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Monday, August 31, 2015

Serving two masters in Rowan County, KY? (Further Updates)

I am not a fan of Slate's Mark Joseph Stern, who I think has been both wrong and shrill about the procedure in the marriage-equality litigation. But I wonder if he is onto something with this piece about the connection between Kim Davis, the Rowan (Ky) Clerk of Court who is ignoring a federal injunction (and no, even under the view of departmentalism I have been pushing, you can't do that), and her attorneys from the Liberty Counsel, a religious-conservative advocacy group.

Stern posits that the lawyers are taking her for a ride, using her to push their legal-ideological agenda without regard to her best legal interests, recalling Derrick Bell's famous discussion of attorney-client conflicts in desegregation litigation. One commenter on Stern's post posited that she was offered a ride and willingly accepted. And I have suggested that Davis would be perfectly happy to become a martyr to this cause--although who knows if this is her lawyers or her. Either way, if Stern is right that the lawyers advised Davis to ignore the injunction and be held in contempt, that is troubling, since it raises the possibility that she will be unable to challenge any contempt sanctions later on.

Stern reports that Davis has moved for a stay of the injunction from SCOTUS, in a petition that attempts to minimize the effect of Obergefell and to treat the dissents as binding authority. No way four justices sign-off on that. So now we see what happens when the whole thing is back in the district court.

Update: Justice Kagan (the Sixth Circuit Justice) referred the petition to the full Court, which denied it without comment or published dissent. So now we see whether Davis is really willing to go to jail (or pay hefty fines) over this.

Further Update: Davis continued refusing to issue licenses, this time on video. The irony (which no one is going to catch) is that the couple in the video--David Moore and David Ermold--are not among the eight (four couples) named plaintiffs. So Davis actually is not in contempt in denying them the license.

Posted by Howard Wasserman on August 31, 2015 at 03:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I am not sure it's about "prawfsblawg", since posts from other people might look and sound quite different. As for me, I freely cop to a liberal constitutional position on most issues and a belief in procedural formality. I am not sure that the two are necessarily incompatible.

Posted by: Howard Wasser134man | Sep 5, 2015 8:06:02 AM

I like the contrast that one finds on prawfsblawg when it comes to gay marriage posts. When the question if the constitution mandates gay marriage is discussed we see people invoke living constitutionalism. When the discussion is about procedure, the discussion gets all formalist.

I don't have a point but I find the contrast fascinating.

Posted by: Jr | Sep 5, 2015 6:16:17 AM

On further review and some listserv discussions, I think the government pays the penalties. The reason is that the government always pays the costs of prospective compliance with a decree, even when the individual is named defendant under Ex Parte Young (e.g., the cost of mailing eligibility notifications in Quern). I think contempt penalties would be treated as similar costs of prospective compliance with the injunction borne by the state.

Posted by: Howard Wasserman | Sep 1, 2015 11:49:00 PM

All helpful thoughts in response to what was probably a bad idea. Just thinking out loud about ways to lower the stakes, particularly given the availability of many ways for states to deliver marriage licenses. Judicial creativity in coercing compliance is probably not something to be encouraged and "greater includes lesser" arguments generally should be avoided.

Posted by: Kevin C. Walsh | Sep 1, 2015 8:51:26 PM

Kevin: Not my area of expertise, either, although I imagine it would be OK. Courts can get pretty creative in trying to get people to comply with injunctions, especially if it can stop short of putting someone in jail. But I could see Judge Bunning being reluctant to go down that road for a couple of reasons:

1) He was pretty firm in the original order that he did not want to allow Davis to shift the balance of responsibility from the clerk to the county judge. That is what would happen--lasting as long as Davis holds this office and potentially beyond, given her likely successor--under the "don't show up on Wednesday" sanction.
2) The entire office would otherwise have to shut down on Wednesdays, because Bunning also insisted that the clerk was not absent if she was performing all other functions.
3) Does the greater include the lesser? Does the power to throw someone in jail include the power to compel them not to go to work or to order a state office not to open?

Posted by: Howard Wasserman | Sep 1, 2015 5:36:17 PM

Thanks for covering this, Howard. I've read some but not all of the filings and rulings. Wondering what you might think about the feasibility of some type of contempt sanction that would cause the clerk to be "absent" within the meaning of Kentucky law so that the plaintiffs could get their licenses from the county executive. Presumably that would be the effect of imprisonment. Might it be possible, though, to have something that resembles imprisonment in that it prevents Davis from working for various periods (every Wednesday, say) but Davis does not actually have to report to prison? I don't know enough about the permissible scope of contempt sanctions other than fines or imprisonment, but if judges can impose conditions on those contempt sanctions, maybe there is a way to escape the all-or-nothing nature of sanctions aimed at "breaking" the clerk while also getting plaintiffs relief.

Posted by: Kevin C. Walsh | Sep 1, 2015 5:02:48 PM

No, I wonder if there are state-law or ethical limitations on public officials accepting contributions of that sort.

As to Peter's point: This goes to a problem of whether an EPY suit goes against the officer in his individual or official capacity. If the latter (as most courts say it is), then even though she's the named plaintiff, the suit is actually against the government office. So it should be the office, not her, who pays.

Posted by: Howard Wasserman | Sep 1, 2015 1:32:42 PM

What if hundreds of donations pour in to Kim Davis to pay the fine for her (and/or the county if it is fined)? Other than a jail sentence for Ms. Davis, anything the Court can do to prevent financial donations from being used to pay fines?

Posted by: Walter Szymanski | Sep 1, 2015 12:54:09 PM


Interesting idea with FRCP 70(a). I don't know that it would necessarily fly, or that the District Court would want to try using it against a government official. A Federal Court appointing someone to act as if they were a state officer is a big hairy deal constitutionally speaking, and I doubt the court would want to hand that sort of ammunition to someone in open contempt, especially when the court wants ongoing compliance, not just a one-time act.

As to the fines, I think they might go against her personally. Spallone v. US (1990) sets forth when fines should go to an officer personally versus to the government. As the named party to the suit, and where her stated interest in denying the licenses is entirely personal, as opposed to exercising her office on behalf of her constituents, the District Court could probably fine her or imprison her for noncompliance.

Posted by: Peter H | Sep 1, 2015 12:27:46 PM

Interesting questions. I don't think FRCP 70(a) can work here, because implicit in that rule is that the person appointed could have the legal authority to perform the act. The federalism/Erie concerns with a federal judge appointing someone to issue a state marriage license seem huge.

Minnesota Attorney General Young (of EPY fame) was directly subject to the contempt sanctions (jail or fines) himself, so I imagine Davis should be, as well.

Posted by: Howard Wasserman | Sep 1, 2015 12:12:12 PM

If the lawsuit is against the Clerk in her official capacity, would the fines go against the clerk personally or her employer? Any idea about indemnification?

Also, what are the other options besides contempt? I was pointed to FRCP 70(a) by someone who suggested that the district court could appoint someone else to sign the marriage licenses. Does that look viable to you?

Posted by: Brad | Sep 1, 2015 12:02:44 PM

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