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Thursday, September 24, 2015

Justice and fairness v. procedure

Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:

Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).

Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.

Posted by Howard Wasserman on September 24, 2015 at 10:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Without having consulted the remedies texts, this does bring to mind East Tex. Motor Freight System, 431 U.S. 395, where the Fifth Circuit did something similar to Judge Bunning and even ordered class certification after a non-class trial, only to be reversed by the S. Ct. on the ground that the case was not litigated as a class action and pltfs accordingly lacked remedial standing to obtain a classwide remedy.

Posted by: David N | Sep 26, 2015 8:56:44 PM

I would point to Laycock on Remedies (4th ed.), pp. 216-18, where he questions the power to issue such injunctions. I also would point to general principles that a court ordinarily may not litigate the rights of persons not before the court and that it would render non-mutual offensive issue preclusion and FRCP 23(b)(2) superfluous. It is noteworthy that the plaintiffs in Miller, in moving to extend the injunction, pointed to the pending class certification motion in support of their argument; even they recognized that the court did not have the power to expand the injunction simply because.

Barry: You have that exactly right. The non-parties must take steps to vindicate their own rights, either by filing new actions or joining the pending lawsuits via FRCP 20 joining or 24 intervention. That litigation may be pretty expeditious, because Judge Bunning will have the new cases and either preclusion (for non-government cases) or precedent will fairly readily dictate the outcomes. The new plaintiffs will be entitled to attorney's fees once they get that injunction and at some point Davis' recalcitrance may put her on the hook for damages--all of which may incentivize Davis to comply, obviating the new action. But new litigation is formally required.

Posted by: Howard Wasserman | Sep 26, 2015 3:15:15 PM

As a non-lawyer, Howard, I'm confused. As far as I can tell from your position, 'proper' would have meant that every such couple would have to litigate from scratch, even though the issue is the exact same one.

Posted by: Barry | Sep 26, 2015 12:37:15 PM

The affirmative defence Davis advanced was a personal right to a religious exemption. She had a full and fair opportunity to litigate that issue, and should not be entitled to relitigate the issue with respect to every applicant for a marriage license. There could not be a better case for offensive non- mutual collateral estoppel.
Quite apart from this, Howard still has advanced no authority for the proposition that Bunning's expansion of his injunction was "improper," other than what one expert in civil procedure used to call "the ipse dixit of the new Pythagoras."

Posted by: Mark Herlihy | Sep 25, 2015 11:35:58 PM

"There is no offensive C/E against governments and government officials."

Is this true for state governments/officials? US v. Mendoza supports that proposition as to the federal government and its officials, but I thought the Mendoza exception hadn't been extended to the state level.

Posted by: Anonymous | Sep 25, 2015 8:39:56 PM

There is no offensive C/E against governments and government officials.

The injunction absolutely was necessary, for all the reasons I have been blogging about for the past six months. The Supreme Court only created precedent; that precedent must be applied to new plaintiffs, new defendants (Davis was not a party to the case that went to the Supreme Court), and new situations. You can call it absurd, but that is how procedure works. It typically does not come to this because public officials generally comply with precedent, especially binding precedent. But when they don't, this is what it looks like.

Posted by: Howard Wasserman | Sep 25, 2015 8:10:14 PM

The Supreme Court having already decided this issue, no injunction should have been necessary. It seems like what Ms. Davis was doing as a ministerial government official was procedurally improper. The court has every right to instruct her on how to implement the law, when a proper case has come before the court demonstrating to the world that she was willfully doing it wrong. It would be absurd to require every similarly situated litigant to expend the money and time to go to court on this.

Posted by: Denny | Sep 25, 2015 4:51:55 PM

I'm not sure a class is appropriate here, as it would have to be unusually open-ended going forward to afford effective relief. On the other hand, this seems a clear-cut case for the application of offensive non-mutual collateral estoppel; that this is so supports the judge's position here. BTW, simply declaring a practice that is not uncommon as "improper" seems a bit ex cathedra to me. Have you any authority supporting that position?

Posted by: Mark Herlihy | Sep 25, 2015 3:50:22 PM

No, it is not unusual. But it is improper, at least in cases in which the interests of the persons are divisible (e.g., an injunction to ease overcrowding in the prison v. an injunction that marriage licenses be issued). District courts do it because defendants--especially government defendants--tend not to bother challenging the scope.

Posted by: Howard Wasserman | Sep 25, 2015 3:21:58 PM

Maybe I'm misreading your position, but it is not unusual for courts to issue injunctions that extend protection to non-parties who are similarly-situated to the names parties. The decisions are collected in Understanding Remedies Section 33.1 (#d ed. 2014)There are, of courses, cases where courts have limited injunctions to the named parties, but to say or suggest that such a limitation is mandatory is simply incorrect.

Posted by: Jim Fischer | Sep 25, 2015 12:47:49 PM

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