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United States News Title: APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL 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 Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 29.
#5. To: nolu chan (#0)
(Edited)
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.
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.
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.
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.
#33. To: nolu chan (#29)
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.
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