes, an attorney at Kilpatrick Stockon, said that much of his law practice has been on the appellate level, and that the firm had mentioned to Plyler that if the county wanted to change attorneys on appeal, "we would be willing to do that for free."

"I am not going to criticize the ADF in any way," Charnes said.

The ADF has come under of criticism from some opponents of sectarian prayer.

Marshall has attacked the group as "trying to change America from a democracy to a theocracy" -- a charge that the ADF denies.

Plyler said that Kilpatrick Stockton could still "easily come in and be seen as independent of religious association."

But Plyler said he doesn't think that the board will make such a move.

"If I had a choice, I would go with Kilpatrick Stockton in a moment," Plyler said. "You don't start talking about stuff unless you have some type of feeling that the commissioners are willing to do it."

Citizens backed by the American Civil Liberties Union and Americans United for Separation of Church and State sued the county in 2007 because they were offended by Christian prayers that pastors offered before board meetings.

On Jan. 28, a federal district judge agreed with the plaintiffs' contention that the county's prayer policy unconstitutionally promoted Christianity, even though the county had offered the prayer opportunity to pastors on a first-come, first-served basis.

Plyler could have brought up the Kilpatrick Stockton offer to the whole board on the Thursday before the appeal vote, but he didn't.

"That discussion stayed static," Plyler said. "You have to have some time when you think there is a really good chance to bring it up."

In short, Plyler said, it was too late to bring a new approach to the discussion.

Plyler did mention the offer to County Attorney Davida Martin on Friday. Martin said that there were no specific details, only "an interest or willingness to argue the case."

Plyler said that Martin told him that she would do whatever he wanted, and Martin was left thinking that Plyler would get back to her.

On Monday, Martin said, "the chairman didn't feel that the discussion could be finalized before the board took its action."

Commissioners opposed to the appeal -- Democrats Beaufort Bailey, Ted Kaplan and Walter Marshall -- said having Kilpatrick Stockton involved wouldn't have changed their votes. And except for Plyler, commissioners voting in favor of an appeal said they would still have preferred to have the ADF working on the case.

"They were in it to begin with, and we might as well stay the course with them," said Commissioner Richard Linville, who with Plyler and Commissioners Debra Conrad and Gloria Whisenhunt voted to appeal. "They have done other work across the country on this similar thing, so I think they have sufficient knowledge of it."

Plyler told Kaplan a day after the vote that he wanted to talk more about bringing in Kilpatrick Stockton. Kaplan said he told Plyler that his vote was based on his objection to the county prayer policy.

"I just said this issue is cooked and gone," Kaplan said.

Martin said she contacted attorneys at Kilpatrick Stockton on Thursday at Plyler's request. By then, the ADF had already filed the county's notice of appeal.

Had Plyler suggested changing law firms to the board, he likely would have met with opposition from fellow Republicans Conrad and Whisenhunt, two strong supporters of the ADF's involvement in the case.

Conrad was angry with Plyler in the days before the vote because she believed that he would vote to drop the case. Conrad had backed Plyler for the board chairmanship in 2008, when Plyler replaced Whisenhunt. Before the vote on the prayer appeal, Conrad told Plyler that she would no longer support him if he didn't vote to appeal.

"Dave said nothing to me" about bringing in Kilpatrick Stockton, Conrad said. "I don't know that Dave isn't trying to make sure we lose."

Mike Johnson, one of the ADF attorneys representing the county, said that no firm knows the law in the area of prayer as well as his does.

"We are a giant organization with 1,600 lawyers, and we do these kinds of cases all across the country," Johnson said, claiming an "82 percent winning percentage" on cases that the ADF chooses to litigate.

Experts said that the choice of attorneys likely won't make much of a difference. "Kilpatrick is an outstanding firm, and Adam clerked at the Supreme Court and knows the 4th Circuit very well," said John Korzen, a professor at Wake Forest University School of Law. "I don't know enough (about the ADF) to say it would have been a better choice. At the end of the day, it is how well the briefs are written."

Scott Gaylord, a professor at Elon University School of Law, said he didn't sense in reading the District Court's ruling that the judge was paying attention to anything other than the legal arguments. "There are probably pros and cons with any attorney selected," Gaylord said.

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