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Tuesday, September 08, 2015

Kim Davis released from custody

Kim Davis has been released from custody and had the contempt sanction lifted, based on the plaintiffs' report that they had received marriage licenses and that deputy clerks were issuing licenses to "all legally eligible couples." The court furthered barred Davis from  interfer[ing] in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples." (H/T: Marty Lederman).

As written, however, the new order brings us back to the recurring problem we have seen with most district court injunctions: This has not been certified as a class action, so the injunction was satisfied when the named plaintiffs received their licenses. Further, Davis cannot properly be held in contempt for interfering with the issuance of licenses to other couples; those licenses are not  formally happening on the strength of the court's order, so Davis would not formally be defying the court's order. Of course, if she attempts to push that point, the plaintiffs will simply ask Judge Bunning to certify the class, thereby expanding the injunction to that scope. The wiser move is for Davis to stand aside and let her deputies voluntarily comply.

Posted by Howard Wasserman on September 8, 2015 at 01:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


The matter of the contempt citation ended with the Order and Release of Kim Davis. Wouldn't her defiance of a District Court Judge's order be a new matter? Could it become a criminal contempt for obstruction?

Posted by: Brenda | Sep 12, 2015 7:08:16 PM

Paul, would that not in turn open up the country to some serious lawsuits?
This office,under Kim Davis, has openly been discriminating on religious grounds.

Posted by: Barry | Sep 11, 2015 1:16:13 PM

But if the deputies are just voluntarily complying with a court order that does not formally bind them, doesn't that reopen the issue of the licenses being (formally) invalid under the state law that requires Davis's name on them? The deputies are no longer acting under compulsion of a court judgment.

Posted by: Paul Thomas | Sep 8, 2015 7:52:02 PM

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