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Title: APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL
Source:
Sixth Circuit Court of Appeals
URL Source: https://assets.documentcloud.org/do ... 315injunctionpendingappeal.pdf
Published: Sep 11, 2015
Author: Roger K. Gannam, Counsel for Appellant K
Post Date: 2015-09-12 00:07:53 by nolu chan
Keywords: None
Views: 13125
Comments: 112
The complete filing, with appendices, is a 244 pp PDF. Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 1 No. 15-5880 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE; STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON SKAGGS; and BARRY SPARTMAN, On Appeal From The United States District Court For The Eastern District of Kentucky In Case No. 15-cv-00044 Before The Honorable David L. Bunning APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL A.C. Donahue Horatio G. Mihet, Counsel of Record hmihet@lc.org / rgannam@lc.org / j christman@lc.org - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 2 Pursuant to Fed. R. App. P. 8(a)(2) and 27, Appellant Kim Davis ("Davis") hereby moves this Court, on an emergency basis, for a stay pending appeal of the district court's September 3, 2015 injunction order. (R.74.) INTRODUCTION This appeal began with the district court's entry of its August 12, 2015 preliminary injunction ordering Davis to issue marriage licenses to the named Plaintiffs. (R.43 (the "Injunction").) Davis immediately filed a notice of appeal of the Injunction, bringing it within this Court's jurisdiction, and depriving the district court of jurisdiction to alter or expand the Injunction's scope.1 (R.44 (Injunction and notice of appeal attached hereto as Exhibit A).) But the district court did just that, without fair notice or hearing, by entering a new injunction order that materially expanded the original Injunction while it was already on appeal to this Court. (R.74 (the "Expanded Injunction").) The district court's Expanded Injunction lays waste to well-established principles of jurisdiction and due process in the federal court system while an appeal is pending. And, under color of the Expanded Injunction, the district court has coopted a supervisory role over the operations of the Rowan County, Kentucky Clerk's Office. __________ 1 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 3 Davis timely appealed the Expanded Injunction. (R.82 (Expanded Injunction and notice of appeal attached hereto as Exhibit B).) Quite apart from Davis' religious liberty interests involved in her appeal of the original Injunction on the merits, her appeal of the Expanded Injunction, and this request for stay, involve only the issue of the district court's acting without jurisdiction. The district court's far-reaching expansion of the original Injunction must be reversed, and should be stayed pending this Court's decision on the merits. STATEMENT OF FACTS The Injunction On July 2, 2015, less than one week after the Supreme Court decided Obergefell v. Hodges and the Kentucky Governor issued a directive ordering all county clerks to personally authorize the issuance of Kentucky marriage licenses to same-sex couples, Plaintiffs filed this lawsuit demanding that Davis authorize and approve their Kentucky marriage licenses, despite widespread availability of licenses and Davis' undisputed religious conscience objection to same-sex "marriage."2 (R.1, Compl.) __________ 2 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 4 Plaintiffs filed the action on behalf of themselves and a putative class consisting of "all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendant's policy." (R.1, Compl., PgID 9.) "Named Plaintiffs" also moved for a preliminary injunction to bar Davis "from enforcing the challenged policy of refusing to issue marriage licenses against them" (R.2, Pls.' Mot. Prelim. Inj., PgID 34 (emphasis added)), and submitted a proposed Order enjoining Davis "from enforcing the policy of refusing to issue marriage licenses to any future marriage license applications submitted by the Named Plaintiffs" (R.2-2, Proposed Prelim. Inj. Order (emphasis added)). The district court hastily scheduled a full evidentiary hearing on the injunction motion, to occur on July 13, 2015—just eleven days after the motion was filed. (R.5, Order.) Plaintiffs did not, however, obtain service of process on Davis prior to the hearing. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 105:15-107:7.) Thus, Davis' counsel appeared specially and objected to the district court's proceeding with the hearing, without having obtained jurisdiction over Davis through service of process. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2, 117:1-10.) Deeming the fundamental jurisdictional defects mere "Road blocks to getting to the merits," the district court overruled counsel's objection to proceeding without Davis, took evidence, and heard argument on Plaintiffs' preliminary injunction motion. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 117:1-119:7.) 3 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 5 After allowing all of Plaintiffs' evidence and hearing argument, the district court "continued in progress" the July 13, 2015 hearing (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 207:2-4), and concluded the hearing on July 20, 2015 (R.26, Prelim. Inj. Hr' g Tr. July 20, 2015). Plaintiffs' evidence at both hearings was limited exclusively to the named Plaintiffs' claims.3 On August 12, 2015, the district court granted Plaintiffs' motion for preliminary injunction by its Memorandum Opinion and Order (R.43 (the "Injunction").) Exactly as requested by Plaintiffs in their motion and proposed order (R.2, 2-2), the Injunction enjoins Davis "from applying her 'no marriage licenses' policy to future marriage license requests submitted by Plaintiffs." (R.43, Inj., PgID 1173 (emphasis added).) Thus, there was complete agreement between what Plaintiffs requested and what the district court ordered.4 __________ 4 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction motion against Davis, the district court brushed away any urgency regarding Davis’ own motion for preliminary injunction against Third-Party Defendant Governor Beshear (R.39), and effectively denied the motion by ordering a stay (on the court’s own motion) of all proceedings on Davis’ motion pending this Court’s decision on the merits of Davis’ appeal of the Injunction against her. (R.58, Order Aug. 25, 2015, PgID 1289.) Davis appealed to this Court the district court’s effectual denial of her preliminary injunction motion (R.66, Notice of Appeal), which appeal is docketed at Case No. 15-5961. - - - - - 4 Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 6 Plaintiffs' Request For Class Certification On August 2, 2015, Plaintiffs filed a motion for class certification. (R.31, Pls.' Mot. Class Cert.). On August 11, 2015, Davis filed a motion for extension of time to respond to Plaintiffs' class certification motion, requesting that the Court set a response date for ninety (90) days after the district court ruled on all of the motions pending before the district court at that time.5 (R.42, Mot. Ext. Time Respond.) Plaintiffs filed no written opposition to this motion in the time allotted under the Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs' time to oppose expired, showing that "Plaintiffs' failure to file a timely written opposition constitutes a waiver of any opposition to Davis' motion for extension of time." (R.56, Reply Br. Supp. Mot. Ext. Time Respond, PgID 1289.) On August 25, 2015, the district court granted Davis' motion for extension of time. (R.57, Virtual Order Aug. 25, 2015 ("Plaintiffs having filed no opposition to the MOTION, IT IS ORDERED that Defendant Davis' response to said motion is due 30 days after the Sixth Circuit Court of Appeals renders its decision on the appeal of the Court's granting of Plaintiffs' motion for a preliminary injunction.").) __________ 5 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 7 The effect of this order was to stay all proceedings on Plaintiffs' class certification motion until this Court decides the appeal of the Injunction on the merits. Plaintiffs' Motion to "Clarify" the Injunction and the "Hearing" Despite the unambiguous agreement between what Plaintiffs requested in their motion for preliminary injunction and what the district court granted in the Injunction, Plaintiffs manufactured a disingenuous motion to "clarify" the Injunction to encompass a class of persons not covered by the Injunction. (R.68, Pls.' Mot. "Clarify" Prelim. Inj.) Specifically, Plaintiffs moved: for an order to clarify or, in the alternative, to modify 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. (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1488 (emphasis added).) Thus, rather than a motion to "clarify," Plaintiffs actually sought to convert the Injunction's relief, which was limited and personal to them by their own request, into a class-wide preliminary injunction even though (1) they had never previously requested a class-wide injunction (R.2-2, Proposed Prelim. Inj. Order), (2) they presented no actual evidence regarding the purported "other members of the putative class" (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489); and (3) their actual motion for class certification was stayed. (R.57, Virtual Order Aug. 25, 2015.) 6 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 8 Plaintiffs filed their motion to "clarify" the Injunction on September 1, 2015, three weeks after the district court entered its Injunction. (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1488-91.) Moreover, Plaintiffs' motion to "clarify" was filed on the heels of, or "contemporaneously with" (Plaintiffs' words), their motion to hold Davis in contempt of court for violating the Injunction by failing to authorize a marriage license for one Plaintiff couple. (R.67, Pls.' Contempt Mot.) Within minutes of Plaintiffs' filing the contempt motion, the district court scheduled a contempt hearing to occur two days later, ordered Davis and all of her deputy clerks to be present at the hearing, and limited Davis to filing a five-page opposition by close of business the next day (which Davis did).6 (R.69, Order Sept. 1, 2015, PgID 1496; see also R.72, Contempt Resp., PgID 1540-46.) Approximately forty-eight hours later, on September 3, 2015, the district court commenced the hearing it had exclusively noticed for Plaintiffs' contempt motion. (R.69, Order Sept. 1, 2015, PgID 1496 ("IT IS ORDERED that this matter be, and is, hereby set for a hearing on Plaintiffs Motion to Hold Defendant Kim Davis in Contempt of Court DE[67] on Thursday, September 3, 2015 at 11:00 a.m. in Ashland, Kentucky."); R.78, Contempt Hr'g (the hearing transcript, attached hereto __________ 7 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 9 as Exhibit C).) Before taking up the contempt motion, however, and without any advance notice to Davis, the district court called up Plaintiffs' motion to "clarify" the Injunction. (R.78, Contempt Hr'g, PgID 1570:21-1571:22, 1572:19-1573:19.) Davis' counsel objected to proceeding on the motion to "clarify" due to lack of fair notice, and due to the district court's lack of jurisdiction to expand the Injunction because it was already on appeal. (R.78, Contempt Hr'g, PgID 1573:20-1580:19.) The district court acknowledged that the motion to "clarify" was not noticed for hearing. (R.78, Contempt Hr'g, PgID 1571:18-20 ("The case wasn't noticed for that hearing. ").) The district court also acknowledged that the so-called "clarification" sought by Plaintiffs was, in fact, to add relief to the Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. (R.78, Contempt Hr'g, PgID 1578:20-25 ("I recognize they did not request it in the original motion." (emphasis added)).) Nonetheless, over Davis' objection, and without taking any evidence to support this class-wide relief, the district court granted the expansion of the Injunction. (R.78, Contempt Hr'g, PgID 1580:3-15.) After expanding the Injunction, the court immediately passed the issue to this Court. (R.78, Contempt Hr'g, PgID 1580-81 ("We'll just include that as part of the appeal. . . . And the Sixth Circuit can certainly decide if that's appropriate.").) Having expanded the Injunction, the district court then proceeded with hearing the only motion the court noticed for hearing, Plaintiffs' contempt motion. 8 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 10 (R.78, Contempt Hr'g, PgID 1581:18-19 ("Let me now turn to the actual merits of the matter that's before the Court.").) The court ordered Davis to jail as a contempt sanction for Davis' refusal to issue a marriage license, in violation of her conscience, to one Plaintiff couple.7 (R.78, Contempt Hr'g, PgID 1659:22-1661:25.) The condition for Davis' release would be her compliance with the Expanded Injunction, not the original Injunction (R.78, Contempt Hr'g, PgID 1661:18-1662:16.) The district court then appointed criminal defense counsel for each of Davis' deputy clerks—all of whom had been summoned in advance to the hearing—and interrogated each deputy clerk as to whether each of them would issue marriage licenses without Davis' authorization. (R.78, Contempt Hr'g, PgID 1667:19 __________ 9 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 11 1730:6.) All but one (Davis' son) were coerced by the threat of contempt sanctions to answer "yes."8 (Id.) On September 8, 2015, the sixth day of Davis' incarceration, Plaintiffs filed a status report, showing the district court that the Plaintiffs had received marriage licenses from the deputy clerks.9 (R.84, Status Report.) Following the status report, the district court ordered Davis released, stating in its order the court was "satisfied that the Rowan County Clerk's Office is fulfilling its obligation to issue marriage licenses" under the Injunction. (R.89 (the "Release Order"), PgID 1827-28.) The Release Order commands, however, "Davis shall not interfere in any way, directly __________ 9 The status report showed that three of the four Plaintiff couples had received marriage licenses. (R.84, Status Report, PgID 1798.) Plaintiffs had previously shown the court, however, that as of August 13, 2015, Plaintiffs Burke and Napier were “making new wedding arrangements.” (R.46, Pls.’ Resp. Mot. Stay Prelim. Inj., PgID 1235.) This fourth couple has never testified in this case or otherwise supplied verified proof that they are qualified to obtain a marriage license, or that they have not received one, both prerequisites to injunctive relief. (R.29, Resp. Pls.’ Mot. Prelim. Inj., PgID 359.) Moreover, based on the status report, the district court found, “Plaintiffs have obtained marriage licenses . . . .” (R.89, Release Order, PgID 1827.) 10 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 12 or indirectly, with the efforts of her deputy clerks to issue marriage licenses," on pain of new sanctions for contempt. (R.89, Release Order, PgID 1828.) The order also requires the deputy clerks, through their appointed criminal defense counsel, to file status reports with the district court every fourteen days. (R.89, Release Order, PgID 1828.) Emergency Motion to Stay Davis now moves this Court for an order staying the September 3, 2015 Expanded Injunction pending appeal. Seeking a ruling from the district court on a stay request is "impracticable" under Fed. R. App. P. 8(a)(2)(A)(i), due to the extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be heard, and the district court's haste to pass the matter to this Court for determination—"the Sixth Circuit can certainly decide if that's appropriate" (R.78, Contempt Hr'g, PgID 1580-81). Accordingly, Davis now seeks a stay from this Court. ARGUMENT In deciding a motion for stay pending appeal, this Court balances the same four factors that are traditionally considered in evaluating a motion for preliminary injunction: "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants 11 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 13 the stay; and (4) the public interest in granting the stay." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). I. Davis has a sufficient likelihood of success on the merits of her appeal to warrant an immediate stay of the Expanded Injunction. The district court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. There is no doubt as to Davis' likelihood of success in obtaining reversal of the Expanded Injunction on the merits. "[A] a district court may not alter or enlarge the scope of its judgment pending appeal . . . ." N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). "The standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may enforce its judgment but not expand upon it." Am. Town Ctr. v. Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th Cir. 1995) ("[S]ince the district court's . . . orders were already on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds which it had required defendants to provide in its . . . orders." (emphasis added)). Any amendment of an order without jurisdiction is a "nullity." Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) ("Since the district court was without jurisdiction to amend its order . . . the Amended Order . . . is a nullity."); United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) ("In the present case, the 12 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 14 district court's order is 'null and void since that court was without jurisdiction . . . after the appeal had been taken.'"). Plaintiffs' Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis to issue licenses to the "Named Plaintiffs." The resulting Injunction enjoined Davis to issue licenses, expressly and only, to the "Plaintiffs." The scope of the Injunction could not be clearer. There is no "confusion as to the Order's scope," as Plaintiffs facetiously allege in their thinly-veiled motion to "clarify." (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489.) Thus, expanding the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world who wants a marriage license in Rowan County—can in no way be described as a clarification. The expansion of the class is an expansion of the Injunction, which the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity, and unquestionably is due to be reversed on the merits. II. Davis is substantially more harmed than the named Plaintiffs absent a stay of the Expanded Injunction pending appeal. In weighing the harm that will occur as a result of granting or denying a stay, this Court generally considers three factors: "(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided." Michigan Coal., 945 F.2d at 154. The "key word" in this consideration 13 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 15 is "irreparable," and the harm must be "both certain and immediate, rather than speculative or theoretical." Id. Given the strength of Davis' position on the merits, her required showing on irreparable injury is reduced. "The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury [the moving party] will suffer absent the say. Simply stated, more of one excuses less of the other." Mich. Coal., 945 F.2d at 153 (internal citation omitted). In other words, "a stay may be granted with either a high probability of success and some injury or vice versa." State of Ohio v. Nuclear Regulatory Comm 'n, 812 F.2d 288, 290 (6th Cir. 1987). Nonetheless, Davis's harm from the denial of a stay will be both real and irreparable. Pursuant to the Release Order, the district court is now supervising the operations and personnel of the Rowan County Clerk's Office, including Davis as the Clerk, and her deputy clerks. (R.89, Release Order, PgID 1828.) Far from being straightforward, however, the Release Order's command that "Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses" substantially and ambiguously interferes with Davis' ability to manage the legitimate affairs of her office which are unrelated to her individual position on marriage licensing. For example, Davis' management judgment to assign a particular deputy clerk or clerks exclusively to non-marriage-licensing duties—based on the needs of the 14 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 16 office10—could be deemed "interference] . . . in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses . . . ." (R.89, Release Order, PgID 1828.) Furthermore, the Release Order's directive conflicts with Davis' own legal duty, as an employer, to consider and grant as appropriate any deputy clerk's request for religious accommodation relating to marriage licenses11 under laws like Title VII and the Kentucky RFRA. These ambiguous burdens on Davis' management of the affairs of her office all carry the specter of new (and presumably, more severe) contempt sanctions, and the threat is indefinite because the Expanded Injunction opens the Injunction's relief to everyone (in the world) who may desire a Kentucky marriage license issued in Rowan County. The harm from having to operate under this constant threat is irreparable, for even success on the merits of Davis' appeals cannot restore the months of constant strain imposed on Davis, her office, and her employees by the district court's intrusive supervision. The foregoing burdens and threats of contempt sanctions are more than hypothetical; Davis has already spent six days in jail that Plaintiffs could obtain the relief ordered by the original Injunction (while its merits are still on appeal). But, such burdens and threats are unnecessary and improper. As an order of enforcement, the Release Order serves no purpose with respect to the original Injunction because __________ 11 See supra, n. 8. 15 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 17 only the Plaintiffs were granted relief in the original Injunction, and the district court is already "satisfied" that Plaintiffs have received their ordered relief. (R.89, Release Order, PgID 1827-28.) Thus, the district court only has an enforcement interest under the Expanded Injunction which, as shown herein, is null and void as exceeding the district court's jurisdiction. Only a stay of the Expanded Injunction pending Davis' appeal will avoid this onerous and improper exercise of enforcement power. In stark contrast to the threat of sanctions hanging over Davis each day she enters her office while waiting for relief from an impartial audience in this Court on her appeals, Plaintiffs will suffer no harm if the Expanded Injunction is stayed pending appeal. Plaintiffs have already received the benefits of the Injunction, to the "satisfaction" of the district court. (R.89, Release Order, PgID 1827-28.) Plaintiffs received no additional relief from the Expanded Injunction; staying its enforcement pending Davis's appeal cannot harm them. III. The public interest favors granting a stay. No public interest is served by upholding an order exceeding a district court's jurisdiction. To the contrary, the public is only served by the disregard of any such order, which is "null and void." See Holloway, 740 F.2d at 1382. Furthermore, the federal court supervision over Davis' office imposed by the Release Order, in enforcement of the Expanded Injunction, violates established principles of federalism and comity, usurping the role of a publicly elected official 16 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 18 in the Commonwealth of Kentucky and invading the province, discretion, and affairs of her office. It is also contrary to contempt principles, for in devising enforcement remedies, federal courts are to "take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." Milliken v. Bradley, 433 U.S. 267, 280-81 (1977). Indeed, it is incumbent upon federal district courts that sanctions imposed against state officials should be the "least intrusive" remedy available. See Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984); Spallone v. U.S., 493 U.S. 265, 276 (1990). The public is not served by the violation of such principles for any length of time. As shown herein, from the commencement of this case, Plaintiffs have received procedural preferences, notwithstanding even fundamental jurisdictional defects. Davis has received the opposite, culminating in incarceration for conscience, and the threat of more severe sanctions under an invalid order which the district court had no jurisdiction to enter. For all of the foregoing reasons, Davis requests the following: 17 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 19 RELIEF REQUESTED Appellant Kim Davis respectfully requests that this Court: (1) grant immediate consideration and (2) enter an order staying the district court's September 3, 2015 Expanded Injunction pending final resolution of the appeal in this Court. DATED: September 10, 2015 A.C. Donahue Respectfully submitted: Horatio G. Mihet, Counsel of Record 18 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 20 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of September, 2015, I caused the foregoing document to be filed electronically with the Court, where it is available for viewing and downloading from the Court's ECF system, and that such electronic filing automatically generates a Notice of Electronic Filing constituting service of the filed document upon the following: William Ellis Sharp Daniel J. Canon William M. Lear, Jr. Palmer G. Vance II Daniel Mach James D. Esseks - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 21 /s/ Roger K. Gannam Roger K. Gannam
Plaintiffs-Appellees,
v.
KIM DAVIS, Individually, Defendant-Appellant.
DONAHUE LAW GROUP, P.S.C. Roger K. Gannam
P.O. Box 659 Jonathan D. Christman
Somerset, Kentucky 42502 LIBERTY COUNSEL
(606) 677-2741 P.O. Box 540774
ACDonahue@DonahueLawGroup.com
Orlando, Florida 32854
(800) 671-1776
Counsel for Appellant Kim Davis
1 Davis presented substantial arguments against the merits of the Injunction in its motion to stay the Injunction pending appeal filed herein. (Doc. 15-1.) Davis will fully address the merits of the Injunction in her opening brief on the merits, to be filed with this Court at the appropriate time.
2 Expressly to avoid disparate treatment of any couple, Davis discontinued the issuance of all marriage licenses after Obergefell. (R.26, Prelim. Inj. Hr’g Tr. July 20, 2015, PgID 259:6-16.)
3 Because the relief sought by Plaintiffs in their preliminary injunction motion was personal to them, no evidence was presented on their Complaint’s class allegations or request for class-wide relief. Plaintiffs did not file their motion for class certification until August 2, 2015.
5 These pending motions included Plaintiffs’ motion for preliminary injunction (R.2), Davis’ motion to dismiss Plaintiffs’ Complaint (R.32), and Davis’ motion for preliminary injunction (R.39).
6 In her response brief opposing Plaintiffs’ contempt motion, Davis specifically stated that she opposed Plaintiffs’ thinly-veiled motion to “clarify” the Injunction, and intended to file a written opposition in accordance with the Local Rules (21 days after service). (R.72, Contempt Resp., PgID 1542.)
7 The district court memorialized this most severe of contempt sanctions against Davis by a mere “minutes” order (R.75 (the “Contempt Order”)); no formal written order has been entered. (R.78, Contempt Hr’g, PgID 1651:21-24 (“I haven’t decided if I’m going to enter a written order or not. I probably will enter some sort of written order following up the Court’s decision.”).) Davis separately appealed the Contempt Order to this Court (R. 83, Contempt Order Notice of Appeal), which appeal has been docketed as Case No. 15-5978. Davis also filed therein, on September 8, 2015, an emergency motion to stay the Contempt Order pending appeal. As shown in Davis’ emergency motion to stay the Contempt Order, and as will be more fully developed in Davis’ brief on the merits of that order at the appropriate time, the district court failed to provide Davis requisite due process in the contempt proceedings. Among other fundamental errors, the district court provided no notice that it would significantly expand and alter its Injunction at the contempt hearing, while the Injunction was already on appeal, and then confine Davis to prison based upon the ultra vires and expanded preliminary injunction.
8 One deputy clerk, Kristie Plank, has the primary responsibility within the Rowan County Clerk’s Office for servicing automobile dealers, a critical position within the office which does not include the issuance of marriage licenses. (R.78, Contempt Hr’g, PgID 1698:25-1705:5.) She expressed concern with assenting to the issuance of marriage licenses to the extent it would interfere with her legitimate existing responsibilities. (Id.) Another deputy clerk, Melissa Thompson, tearfully agreed to issue licenses under the court’s order, but was clearly under duress, stating, “I don’t really want to, but I will comply with the law. I’m a preacher’s daughter, and this is the hardest thing I’ve ever done in my life . . . . None of us hate anybody. It’s just hard.” (R.78, Contempt Hr’g, 1692:17-1697:8.)
10 See supra, n. 8.
Donahue Law Group, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
ACDonahue@DonahueLawGroup.com
/s/ Roger K. Gannam
Roger K. Gannam
Jonathan D. Christman
Liberty Counsel, P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
hmihet@lc.org / rgannam@lc.org / jchristman@lc.org
Counsel for Appellant Kim Davis
ACLU of Kentucky
315 Guthrie Street, Suite 300
Louisville, KY 40202
sharp@aclu-ky.org
Laura E. Landenwich
Leonard Joe Dunman
Clay Daniel Walton Adams, PLC
462 S. Fourth Street, Suite 101
Louisville, KY 40202
dan@justiceky.com
laura@justiceky.com
joe@justiceky.com
Counsel for Appellees
Stoll Keenon Ogden PLLC
300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
william.lear@skofirm.com gene.vance@skofirm.com
Counsel for Third Party Defendants-Appellees
Heather L. Weaver
ACLU Foundation
915 15th Street, NW, Suite 6th Floor
Washington, DC 20005
dmach@aclu.org hweaver@aclu.org
Ria Tabacco Mar
ACLU Foundation
125 Broad Street, 18th Floor
New York, NY 10004
jesseks@aclu.org rmar@aclu.org
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
rgannam@lc.org
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#1. To: Too Conservative, SOSO, redleghunter, Vicomte13, A K A Stone, Pinguinite, Liberator (#0)
Ping. Note: page numbers at bottom start on page 2 with the number 1 and are thus out by one throughout. The page numbers at the top of each page appear correct.
I believe you pointed this out several times and the naysayers were numerous. You have clearance to proclaim: "see I told you so.":) To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
Meh. Davis is saying the judge has no authority to grant an expansion as a district court judge. This may be true. Davis then asserts that since the original 4 couples have all had their chance to get married in her absence, there are no longer any reasons to allow the expansion of the class of plaintiffs. The Sixth Circuit may find that Bunning did overstep in expanding the class. Or they might not as it is only based on precedent, not legislated law. It can easily be anticipated that even with the 4 original couples married that many other couples will want a Rowan county license in the meantime as this office processes hundreds (or thousands) of marriage licenses per year. So the Sixth Circuit may allow that Bunning overstepped but then uphold his solution because the Sixth Circuit does have the authority to expand the class of plaintiffs which Davis asserts that Bunning lacks. Davis is seeking permission from the Sixth Circuit to stop issuing licenses again as she continues her attempts at appeals in higher courts, something that could take years, given the glacial pace of the court system in the modern era. To grant Davis her wish, the courts will have to agree to let her stop issuing Rowan county licenses for months or years as she works her way through appeals in the courts. I just don't see that happening.
Davis is just a rabble rouser looking for self glory about nothing. She is a officer of the county and must follow the laws not her recent "religious convictions."
The case turns, and fails, on footnote 1. Yes, Davis filed appeals, but the appeals were frivolous. Gay marriage is a constitutional right, and Davis' actions, including the appeal, were (and are) an invidious attempt to prevent people from exercising their constitutional rights. Her lawyers claim that there were substantial arguments in her brief against the injunction, but as a matter of legal fact those arguments are not (or will be found not to be) substantial: she is simply seeking to evade doing her constitutional duty, and to delay doing it as long as possible. The Supreme Court refused to hear her case, and the Sixth Circuit may grant her a hearing, but will then move to rapidly dispose of it. Marriage is within the sphere of privacy that IS a right, and the Supreme Court has found even gay marriage to be a constitutional right. It is stare decisis. Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all. The notion that people can just "go to the next town" is not valid for constitutional rights. Blacks could just "go to the next hotel", or the next restaurant or store, but the whole point of the Court decisions, then and now, is to compel EVERYBODY who faces people in government or in commerce to respect the constitutional rights in question of everybody else. The Sixth Circuit is not going to permit any delay, and is not going to give her a long hearing. They're going to slap her down and uphold the injunctive relief granted by the judge. Nor will the Sixth Circuit permit Davis and her lawyers to play the delaying game. It will be very much as it was with the birthers: the courts are not interested in the argument. And in this case the Supreme Court has decided that gay marriage is a constitutional right. Most of the judiciary agrees. The Sixth Circuit is not going to allow itself to become a vehicle by which individual officials assert what amounts to a right of rebellion against provisions of the Constitution they do not like. And it isn't going to permit things to dissolve into a circus either. The Supreme Court has spoken, twice - first in the gay marriage decision, and second in their refusal to hear Davis' case when she first brought it to them. The District Judge already resorted to jailing for contempt, and a work-around has been found for this rebellious official. She has no case on the merits of her actions: they are unconstitutional, and the Sixth isn't going to let itself be harnessed up so that she can play a delaying game to thwart the Supreme Court. She can file briefs, but the Courts will swiftly dispose of them. In the end, she loses in the American Court system,. You cannot stand against a recent constitutuonal decision and win, especially not a popular one.
So is the free exercise of religion. A first amendment right, not a "right" created out of thin air by the court. Are you saying that gay marriage is a constitutional right which trumps all other rights?
Where rights butt up against rights, the courts decide where the line falls. The Supreme Court has decided that marriage is a right, and that gay marriage falls within that right. Nobody is disputing Ms. Davis' right to be a Christian. However, with all rights there are time place and manner restrictions. Gays cannot come into an elementary school and marry in the kids' lunchroom, and a married couple cannot carry out their right to conjugal relations on a table in the public library. The right to keep and bear arms does not extend so far as to permit concealed carry during a tourist tour of the White House. Where rights confront rights, there is a line drawing exercise, and the courts draw those lines. No right can ever be absolute, because the whole government will go to pieces over that right if it were. Example: free speech is important, but it does not extend so far as to permit generals to publish national weapons secrets. Ms. Davis can practice her religion. But she cannot practice it in a way that acts as a bar to people obtaining a marriage license from the state. People have the right to marry, and the state has to issue them the licenses. if an agent of the state has such misgivings about that because of her religion that she cannot do it, then she has to find another job. She cannot establish her religion as a barrier to people exercising their rights through a government agency. A comparable case: Jains are vegetarians. Meat inspectors are veterinarians. A Jain veterinarian becomes a meat inspector for the USDA, and then uses his authority as a government agency to systematically shut down every slaughterhouse as unsanitary, using his religious definition of unsanitary. He is doing his job, and he is exercising his religion. And in the process he is destroying a major industry. Freedom of religion does not go so far as to permit public officeholders to enforce their religious standards on others through their discretionary powers. If they do, the line needs to be drawn. The Supreme Court drew one line: marriage, including gay marriage, is a right. A local official exercised her right os religious freedom. An a district court drew the line and said that no, as a county clerk charged with issuing licenses to do something that is a constitutional right, your religious freedom does not go so far as to permit you to deny everybody their rights to exercise their rights. The court drew the line, so that's where the line is. She did not accept the line, broke the law by defying the court, and went to jail. Another example: equality before the law is a constitutional right. So is the right to conduct private business. Can private businesses decide to exclude unruly patrons? Yes. Can private businesses decide to exclude unruly patrons who are black? Yes. Can private businesses decide preemptively to exclude ALL blacks, because they might become unruly, or because the owner does not like blacks? No. The blacks have the right to have access to things that are in the stream of commerce. People have loudly and bitterly complained otherwise. They are wrong. The lines where rights rub up against each other are set by the Supreme Court and the federal courts beneath the Supremes. One can dislike it as much as one wishes, but that IS the constitutional law, that IS the system. If people find that intolerable, they should either build up a sufficient political momentum to change it, or they should emigrate. Or, if they have sufficient numbers, I suppose they could stage a revolution. That would be illegal, but if a revolution is successful, the victors write new laws. The problem with revolutions is that they usually fail, because they usually come from angry minorities who then get squashed. Most Americans agree with the Supreme Court on gay marriage - that is what the opinion polls show now. We see with Davis and others where the line is drawn. When people test the line, it will be drawn brighter. People are not going to actually rebel over this, therefore, the hard, firm answer is that until the revolution, the hard, firm line between where religious liberty ends and rights to service begin is where the court draws it, and nowhere else.
You make this distinction. The American system does not make any such distinction. In fact, the Supreme Court would say that it hasn't made anything up. It has, rather, taken a right that is there in the Constitution and made it CLEAR. And where we agree with the outcome, we say that the Supreme Court is right. Where we don't, we grouse of an imperial judiciary.
Would you say that a woman who is sexually harassed at work has to find another job if that bothers her? Don't men have a right to free speech? "But she cannot practice it in a way that acts as a bar to people obtaining a marriage license from the state." Pffft! There are plenty of other marriage license bureaus in the state which will issue a marriage license to perverts. Besides, a number of the perverts who applied were not even from her county, but went there to force her to violate her religious beliefs.
Yep. That "right" has been sitting there in the U.S. Constitution for almost 150 years and no one ever saw it. It took this extraordinary, learned court to find it and merely clarify it, right? And now "gay rights" are federally protected from hate crimes, hate speech and discrimination, and those "rights" also trump all others in the U.S. Constitution. Wow! Those justices
Bullshit you liberal. Tell the slaves to get back to work. Dred Scott sais they were slavew and have to worik. Don't go kiilling no slave masters. The government says jump. Then you support faggots pretending. You are for Sodom and Gomorran and Gonohrea.
Marriage is a religious practice, and our various levels of govts have tried to codify this practice for political reasons. SCOTUS has given us it's opinion. Let them try to enforce it. Under Article VI, every official is bound to honor all laws made in "pursuance thereof". ---- 'Laws' made about marriage are arguably NOT made in pursuance of constitutional principles. ---- Thus, Davis has basis to object, at her own peril.
You agenda posters are a hoot. Hypocritical hoots. In this case, you insist on Davis following the law, even if she disagrees and you want her head if she tries to fulfill her government thug job with personal conviction... but if it's a cop honoring his oath by enforcing DRUG LAWS, you think the cop should buck the laws, his policy and his superiors by not doing his job because YOU would like the officer to enforce with YOUR personal convictions. Each and every one of you agenda posting liberal drug loving libtards absoloutly disgust me with your hypocrisy I'm the infidel... Allah warned you about. كافر المسلح
She's a goddamned government bureaucrat, governed by laws to do her fucked-upped job just as goddamned cops are supposed to do their respective jobs; but government bureaucrats are always making up their rules of enforcement, beyond the law; we call their braind of work: the colour of law. Why? They have a self-centerd GAWD complex to enforce THEIR laws.
Tokyo Rose could not have said that any better. To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
She just became a "jesus freak." She doesn't even know what a Bible is, just yet. If she did, she would be sacrificing her first born.
What a bozo comment.
To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
Truth hurts, doesn't it? She just became the "County Clerk" too. So, she has only recently imposed her "RULES OF LAW" on her local applicants.
I did not know you lived in her county and required a marriage certificate.
To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
Good. Because I do not live in "her" county and do not require a marrige certificate. But, she is duty bound to uphold the laws of the county (not "her" county) and state and the federal government. She is NOT to impose "her" laws, rules or regulations or religious beliefs. She should QUIT her job if she finds conflict about receiving a paycheck from the county and the laws she is sworn to uphold.
When Bucky and Pete wanna marry, they want the pathway cleared prior to travel. Meguro would be really pissed at this lady too. Even tho Meguro was banished to pickle smooching Hell, there are still quite a few liberal Commie Sanders fag lovers here. I'm the infidel... Allah warned you about. كافر المسلح
Oh for God's sake Stone, take a Stresstab. I AM NOT THE SUPREME COURT. I AM NOT THE SIXTH CIRCUIT. MY will does not run this country. I AM a very experienced lawyer. I am telling you all how it IS, not how I wish it to be. You guys remind me of the French general staff before World War II. They HAD an officer, heavily decorated in World War I, who preached combined arms, air and armor, don't build forts, build maneuvering elements, massed tanks to breakthrough and exploit into the enemy's rear, supported by tactical airpower - what would come to be called the "blitzkrieg". He wrote the book on it. The Germans BOUGHT the book, thousands of copies. Hitler read the book, and he gave it to his generals, and THEY read the book, and trained to it. The "blitzkrieg" was not developed by the Germans, it was conceived and mapped out by a French war hero named Charles de Gaulle. The French didn't just ignore de Gaulle, the Army went after him to scotch his career. He had two Medals of Honor equivalents from World War I - a real hero, a real genius, but he was telling things they didn't want to hear, so they kept him a Colonel until the last minute, then made him a General and ignored him. and vilified him even as their country went to pieces. I'm de Gaulle here, TELLING YOU GUYS how it IS. It ISN'T how ANY of us would like it to be. The situation is absolutely shitty. But it IS what it is, and pretending it isn't, or that some voodoo right wing read of the Constitution is going to rise like an angel from the 25% and win the day is ridiculous. Davis has appealed. She is not going to WIN the appeal, and she is not going to successfully delay anything. This gay movement is not going to be stopped by casting constitutional spells - the Constitution does not EXIST, except as ideas in people's minds, and the majority of people ARE NOT strict constructionists. The majority of the judges MOST CERTAINLY are not. It's one thing to wish that things weren't as they are, but it's another thing to try to catch a falling knife. Davis has lost. She cannot possibly win in this America with these judges believing as they do, and with the whole apparatus of police, marshals, Army, Congress and President arrayed in a certain belief set. She is the French Army and it is 1940. No amount of twisting and turning and screaming at the staff is going to un-lose the battle. And I'm your General de Gaulle TELLING YOU HOW IT IS, and I've BEEN telling people how it is for a long time. The French kept him out of power, and the British kept Churchill out of power, and they lost or damn near lost their country for doing it. Screaming at me is stupid. I am not advocating for homosexuality. I am TELLING YOU how the game is going to play out. If you want to write fairy tales about how some mystery Constitution is going to rise up with legions of angels wearing tricorn hats and SAVE America, write away. In the real world, Davis is toast and her argument will be a complete rout. She will win nothing, and she will either comply, step aside and let others do it, or she will go to jail. If I could raise my hand and make lots of people I disagree with disappear, I would probably do it,. But I can't. And neither can anybody else on the right. And the REASON is that we have allied ourselves with schmucks and compromised with people who were greedy and had their own self-interest at heart, and who were NEVER on our side. That has been visible for a long time. And people like you have been shooting messengers like me for a long time. YOU and your ilk have bought us this disaster. I've been screaming the truth for a long time, and getting shot at by guys like you. Well, I'm STILL telling you the truth. I'm telling you WHY you are losing, and WHY you are going to keep losing. The Constitution doesn't HAVE a guardian angel, and God is not going to rescue it. Only men have angels, and shooting at your own allies, like you just did, is what has already lost you your country. There is actually a path to VICTORY. But it never leads through the valley of self-deceit. If you're screaming at me as a sodomite, then you have lost your mind. You are wrong in every sense. You should be silent, sit down, and listen to the truth. As it is, you're like a Taliban dead- ender charging the guns. You don't like sodomite marriage (and neither do I), but NOBODY THE FUCK CARES what we don't like. And the CONSTITUTION DOES NOT EXIST as a force in our arsenal. We are very much the weaker side. The other aide has the government, the army, the court, the media and the money. All we've got is GOD, and that IS enough, but ONLY if we actually OBEY HIS COMMANDMENTS. And going off on a hotheaded rant against you own allies, who are telling you the TRUTH is just about as far from God as you can get. It's why you lose. Attacking me is why you lose. Attacking people like me is why you lose. I am on your side, but I am smart, and I don't go berserk and charge the guns. Remember that "be as subtle as serpents" part? Jesus said that. That is me, the subtle serpent ion your side. If you squash me, the Devil squashes you. You need to stop screaming in anger at your own allies and listen. You're the French General staff. I'm de Gaulle. It's 1i936. I can tell you what to do to win, but you have to LISTEN, and stop screaming your head off.
Finally, a realist @LF presents an accurate picture of reality.
If the argument in the instant appeal is accurate: Davis' argument is, in part: The district court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. There is no doubt as to Davis' likelihood of success in obtaining reversal of the Expanded Injunction on the merits. "[A] a district court may not alter or enlarge the scope of its judgment pending appeal . . . ." N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). "The standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may enforce its judgment but not expand upon it." Am. Town Ctr. v. Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th Cir. 1995) ("[S]ince the district court's . . . orders were already on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds which it had required defendants to provide in its . . . orders." (emphasis added)). Any amendment of an order without jurisdiction is a "nullity." Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) ("Since the district court was without jurisdiction to amend its order . . . the Amended Order . . . is a nullity."); United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) ("In the present case, the 12 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 14 district court's order is 'null and void since that court was without jurisdiction . . . after the appeal had been taken.'"). Plaintiffs' Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis to issue licenses to the "Named Plaintiffs." The resulting Injunction enjoined Davis to issue licenses, expressly and only, to the "Plaintiffs." The scope of the Injunction could not be clearer. There is no "confusion as to the Order's scope," as Plaintiffs facetiously allege in their thinly-veiled motion to "clarify." (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489.) Thus, expanding the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world who wants a marriage license in Rowan County—can in no way be described as a clarification. The expansion of the class is an expansion of the Injunction, which the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity, and unquestionably is due to be reversed on the merits. If the argument is valid, the Expanded Injunction was a nullity, issued without jurisdiction. Every action taken pursuant to the nullity lacked jurisdiction and was a nullity. Below is the transcript of the hearing debate of this issue in relevant part, transcript pp 8-19, PDF pp 71-82. [8] [...] Okay. We have several motions that are pending. The motion that we're here to decide is Docket 67, the motion to hold Ms. Davis in contempt. There was a response filed yesterday. There was also a motion filed on Tuesday. - - - - - [9] Today's the 3rd, right, Madam Clerk? Is that right? DEPUTY CLERK: Yes, Your Honor. THE COURT: Okay. Tuesday of this week, a motion pursuant to Rule 62(c) of the Federal Rules of Civil Procedure to clarify the preliminary injunction pending appeal. And then just yesterday there was a motion filed by defendant, Davis for an injunction pending appeal, as well as a motion by Senate President Robert Stivers, which I've mentioned earlier, for leave to file a brief as an amicus. Mr. Gannam, Mr. Christman, I know you had indicated in your response in a footnote -- I think it's footnote 2 to Docket 72, that you want to file a written response to the motion filed by plaintiffs on Tuesday. We're here today. The case wasn't noticed for that hearing. However, I think it makes sense to take that motion up today. So whatever you would file in a written response, I'm going to go ahead and let you be heard on that today. One other thing I want to mention, there was a footnote -- I think it's also in that same response -- where you objected to the page limitation. - - - - - [10] I'm not going to hold you to the page limitation. I'm not just going to consider the first five pages. You filed seven pages in your response. They filed seven pages in their motion. I'm considering the seven pages of the motion, as well as the seven pages of your response. So your objection as it relates to the length of the pages is sustained. So I know you had objected formally to that, but I read through that, and I just want to make sure that you appreciate I'm going to consider your entire response. And I have read your response. And it was just filed yesterday. There's been a lot of paperwork filed in a very short amount of time, and we have been meeting, I don't want to say around the clerk, as some of us have to have a little bit of sleep, but we have been trying to prepare for this hearing as best we can. So I want to go ahead and hear you from now on Docket 6 I think it's 68, which, in essence, for everyone in attendance, as you know, procedurally, the Court granted the plaintiffs' motion for the preliminary injunction back on August 12th, enjoining Ms. Davis from applying her "no marriage licenses" policy to future marriage licenses requested by the - - - - - [11] plaintiffs in this case. The motion itself seeks to clarify pursuant to Rule 62(c) of the Federal Rules of Civil Procedure, to have that injunction include any future marriage license requests submitted by plaintiffs or any other individuals who are legally eligible to marry. That was filed on the 1st. There are a couple of companion cases, 46 and I think 4 9? 51? I can't remember the numbers, but there are three cases now pending with various plaintiffs. You represent the defendant on all those other cases; do you not, Mr. Gannam? MR GANNAM: We do, Your Honor. THE COURT: Okay. So I want to just let you -- I want to give you a chance to be heard, and then I'll give you a chance, Mr. Sharp. Because I want to take up this issue, and then we'll move on to the contempt issue. MR. GANNAM: Thank you, Your Honor. We object to proceeding on the motion to clarify or modify the injunction that's already been issued. First of all, just because of the timing. This hearing was called quickly. That motion was filed, and we simply haven't had adequate time to prepare - - - - - [12] to -- to argue against that motion. THE COURT: Well, I've had very little time to prepare myself, so I'm -- the issues are the same. All the issues you've raised in 1544, the defenses that your client has raised, the responses, I'm sure, would all be the same. It's the same issue for each case. If I were to -- for instance, if the order only applies to the four plaintiffs -- I guess eight plaintiffs in this case -- it would be -- it would not be a violation perhaps of the Court's order dated 8-12-2015, if your client, or any of the deputies, did not issue a marriage license to anyone eligible to marry who aren't these plaintiffs because that's not covered under the order. Would you agree with that? MR. GANNAM: I agree that would not be a violation of the order, yes, Your Honor. THE COURT: Okay. So why would there be -- why should I parse this out? And I realize from the very beginning, and you have in your written pleadings, seemed to take issue with the Court's attempt to try to expeditiously take up its docket in this case. Why doesn't it make sense to consider all of the cases together, at least as it relates to the other plaintiffs who would be eligible to marry? - - - - - [13] MR. GANNAM: Your Honor, first of all, the -- THE COURT: Well, your objection to not taking it up today will be overruled because I really want to hear you on this. MR. GANNAM: The plaintiffs moved for preliminary injunctive relief against -- with respect to themselves only. They have -- THE COURT: I understand that. MR. GANNAM: And the -- THE COURT: At that time, I think they were the only plaintiffs that had been potentially identified. MR. GANNAM: They have a -- a pending motion for class certification -- THE COURT: That I stayed. MR. GANNAM: -- which has been stayed. They're essentially seeking a class-wide -- THE COURT: I don't think -- I'm not going to certify a statewide class. I'm -- I'm interested in the Rowan County Clerk because she's a defendant in all three of the cases that have been filed on my docket here in Ashland. MR. GANNAM: Well, their class that they've alleged is the class consisting of Rowan County residents. And so to grant the injunction, it would - - - - - [14] apply to all Rowan County residents would essentially be granting a class-wide injunction based on the facts that they've alleged here. THE COURT: Well, why shouldn't -- wouldn't it seem rather odd to only have an injunction that applies to four couples versus -- if you had John Doe and someone other than John Doe who would be eligible to marry Jane Roe, or what have you, same-sex, opposite-sex, why wouldn't they -- doesn't it seem a little bit unusual to have an order that would apply to some, but not others? MR. GANNAM: Your Honor, that's the motion that the plaintiffs filed. THE COURT: I understand, but they're not seeking to amend that. MR. GANNAM: And, Your Honor, our objection is not only on the timing, but also as to the fact that the prior order is on appeal. And what they're essentially seeking to do is to change that order and to do something else, to expand it. And this Court does not have jurisdiction to -- to do anything with respect to that prior injunction while it's on appeal, so this would have been treated as a new injunction. THE COURT: Would you prefer that I order that my 8-12-2015 order, change the caption and just - - - - - [15] enter a preliminary injunction as it relates to those plaintiffs without -- it's not my intention to do that, but the issues are exactly -- well, seem to be fairly consistent throughout the three cases, this one and the two companion cases. MR. GANNAM: Well, the difference, Your Honor, is in the plaintiffs' case, they could each allege and put on evidence as to their eligibility to marry, for example. THE COURT: And I think they have done that. MR. GANNAM: Whereas they're now seeking to expand an injunction to cover unnamed members of the putative class-- THE COURT: Who would otherwise be eligible to marry. MR. GANNAM: But we have -- unless it's a class-wide injunction, they're essentially asserting rights that haven't been established yet in this court. THE COURT: Okay. All right. What's your response? MR. SHARP: Your Honor, 62(c) specifically contemplates and authorizes this Court to modify the injunction while an interlocutory appeal from the preliminary injunction ruling is pending. - - - - - [16] The Court is correct that it does retain jurisdiction to actually grant plaintiffs' motion. The Court is also correct insofar as the legal issues and the relevant facts regarding the disposition of plaintiffs' motion to modify or amend that preliminary injunction ruling are identical, not only as to the plaintiffs in this case, but to any other individuals who would otherwise be qualified to marry. We're not asking the Court to compel the Rowan County Clerk's office to issue marriage licenses on request, but rather upon certification that other legal requirements are met. As the Court's aware, prior to Obergefell, the Rowan County Clerk's office issued 99 marriage licenses this year, 214 last year. Obviously, we're talking about hundreds of people who are affected and are continuing to be denied marriage licenses because of the "no marriage license" policy. THE COURT: All right. A brief reply. MR. GANNAM: Your Honor, essentially, they're seeking to get relief that they didn't request in the original motion and -- THE COURT: I know. They're requesting it now. I recognize they did not request it in the original motion. - - - - - [17] GANNAM: And so it can't be a clarification or a modification of that prior order because it would be -- it would be an expansion of that prior order, which is -- which is improper while it's on appeal, so this must be treated as a new motion for preliminary injunction. And we would maintain our objection that it would be improper to proceed on that today with the -- the little notice that we've had and without the opportunity to -- to again, put on evidence as we deem necessary to establish our defense to it. THE COURT: All right. And I want to give you all an opportunity to be heard, to the extent you wish to be heard on this. Ms. Parsons? MS. PARSONS: The County has no position on this, Judge. THE COURT: All right. Mr. Watkins? MR. WATKINS: No, Judge. THE COURT: Mr. Vance? MR. VANCE: No, Your Honor. THE COURT: All right. I must apologize -- I'm -- you've cited Rule 62(c) in your motion. I may have an older version, and I have to apologize; I have a cataract, so my right eye is not as good as it could be. - - - - - [18] All right. Thank you. I did have an older version. All right. Over the plaintiffs' objection -- defendant's objection, I'm going to grant the motion, finding that the prior injunction be modified to reflect that it preliminarily enjoins Ms. Davis in her official capacity from applying her "no marriage license" policy to any future marriage license requests submitted by the named plaintiffs in this case, or -- and this is the modification -- or by any other individuals who are legally eligible to marry in the Commonwealth of Kentucky. And here's the order. We'll go ahead and enter the order. I have signed it dated today. Madam Clerk. Thank you. DEPUTY CLERK: Thank you, Your Honor. THE COURT: And I'll rely upon on Rule 62(c). MR. GANNAM: Your Honor, may I make a --- THE COURT: And your objection's overruled. MR. GANNAM: May I make a request for a certification for immediate appeal of this order? THE COURT: You can appeal that, yes. That's part of the appeal. We'll just include that as part of the appeal. Any objection to that? - - - - - [19] MR. SHARP: No objection, Your Honor. THE COURT: Okay. Very well. So you can include that. And I'm sure someone has already requested the transcript of this proceeding. And the Sixth Circuit can certainly decide if that's appropriate. I do find, in granting that relief that's requested at Docket 68, the Court finds that given the fact that it does have two companion cases that involve, in essence, the very same allegations with the same lawyers, it just makes judicial sense to have the Circuit review the decision for all three of them. I'm not granting a class certification motion. But I do believe that allowing the injunction as it currently exists to apply to some, but not others, simply doesn't make practical sense, so that's the Court's ruling. All right. Let me now turn to the actual merits of the matter that's before the Court. [...] Here is the cited Rule 62: (a) Automatic Stay; Exceptions for Injunctions, Receiverships, and Patent Accountings. Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocutory or final judgment in an action for an injunction or a receivership; or (2) a judgment or order that directs an accounting in an action for patent infringement. (b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party’s security, the court may stay the execution of a judgment—or any proceedings to enforce it—pending disposition of any of the following motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a judgment; or (4) under Rule 60, for relief from a judgment or order. (c) Injunction Pending an Appeal. While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory three-judge district court, the order must be made either: (1) by that court sitting in open session; or (2) by the assent of all its judges, as evidenced by their signatures. (d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond. (e) Stay Without Bond on an Appeal by the United States, Its Officers, or Its Agencies. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department of the federal government. (f) Stay in Favor of a Judgment Debtor Under State Law. If a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. (g) Appellate Court’s Power Not Limited. This rule does not limit the power of the appellate court or one of its judges or justices: (1) to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending; or (2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered. (h) Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) In relevant part, "the court may... modify... an injunction on terms for bond or other terms that secure the opposing party’s rights. Modifying and expanding the injunction to cover the entire population of Rowan County does appear to secure any rights of any opposing party to the litigation. Does Rule 62(a) confer the authority claimed by Judge Bunning? Does the modification of the Injunction on appeal clarify its terms, or does the modification simply add the entire population of Rowan county, clarifying only the desire of Judge Bunning to add relief not previously sought. Due process is a right. If not followed, the offending Court may not get to sustain a ruling on the merits of a case. Strictly upon procedure, this may be like the case of Tom Brady's deflated balls. Upon Roger Goodell's violation of due process, the deflated balls belonged to Goodell. At the season opener, he was home playing with his deflated balls as the crowd chanted, "Where's Roger?"
Kim Davis has no "right" as an officer of the county government to impose her religious beliefs on anyone seeking lawful considerations within the duties she is bound to administer; the laws are not even in a contested situation so there is no ambiguity at all. She is going to lose her appeal with a BIG_SLAPDOWN; just watch and see. The county government can and will rescind any and all her authority as an officer for the county. In effect, she will be impeached or kicked out of office.
From Kim Davis' website, paid by the Rowan County taxpayers: Our office is here to serve the public in a friendly, professional and efficient manner. We are constantly striving to upgrade our services in order to better serve you. This website is our most recent attempt to better serve the people of Rowan county. Here you will find contact information, important forms and documents, land and legal records, and much more. Feel free to contact us via phone or fax during business hours, or use our convenient contact form and someone will get back to you as soon as possible. Thanks, So, she is a liar, a cheat and a thief. Moreover, she owes an apoligy to all citizens for her misconduct towards the People.
So if your neighbor would like your local police to kick your front door, with a no-knock search warrant, because your neighbor has noticed the unique smell of METH omitting from your house with hundreds of shady drug dealer like douche bags that stop over for a few minutes and leave... is that the "lawful consideration" the police should do for their communities they swore an oath for? I'm the infidel... Allah warned you about. كافر المسلح
Well, the cops would probably shoot and kill my dead dawg scruffy first. My mutt guards and defends my private property 24 hours a day; moreover, he is a US Presidential candidate.
It's one thing to wish that things weren't as they are, but it's another thing to try to catch a falling knife. Davis has lost. She cannot possibly win in this America with these judges believing as they do, and with the whole apparatus of police, marshals, Army, Congress and President arrayed in a certain belief set. She may win this appeal on due process, much as Tom Brady's win had nothing to do with the merits of the case. Of course, she will not "win" the supposed right to have her office not issue marriage licenses, a right nobody has asked for, and a blatant red herring. The court may be sent back to square one to start over again, but Rowan county will be made to issue marriage licenses. Kim Davis may win an accomodation, if such is reasonably available under Kentucky RFRA. Obergefell only requires that licenses be issued, it does not strike down any existing protection which calls for reasonable accomodation. Just as much of the Constitution is treated as a dead letter, the age of "do it or quit" is a dead letter under Title 7 and various RFRA laws. And RFRA applies to elected officials. The Court said: However, Judge Bunning may run into difficulty with the Kentucky RFRA which covers elected officials and provides, "The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest." The burden explicitly includes "indirect burdens." Quite obviously, Judge Bunning's definition of "being free to practice her Apostolic Christian beliefs" is not one shared by the sincerely held beliefs of Kim Davis. Judge Bunning appears to be skating on very thin ice, see RFRA and Tagore quoted below. Nor can the court rely upon a claim that a reasonable accomodation is not provided for by Kentucky law. Kentucky law has not been revised and does not even provide for same-sex marriage. Nor does the Court seem inclined to motivate the Great State of Kentucky to change its constitution and laws. And the Kentucky RFRA is an applicable Kentucky law. To what extent forcing one to perform any act to condone, or indirectly condone, same-sex marriage substantially burden's one's sincerely held religious beliefs may be gauged by public reaction and that Davis was willing to go to jail rather than to comply. Obviously, some find it very offensive to their religious beliefs. If it is slight enough to invoke RFRA, it is enough to require a showing that no accomodation is reasonably available. And a prima facie case invoking RFRA may invoke strict scrutiny. KENTUCKY RFRA http://www.lrc.ky.gov/record/13rs/HB279/bill.doc AN ACT relating to construction of the law. Be it enacted by the General Assembly of the Commonwealth of Kentucky: SECTION 1. A NEW SECTION OF KRS CHAPTER 446 IS CREATED TO READ AS FOLLOWS: Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities. - - - - - A Federal example of sincerely held religious belief, RFRA, accomodation, and strict scrutiny. https://scholar.google.com/scholar_case?case=18258632836338775341 Tagore v. US, 735 F. 3d 324, 328-29 (5th Circuit, 2013) 1. Sincerely held religious belief. On appeal, Tagore asserts that her evidence creates a genuine issue of material fact concerning the sincerity of her religious practice of wearing a kirpan with a blade longer than 2.5 inches. The sincerity of a plaintiff's belief in a particular religious practice is an essential part of the plaintiff's prima facie case under either Title VII or RFRA. See Weber v. Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000) (Title VII); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (RFRA). After reviewing hundreds of pages of deposition testimony and exhibits, the district court concluded that Tagore did not create a triable issue of fact that her sincere religious beliefs require her to wear a kirpan with a 3-inch, rather than the statutorily permitted 2.5-inch, blade. With due respect to the able court, this is slicing too thin. This court recently explored the threshold inquiry into a person's beliefs when discussing a prisoner's claim under the related Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Moussazadeh v. Tex. Dept. of Criminal Justice, 703 F.3d 781, 790-92 (5th Cir. 2012). Briefly, each case turns on its particular facts. Id. at 791. The specific religious practice must be examined rather than the general scope of applicable religious tenets, and the plaintiff's "sincerity" in espousing that practice is largely a matter of individual credibility. Id. at 792. In fact, the sincerity of a plaintiff's engagement in a particular religious practice is rarely challenged. Id. at 791. As Moussazadeh explains, "[t]hough the sincerity inquiry is important, it must be handled with a light touch, or `judicial shyness.'" Id. at 792 (quoting A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 262 (5th Cir.2010)). "[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread." Id. (fn. omitted). Both before and following Moussazadeh, claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff's credible assertions. See, e.g., Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir.2013) (Muslim prisoner's desire to wear a beard not challenged by TDCJ); Betenbaugh, 611 F.3d at 261-62 (Native American schoolboy wearing long hair a sincere religious belief; Texas RFRA parallels RFRA); Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599 (5th Cir.2008) (Odin worshiper's religious need for runestones and rune literature not challenged by TDCJ). There was ample evidence to create a genuine issue of material fact on the sincerity of Tagore's practice of wearing a kirpan with a 3-inch blade. The court's contrary decision focused on close questioning of Tagore in her deposition, which exhibited some ambiguity about whether her sincere beliefs require the kirpan blade, or the entire dagger, to exceed 3 [329] inches. Cf. Moussazadeh, 703 F.3d at 792 ("stray[ing] from the path of perfect adherence" does not eviscerate claim of sincerity). She adduced voluminous evidence from the Sikh community, however, that kirpans are mandated to be worn by the religion's adherents and although there are no detailed regulations for the kirpans' appearance, most Sikhs wear kirpans with blades longer than 2.5 inches. As the government acknowledged during the pendency of this appeal: Federal Protective Service, Policy Directive 15.9.3.1, Prohibited Items Program, Attachment 5 (2012) [hereafter, "Policy Statement"]. Tagore has worn her kirpan 24 hours a day after taking Amrit, with one exception when she travelled in an airplane. Tagore was willing to sacrifice her government employment for the sake of wearing a religiously significant symbolic kirpan. Tagore's actions, the independent evidence of Sikh practices, and the government's acknowledgement create a genuine issue of material fact as to her sincere belief in wearing a 3-inch bladed kirpan. Tagore v. US, 735 F. 3d 324, 330- (5th Circuit, 2013) Assuming, again, that Tagore succeeds in establishing a sincerely held religious belief that mandates her wearing a 3-inch kirpan blade, the remaining predicate to a prima facie RFRA case is whether the FPS's enforcement of Section 930(a) substantially burdened her religious practice. See Gonzales, 546 U.S. at 428, 126 S.Ct. at 1216. This is not a serious hurdle: she gave up her job rather than wear a shorter-bladed kirpan, cf. Sherbert v. Verner, 374 U.S. 398, 403-06, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and she risked violating federal law when she entered the Leland building while wearing it. 18 U.S.C. 930(a)(imposing a fine and up to 1 year imprisonment). Once a prima facie case is established, the government must show a compelling interest in enforcing that provision and that its means are the least restrictive to achieve its objectives. 42 U.S.C. § 2000bb-1(a)-(b)(1) and (2); Gonzales, 546 U.S. at 424, 126 S.Ct. 1211. RFRA thus applies strict scrutiny to government regulations that substantially burden a person's religious exercise. Surely, the government has a compelling interest in protecting federal buildings and the people in and around them, and Congress's choice in defining "dangerous weapons" that cannot be introduced into the buildings to include bladed instruments exceeding 2.5 inches must be given significant deference. The Supreme Court emphasized in Gonzales, however, that RFRA requires the government to explain how applying the statutory burden "to the person" whose sincere exercise of religion is being seriously impaired furthers the [331] compelling governmental interest. 546 U.S. at 430-31, 126 S.Ct. 1211. A "categorical approach" is insufficient, particularly if, as here, the statute includes exceptions to the prohibition,[5] cf. id. at 430-37, 126 S.Ct. 1211, and the government must produce evidence justifying its specific conclusion. The district court held that the government carried its burden as a matter of law with affidavit testimony that building security officers must apply Section 930(a) uniformly, consistently and rigorously; authorizing individualized case-by-case determinations would undermine security. The district court also held that the need for uniformity of application satisfied the least restrictive means test. Although the Supreme Court did not reach the less restrictive means test in Gonzales, it is settled that the government's is to explain "why alternative policies would be unfeasible, or why they would be less effective in maintaining institutional security." Spratt v. R.I. Dept. of Corr., 482 F.3d 33, 41 (1st Cir.2007). The district court rejected Tagore's citations to case law and instances in which Sikhs wearing kirpans have been granted permission to enter federal buildings, including the White House. Such examples, the court held, reflect isolated exceptions rather than the blanket individual exemption for which Tagore contends. The court also rejected Tagore's argument that she is covered by the exception in Section 930(g) that allows the bearing of "dangerous weapons" for "other lawful purposes." In this regard, it accepted the government's argument that this exception only extends to people like construction workers whose job-related duties require tools that might otherwise violate the statute. We recite very briefly the district court's reasoning as preface to the point that it has been practically undermined by FPS's decision to acknowledge kirpans as ceremonial weapons that may be allowed in a federal building either by exception or exemption from the statute. The December 2012 FPS Policy Statement, earlier noted, "establishes FPS policy for applying security force countermeasures to mitigate prohibited item entry at Federal properties." Policy Statement at 1. The statement repeatedly references processes that "include[] allowing exceptions and exemptions to prohibited items for ... religious exercise ... or other purposes as necessary or required by law." Attachment 2 to the statement prescribes "Procedures for Exceptions and Exemptions for Otherwise Prohibited Items," Policy Statement at 5, one of which is for "accommodations" under the Religious Freedom Restoration Act. Attachment 5 describes "Accommodations for Sikh Articles of Faith," and instructs FPS officers that kirpans with blades longer than 2.5 inches require an exception or exemption before being carried into a federal building. One must ask, why refer to "accommodations" and append this attachment to a document describing procedures for obtaining exceptions or exemptions if, as FPS contends against Tagore, case-by-case determinations are impractical or inconsistent with maintaining security? The fact that FPS promulgated this Policy Statement after the case concluded in the district court does not prevent our taking judicial notice [332] of its implication for the difficult and fact-sensitive inquiry that must accompany application of strict scrutiny under RFRA. Because the new policy contradicts the arguments previously advanced by the government for denying Tagore an exception or exemption for the wearing of her kirpan to the Leland building, the district court's application of strict scrutiny must be reversed and remanded for further analysis. In so doing, we emphasize that we express no opinion on the ultimate application of strict scrutiny because the government should be allowed to offer more evidence concerning its asserted need for uniform application of Section 930(a) and the impact of the new Policy Statement on this case. Precisely because kirpans may be dangerous weapons in the wrong hands or may fall into the hands of evildoers who are not Sikhs, there would seem to be support for certain limitations, e.g. on blade length, security clearance status of the bearer of the kirpan, the frequency of the bearer's visits to a particular federal facility, the degree or method of concealment, or degree of attachment to the person's body. All of these considerations, and more, may bear on the fact-intensive nature of the RFRA strict scrutiny test. Despite the importance of deferring to officials charged with maintaining domestic security, conclusional affidavits will be insufficient to overcome the policies and procedures embodied in RFRA. CONCLUSION For the foregoing reasons, the judgment of the district court is reversed in part and remanded in part; further proceedings are necessary to determine as a matter of fact whether Tagore holds a sincere religious belief in wearing a kirpan with a blade exceeding the federally prescribed maximum and, if so, whether the government has proven that application of Section 930(a) to Tagore furthers a compelling government interest with the least restrictive means. AFFIRMED IN PART; REVERSED IN PART; REMANDED IN PART.
You mean like I watched Tom Brady play Thursday night with the crown chanting "Where's Roger?" Have you repealed RFRA and due process? Maybe you can succeed where Roger failed. Davis has not imposed her religious beliefs on anyone, nor is she charged with any such thing. She has refused to issue any marriage licenses. No. The County government cannot do a damned thing. She will remain the County Clerk until she is removed. The only way to remove her is by impeachment via the state legislature. Contrary to your imagination, nobody can just rescind her authority as an elected official.
She has not been charged with any of those imaginary misdeeds. The County will definitely issue valid marriage licenses at some time or other, but RFRA may just cause a need to review for the availability of a reasonable acommodation, using a standard of strict scrutiny. And the Governor and the Legislature might have to get off their ass and do something.
Cast spells if you think that will help. Law is politics. Courts are not in fact bound by anything. They decide what they want to do, then they wade around in precedent to find themselves or some other circuit or the Supremes doing what they want to do in the present case. If it's a question of which banner something falls, they decide that it falls into the category that lets them do what they want to do. The only appeal from them is to the Supreme Court, which will not hear the case. Courts will play all sorts of procedural games to get to a result they want, but it never possible to force a circuit court, let alone the Supremes, into a decision they do not want. The American Judiciary supports gay marriage at the top, and down through the ranks. They made their decision, and they refused to hear Davis' appeal before. The Sixth Circuit is not going to let some official make her own law. It is not going to happen. They will not accept her lawyer's argument that the case falls into one cadre, but assert, by main force, that it falls into a second category, and as the deciders they can do that and nobody can reverse them except for the Supremes. Who won't. Legal maneuvering works if the courts want you to win. It's dead in the water when they don't want you to win. In this case, the court is going to enforce gay marriage. This is a Korematsu situation. The written law will mean what the judges say it means, and the outcome is already predetermined. If it helps you make sense of it, write long legal briefs and then look to see how the judges' clerks take apart the arguments. I'm just skipping to the end, because the outcome here is obvious. No, local officials do not have the authority to overrule the Supreme Court, even if the Supreme Court has commended them to break the terms of their religion.
Ceremonial weapons is not gay marriage. What you should be looking at is the following line of cases: Korematsu The various civil rights slap downs concerning segregation. Roe/Casey The Commerce Clause cases of the New Deal era, particularly the grim business of the farmer and his home grown crop. The issue is political, and the tide is very strongly running in a certain direction. No procedural game is going to derail this train. The Sixth Circuit knows that Kennedy, the Four Democrats, and probably Roberts will not hear an appeal of their decision if they decide in a way that compels respect for the constitutional right of gays to marry. And they know the Supremes will hear them and slap them down if they play games. Think of this as a Commerce Clause case, and it's 1938. Davis doesn't have a snowball's chance in Hell.
It is her sworn duty as the County Clerk to perform her duties. She has violated her oath of office and is an embarrassment to the State of Kentucky. She will be kicked out of office by due process.
Imaginary? She withheld issuing licenses on her own accord; she did so based on false beliefs. Her religious beliefs that she intentionally forced on a number of people are not law. She lied to everyone; she stole their time and money. She cheated her way into office by lying to the electorate. Hang the witch! Burn her at the stake! Let the worms devour her lifeless body in the light of day!
Time would be better spend putting a bullet in your head. Since you're an anti American and want to impose a religious test on office holders. She is a real American. You're a USSR type of freak.
Beyond that law. Is that why your company was investigated for defrauding the government?
How? By lying and covering up her intent to waste the same sex couples tyme and money? Why didn't she state what her intent was all about?
You just want special rights for faggots. Two men can't be married no matter how much you want it so.
I don't need or want to be associated with homosexuals. If queers want to screw around I don't care about it as long as it is away from me. We actually see eye to eye on the issue of homos. What we don't see eye to eye on, is a government officer not performing her duties. She has clearly lied to her constituents and lost the publick trust.
Doc 43, pp 43-45; PDF 106-08, Transcript of hearing, 3 Sep 2015 [43] MR. CHRISTMAN: … Her intent is to adhere and follow what her - - - - - [44] conscience is commanding and compelling that she must do. That here I stand, I can do no other. That she cannot do anything but what she is doing, faithfully applying her duties and obligations and understanding of the law, Kentucky Religious Freedom Restoration Act, a Kentucky marriage scheme that's been obliterated. And then Governor Beshear comes over the top and says, "Legislature's not in session. I'm not calling them. Here's what you must do, clerks. Without any exception, you must issue this license on a form I'm going to revise, but I'm not going to revise it in a way that accommodates any religious beliefs or concerns." And so again, that dovetails and goes back to why Ms. Davis -- part -- also part of her defense is that she has not been given due process fully for contempt because any liability that she is claiming, she's saying, "I have a claim against the governor. And the governor has issued this directive." The legislature's ready to act and solve the problems, but the governor says, "No." THE COURT: Are they ready to act? MR. CHRISTMAN: They are, Your Honor. THE COURT: Okay. Well, they haven't acted yet. - - - - - [45] MR. CHRISTMAN: Because they can't because it requires a special session by which Governor Beshear exercises the unilateral authority to call. THE COURT: Well, maybe he's waiting for the new governor. MR. CHRISTMAN: He may very well may be. And both gubernatorial candidates, both Mr. Bevin and Attorney General Conway have indicated an intent to do something to protect the religious liberties and objections. In fact, Attorney General Conway, in response to the Kentucky Clerks Association's proposal to remove the name, said he's fine with that. So there is -- and again, it goes to this idea this is premature to take an action to hold her in contempt when she's filed a motion to dismiss her complaint in its entirety. She's filed preliminary injunctive relief against the governor seeking relief. Her conscience does not allow it. She's entitled to due process to be heard on all of those claims before the Court could reach a conclusion that says, "You're in contempt. You're disobeying my order."
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#2. To: nolu chan (#1)
Furthermore, the federal court supervision over Davis' office imposed by the Release Order, in enforcement of the Expanded Injunction, violates established principles of federalism and comity, usurping the role of a publicly elected official
#3. To: nolu chan (#1)
#4. To: nolu chan (#0)
#5. To: nolu chan (#0)
(Edited)
#6. To: Vicomte13 (#5)
"Gay marriage is a constitutional right"
#7. To: misterwhite (#6)
#8. To: misterwhite (#6)
A first amendment right, not a "right" created out of thin air by the court.
#9. To: Vicomte13 (#7)
"if an agent of the state has such misgivings about that because of her religion that she cannot do it, then she has to find another job."
#10. To: Vicomte13 (#8)
"It has, rather, taken a right that is there in the Constitution and made it CLEAR."
found clarified a whole bunch of things, didn't they?
#11. To: Vicomte13 (#5)
Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all.
#12. To: Vicomte13 (#5)
Gay marriage is a constitutional right, and Davis' actions, including the appeal, were (and are) an invidious attempt to prevent people from exercising their constitutional rights.
Marriage is within the sphere of privacy that IS a right, and the Supreme Court has found even gay marriage to be a constitutional right.
It is stare decisis. --- Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all.
#13. To: buckeroo (#4)
Davis is just a rabble rouser looking for self glory about nothing. She is a officer of the county and must follow the laws not her recent "religious convictions."
#14. To: GrandIsland (#13)
(Edited)
#15. To: buckeroo (#4)
Davis is just a rabble rouser looking for self glory about nothing. She is a officer of the county and must follow the laws not her recent "religious convictions."
#16. To: redleghunter (#15)
#17. To: buckeroo (#16)
#18. To: redleghunter (#17)
#19. To: buckeroo (#18)
#20. To: redleghunter (#19)
#21. To: redleghunter (#19)
(Edited)
I did not know you lived in her county and required a marriage certificate.
#22. To: A K A Stone (#11)
Bullshit you liberal.
#23. To: Vicomte13 (#22)
the Constitution does not EXIST
#24. To: Vicomte13, Too Conservative, SOSO, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#5)
They're going to slap her down and uphold the injunctive relief granted by the judge.
I. Davis has a sufficient likelihood of success on the merits of her appeal to warrant an immediate stay of the Expanded Injunction.
- - - - -
Rule 62 – Stay of Proceedings to Enforce a Judgment
#25. To: nolu chan (#24)
(Edited)
#26. To: nolu chan (#24)
As county clerk I am responsible for providing many services to the people of Rowan county. These duties include general categories of clerical duties of the fiscal court: issuing and registering, recording and keeping various legal records, registering and purging voter rolls, and conducting election duties and tax duties.
Kim Davis
Rowan County Clerk
#27. To: buckeroo (#25)
(Edited)
seeking lawful considerations within the duties
#28. To: GrandIsland (#27)
#29. To: Vicomte13, Too Conservative, SOSO, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#22)
Davis has appealed. She is not going to WIN the appeal, and she is not going to successfully delay anything. This gay movement is not going to be stopped by casting constitutional spells - the Constitution does not EXIST, except as ideas in people's minds, and the majority of people ARE NOT strict constructionists. The majority of the judges MOST CERTAINLY are not.
The record in this case suggests that the burden [on Davis] is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.
UNOFFICIAL COPY AS OF 09/08/15 -- 13 REG. SESS. -- 13 RS HB 279/VO
DISCUSSION
There is no prescribed blade length for the Kirpan; its size varies based on personal choice. The majority of Kirpan blades range in size from 3 to 6 inches, but blades may be as small as 2 inches.... Kirpan are always sheathed.... [S]ome Sikhs ... believe a Kirpan must be worn at all times....
3. RFRA.
#30. To: buckeroo (#25)
Kim Davis has no "right" as an officer of the county government to impose her religious beliefs on anyone seeking lawful considerations within the duties she is bound to administer; the laws are not even in a contested situation so there is no ambiguity at all. She is going to lose her appeal with a BIG_SLAPDOWN; just watch and see.
The county government can and will rescind any and all her authority as an officer for the county. In effect, she will be impeached or kicked out of office.
#31. To: buckeroo (#26)
So, she is a liar, a cheat and a thief. Moreover, she owes an apoligy to all citizens for her misconduct towards the People.
#32. To: nolu chan (#24)
#33. To: nolu chan (#29)
#34. To: nolu chan (#30)
Davis has not imposed her religious beliefs on anyone, nor is she charged with any such thing. She has refused to issue any marriage licenses.
#35. To: nolu chan (#31)
She has not been charged with any of those imaginary misdeeds.
#36. To: buckeroo (#35)
She lied to everyone; she stole their time and money. She cheated her way into office by lying to the electorate. Hang the witch! Burn her at the stake! Let the worms devour her lifeless body in the light of day!
#37. To: buckeroo (#14)
are always making up their rules of enforcement, beyond the law
#38. To: A K A Stone (#36)
She is a real American.
#39. To: buckeroo (#38)
#40. To: A K A Stone (#39)
#41. To: redleghunter (#2)
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