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Tuesday, September 01, 2015

Contempt proceeding in Rowan County

The ACLU today moved to hold Kim Davis in contempt for refusing to allow her office to issue marriage licenses, asking for "financial penalties" seemingly tied to the compensation she continues to receive from the state despite not performing her functions. The motion does not ask for jail time, likely realized that is what she and/or her attorneys want. Judge Bunning has scheduled a hearing for Thursday.

More interestingly, the ACLU also moved the court to clarify the preliminary injunction to "state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky." The motion states that the action was filed as a "putative class action," although the court has never addressed or resolved the class certification issue. So the motion appears to be asking the court, in the guise of clarifying its injunction, to convert it into a class-wide injunction without ever doing the FRCP 23 analysis of whether certification is appropriate. Can the court do this?

Posted by Howard Wasserman on September 1, 2015 at 04:27 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I think there is another reason that the plaintiffs must keep Davis out of jail. Under Kentucky's marriage licensing statutes, the county judge executive may issue marriage licenses if the county clerk is not available. The Rowan County judge executive has already said that he would issue marriage licenses but can't because the county clerk is available--this fact is in the preliminary injunction order.

If Davis were jailed for contempt, then the county judge executive would be free to act, and, unless I'm missing something, the plaintiffs' claims would be mooted.

Posted by: Sykes Five | Sep 2, 2015 1:25:08 PM

Of course, which is why I put them in separate paragraphs. The contempt is obvious, the second part is not. As far as I can tell, the class cert issue has not been briefed, so it seems inappropriate to jump to that issue, without briefing, on a motion to expand the injunction while the case is already on appeal.

There was some discussion of this on an earlier post.

Posted by: Howard Wasserman | Sep 1, 2015 6:20:49 PM

The clerk refused requests for a license today from two named plaintiffs, so irrespective of whether the injunction can be expanded to putative class members, the clerk is already in contempt. Expanding the injunction should not be difficult; why can't the court can certify a (b)(2) class or enter preliminary relief on behalf of the class?

The more interesting questions go to the remedy. In an official capacity suit, does a coercive daily fine or a remedial monetary award run against her personally, her office, or both?

Posted by: Michael R. Masinter, Nova Southeastern University College of Law | Sep 1, 2015 6:10:39 PM

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