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Thursday, September 03, 2015

Kim Davis (not Jim or Garfield) jailed for contempt

Judge David Bunning has held Kim Davis in contempt and had her jailed. Bunning apparently pointed to the fact that members of the public are raising money to cover the fines (damn crowd-funding) as evidence that fines alone would not work. This is civil contempt, so she will be released as soon as she agrees to comply with the injunction and issue licenses.

So Davis is now a martyr to the cause, probably what she and her lawyers wanted. It raises a couple of questions: 1) Does this provide grounds for the governor or other state-level official to remove her from office (a question of Kentucky law)? 2) Is Davis now "unable" to issue licenses, opening the door for the county judge to do it, as a commenter to an earlier post suggested? 3) If the county judge begins issuing licenses, does that get Davis out of jail? 4) If the county judge begins issuing licenses, does it moot the case once the plaintiffs get their licenses from the judge (the answer to this one is probably not, because I expect Bunning to go back and certify a class).

For what it is worth, the judicial process is working as it should in all of this. No one said it should be pretty.

Update: Five of the six employees of the office (all but Davis's son) have promised to issue licenses beginning tomorrow, filling out the forms in Davis' name. Bunning also indicated he will lift the contempt order in a few days if employees issue licenses. Davis could have stayed out of jail by agreeing not to interfere with her employees issuing licenses, but she said she could not do so consistent with her conscience. There may be a question of whether those licenses can be valid if issued in defiance of office policy. But I suppose it will be enough that the form is properly completed with Davis' name on it by a duly employed clerk.

Posted by Howard Wasserman on September 3, 2015 at 02:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I wonder whether the advocacy group advising Davis has told her that an appeal of a contempt citation normally cannot challenge the validity of the underlying order.

Posted by: Beth Thornburg | Sep 7, 2015 5:52:50 PM

Article VI: The Constitution is the supreme law and the land & state officials have to swear & affirm to uphold it. Obergefell v. Hodges applied the Constitution. State accepted it as the supreme law of the land.

Posted by: Joe | Sep 7, 2015 3:33:35 PM

People seem shocked at her imprisonment. Repeated contempt of the sort displayed by Davis regularly result in imprisonment. If anything, I think the system bent over backwards and then again for her. She's determined to be a martyr to a lost cause.

Posted by: Hannah | Sep 7, 2015 2:53:19 PM

Could the deputies be acting under authority to act in Kim Davis' name under FRCP 70? There's a bit of confusion because there hasn't been a docket entry (last I checked) about the authority on which the judge is asking the deputies to enforce the original order prohibiting the "no marriages" policy.

A preliminary injunction is a "judgment", as it is an "order from which an appeal lies" (FRCP 54(a)).

FRCP 70: "(a) Party's Failure to Act; Ordering Another to Act. If a judgment requires a party ... to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done—at the disobedient party's expense—by another person appointed by the court. When done, the act has the same effect as if done by the party.

"(e) Holding in Contempt. The court may also hold the disobedient party in contempt."

I would imagine once a written order is issued, we'll find that the deputies have been appointed by the district court to enforce the preliminary injunction. In doing so, FRCP 70 deems the appointed deputies performing the task of signing marriage licenses as if Davis had performed the task, which satisfies Kentucky's statutory requirement requiring Davis' signature on the license. Despite the licenses issuing, Davis, who remains disobedient, was found in contempt under the authority of FRCP 70(e).

Posted by: Jeremy Koo | Sep 4, 2015 6:49:36 PM

The coverage includes reports that the other side opposed imprisonment, in part I gather since they knew it would make her into a latter day Perpetua and Felicity. And, yes, I thought the same thing re the typo.

Posted by: Joe | Sep 3, 2015 4:07:26 PM

The latest update: http://www.courier-journal.com/story/news/local/2015/09/02/kentucky-clerk-kim-davis-contempt-gay-marriage/71573666/

"UPDATE: Five of Rowan County Clerk Kim Davis' deputy clerks have said they are willing to issue marriage licenses. Judge David Bunning said that would purge the contempt charge against Davis."

I'm not sure what it means. I guess Davis gets out of jail, but the deputy clerks issue licenses regardless of what she tells them?

Posted by: Brad | Sep 3, 2015 3:28:55 PM

James beat me by 30 seconds! I blame the preview function.

Posted by: read the headline | Sep 3, 2015 2:42:31 PM

Garfield isn't the best comic, but I think holding Jim Davis in contempt is a bit extreme.

Posted by: read the headline | Sep 3, 2015 2:41:36 PM

I know that there are people who really dislike Garfield, but imprisonment seems a bit much.

Posted by: James Grimmelmann | Sep 3, 2015 2:41:06 PM

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