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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: 13234
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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#31. To: buckeroo (#26)
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."
I am sure if you took the time to read my posts you would realize that I have not claimed any of the red herrings you are throwing out there. Rowan County will issue marriage licenses, I have no doubt. Kim Davis may receive an acommodation regarding this 1/10 of 1% of her job via RFRA. Despite the talking heads, Brady played a good game Thursday night with inflated balls. Roger was the one who stayed home.
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. [...] Think of this as a Commerce Clause case, and it's 1938. Davis doesn't have a snowball's chance in Hell. Davis has a snowball's chance in hell of getting an acommodation in Kentucky from a Kentucky court where gay marriage is about as popular as root canals. It is strictly a state matter and they will do what they will do, when they get around to doing it. If they want to invalidate all of the Bunning ordered and approved gay marriage licenses as failing to comply with Kentucky law, they will do that too. Or not. Kentucky state legislators not interested in reelection in Kentucky could remove Davis from office. She would likely reelected. She's likely to be there well after the Obama administration is long gone. Korematsu was a wartime decision about Japanese internment. Roe was about something emanating from a penumbra. Wickard was a significant grope for Federal power, grossly expanding the interstate commerce clause power. Davis is just a little pissing match. Korematsu, of course, is one of the most infamous wrongheaded miscarriages of justice in the history of U.S. Supreme Court holdings. The Court routinely rubber stamps executive crap in wartime. Presumably Davis compares to Korematsu because both are wrongheaded. But Davis does not reach that level of indefensible. Maybe you should have included Buck v. Bell in your list of horribles. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 22. Argued October 11, 12, 1944.-Decided December 18, 1944. 1. Civilian Exclusion Order No. 34 which, during a state of war with Japan and as a protection against espionage and sabotage, was promulgated by the Commanding General of the Western Defense Command under authority of Executive Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion after May 9, 1942 from a described West Coast military area of all persons of Japanese ancestry, held constitutional as of the time it was made and when the petitioner—an American citizen of Japanese descent whose home was in the described area—violated it. P. 219. WW3 has broken out in Rowan County, Kentucky and the Federal government must impose internment to restore order and make the land safe for all.
WW3 no (although the leftards would like you to believe it is) civil disobedience yes, I have a suspicion this is just the beginning. She isn't the only one telling the regime (so are some judges) "I have no intentions of supporting the USSC mandate on homo marriage"... Where it all ends will be interesting to say the least... You are assuming the public disagrees with her actions. I've seen nothing that substantiates your claim like protests by thousands wanting her fired, only about 10 people seem to be upset and they're only homos... I think the only way any protests happen is if the regime buses them in like they've done in other places. Davis is not a little pissing match. The issue at the heart of it is fundamental to the power of the Supreme Court and the government. On the one hand, there is a law, clearly articulated by the Supreme Court. And on the other hand there is an individual nakedly defying it because of her religion. That religious exception - the thought that an individual can disregard the law because her God tells her too, is not tolerable in a society of law. The principle at stake is the principle of uniformity of law versus religious exception. Reasonable accommodations are imposed on private businesses, but no reasonable accommodations, at all, are imposed upon, or philosophically admissible to, the law. The Supreme Court has spoken. Christianity shall not be permitted to make an exception to the law for itself. The principle is big: who shall be master in America, God or the government. And the government's answer will be the government. The parade of horribles they will invoke write themselves. It isn't about a clerk's job. It's about whether or not somebody can refuse to obey the law because of her religion. And the answer to that will be, and from the government's perspective MUST be: ABSOLUTELY NOT, under ANY circumstances. Only the GOVERNMENT can make those exceptions, and it does it according to IT'S rules. Individuals NEVER nullify the law for their religion and get away with it. Never. Conscientious objectors went to prison, and some died. When the status was finally recognized, it was done on the government's tightly controlled terms, and lots of people who are, in fact, conscientious objectors, have been forced into battle and thence to prison, because they did not punch the government's wickets. And those who really WERE CO's, were placed in medic units unarmed on the front lines, where they were MORE likely to get killed. Davis' principle - that her religion says no, so she's going to disregard a recent Supreme Court decision on a very hot topic - cannot stand. It opens the door to universal lawlessness based on personal conscience. The courts will seize this case and slap her down, hard, because they will feel they have to. It's not a little pissing contest at all. It's a question of the rule of law itself.
What's the point then? Procedure will win the day? Procedure will result in the courts getting to the position that they must: there is no individual exception from general applicability laws because of religious scruple. The local governments MAY make an accommodation, but they do not HAVE to. I read far enough in your brief to get the impression you actually think this woman can WIN in the end. Procedural too and fro is the game when you're in court, but here, the game is big picture questions, what is at stake. What is at stake is this question: Can a person's deeply held religious convictions be invoked by her to override her obligation to perform a specific duty of her office which has been modified by public policy to include something that she profoundly disagrees with? And the answer to that question is: NO. No, she must either violate her conscience and perform her job as the law mandates, or she must resign. There is no option under our law to hold the job but to refuse to obey the law for reasons of conscience. If we open the door to that, as a formal matter, we have given the American people the moral justification for a tax revolt. The government will never, ever tolerate that principle. She has taken a stance that pits her personal beliefs against the law, and she will be forced before the whole country to violate her personal beliefs, or to leave the job. If she will do neither, then she will be broken by the law and caged, because she must not win. If she wins on that principle, the government goes to pieces. It is not a little thing. Individuals do not ever have the right to nullify the law because of personal conviction. Ever. They can get away with it privately - it's called unpunished lawbreaking. But if they make a public stand on the principle the government MUST destroy them, swiftly and without a circus. Because if it does not, the rule of law evaporates. Quickly. If she doesn't have to issue marriage licenses, then I don't have to pay my taxes, because they are spent on abortion and that is murder, and I no longer want to be an accessory to murder.
Didn't you say earlier that the rule of law was political??? Ahhh, what's good for the goose isn't good for the gander imagine that!! CZ, CZ, CZ ... look around, will ya? To some of them, Kentucky clerk Kim Davis is a hero for her willingness to go to jail rather than issue marriage licenses. But others think Davis' position as a government official makes her exactly the wrong figure to rally around. Prominent Christian commentators have suggested Davis' case could drive away support for religious liberty issues by stirring up anger at a public servant who refuses to do her job. Davis was released from jail Tuesday after a deputy clerk began issuing marriage licenses. Davis says she will return to her office Monday but has not said what she will do. Kim Davis is a loser.
No names mentioned hmmmm... Kinda makes you wonder what side of the bible they're on the political or non-political side?? By Michele Richinick 9/13/15 at 4:00 PM Rowan County Clerk Kim Davis celebrates her release from the Carter County Detention Center in Grayson, Kentucky, on September 8. Chris Tilley/Reuters Kim Davis, the Kentucky clerk who refuses to issue same-sex marriage licenses and was jailed as a result, has not been greeted warmly by all of her neighbors as she returned to her hometown. Since the U.S. Supreme Court in June legalized gay marriage in all 50 states, Davis, 49, has denied issuing licenses to same-sex couples in Rowan County. In her position as county clerk, Davis is required to issue marriage licenses. She says gay marriage is against her religious beliefs. A billboard defending gay marriage has been placed in Rowan County. It reads: "Dear Kim Davis, the fact that you can't sell your daughter for three goats and a cow means we've already redefined marriage." The sign notes it was paid for by Planting Peace, a global nonprofit organization. The message appears to reference a scripture from the Bible that says women can be sold into marriage as slaves. The group wrote in a statement that Davis has become the face of the anti-gay movement. "The intent of the billboard is to expose this narrow interpretation by Davis and others that they use to defend their discrimination against the LGBTQ community," the group wrote in a statement. "It is important and relevant to call this out, because these messages and actions are not simply about a political or religious debate. There are LGBTQ youth across the world who are taking their lives at an alarming rate because of these messages from society that make them feel broken or less than." Earlier this month, a federal judge said Davis was in contempt of court for going against legal orders. As a result, she was jailed, but she was ordered released after five days. On Friday, Davis's lawyer filed an appeal. He argues the judge overstepped his bounds by including all couples in his ruling, instead of just the handful of individuals who previously filed lawsuits against his client. Davis, who said her time in jail was worth it, believes licenses should not be issued in her county until her case is resolved. Davis argues that an accommodation should be made for her religious beliefs. She won't step down from her position, nor violate her conscience, said her attorney, Matt Staver. While Davis was behind bars, her deputy clerks, excluding her son, issued licenses to gay couples. What Davis will do when she returns to work on Monday remains in question. In freeing her, the federal judge wrote that she must not interfere—directly or indirectly—with her deputies in issuing licenses to all legally eligible couples. Two Republican presidential candidates, former Arkansas Governor Mike Huckabee and Senator Ted Cruz of Texas, are among the individuals supporting Davis. "Praise God that Kim Davis is being released. It was an outrage that she was imprisoned for six days for living according to her Christian faith," Cruz said in a statement after her release. Clerks in other states, including Alabama, Mississippi and Texas, also have tried to avoid issuing gay marriage licenses. But Davis's case was the first major challenge to the Supreme Court's landmark decision.
A lie. There is no passage in a Bible that says women can be sold into marriage as slaves. Slaves can indeed be married, in Scripture, but once married they cease to be slaves and become wives, with all of the rights that inhere in wives under the law of God (to wit: food, housing, clothing, sex and children). Nor can a former slave woman who becomes a wife then be sold into slavery again. Nor could a Hebrew woman EVER be a slave. Only captured foreigners could be slaves, and once a foreign slave was married, the marriage coverted her into the people of Israel. That's what the Law in Scripture actually SAYS - which is pretty much the opposite of what the people who made the billboard are trying to get at.
Because the "Rule of Law" is political.
And precisely because the Rule of Law is political, THAT is why it is imperative not to lose control of the demographics of the population. If people are not having babies and you're filling up with immigrants, you have put your country on a death spiral from which there is no possible recovery. To avoid the inevitable defeat, you MUST get your people to have babies again. And the only way to do that is to reshape the economics of your country so that most people feel comfortable having babies. And THAT means, in a modern post-industrial society, a strong set of social supports for people with children: good public schools, child care for working mothers, generous time off for childrearing, universal government subsidized health insurance, public retirement benefits - all of those "socialist" things that conservatives have painted themselves into a corner to hate. They can hate all they like, but they have lost the demographics. They won the fight against social welfare, for awhile. It's threadbare in America. And therefore middle class people don't have enough babies, and therefore the country fills up with immigrants...who vote for social welfare...and THEREFORE the creepy left wins because they support social welfare in addition to crappy things like gay marriage. A complete unrealism, blustering foolishness, has dominated the American right since Reagan. And the result has been the hollowing out and replacement of the population. Gay marriage is the first really visible defeat on a religious policy, but it won't be the last. The whole conservative house is going to come crashing down in flames, because Americans do not have babies, BECAUSE conservatives won the point on social welfare economics for 40 years. So the national wealth went from 50% in the top 20% to 85% in the top 10%, everybody else was beggared and hollowed out, and stopped having babies...and the land filled up with Mexicans. And now everything is lost unless conservatives get realistic fast. The Rule of Law is political. And politics follows demographics. Demographics follows economics. And Reaganite economic conservatism has been rat poison for the white middle class birth rate.
You are so full of sh*t. Your BS conjecture doesn't being to explain why for exampl Japan's birthrate has declined. Some food for thought. As of 2014 46.9% of the U.S. workfove were women. The percentage of women in the U.S. workforce of blacks (11.4%), hispanics (16.1%) and Asians (5.7%) was 33.2%. On balance black, hispanic and Asian women are under represented in the the workforce compared to white women. "This is important because in Japan, Germany, and the UK, these changes in participation within the working-age bracket added at least one percentage point to the country's overall rate of participation from 2005-2014 — and this gain was attributable largely to the trend increase in female labor force participation, according to Gavin." So which women in th U.S. have dropped out of the labor pool? Why? The same soicla sevrices, aka freebies and handouts - your panacea for a thriving middle class, are presumably available to all ethnicities and/or races. SO you would expect that the drop outs would be distributed proportionately to the demographics of the general population. Is it? потому что Бог хочет это тот путь
Yes, it does actually explain why Japan's birth rate has declined. In Japan, people had to take out one hundred year mortgages just to have a house. That is incredible pressure. If Japan wants to have babies again, they have to get up close to God's standards - and God's standards were FREE land as a birthright. In Japan, life is hard and grim. There is a lot of wealth, and it is mainly held in vast conglomerates. The people live clustered in small, unaffordable houses. And so they have few children. In Europe, they have a better safety net than we do, but it still is not very good. The notable exceptions are the Scandinavian countries and France, where the social supports are strongest. They have a better white birth rate than we do. However, there is certainly a second piece to all of this besides economics, and that is Christian religion. Europe has lost its, and Japan never had it to begin with. In America, we still do have it. Americans would respond better than Scandinavians, because there are still Americans who want to have babies. Though this is dwindling with Christianity. Why has female participation in the American workforce dwindled? Because people at the margins lost their jobs never to return in the Recession, which is now officially over, but the jobs never came back. Instead, now the Fed is just going to pay banks interest not to lend the money it lent them at no interest. It's a kleptocracy. And the people driving THAT are pretty much all white, and old. Anyway, I can see that the receptivity to the truth here is somewhere around zero. Old white men shake their fist at me and tell me to get off their lawn. I suppose I will, because it's not worth fighting with them over it. And it won't be their lawn very much longer anyway. Rage at the dying of the light. The only way to rekindle the fire is to change. Change is upon us. I would see the white culture save itself. But I can see that isn't going to happen.
Kind of like the monorities in the U.S. that are having babies like crazy. Have you noted the fallacy in your thinking yet? потому что Бог хочет это тот путь
Wow, I never realized how much of a closed minded, bitter person you are. Truth? You wouldn't recognize the truth if it bit you in the ass. Old White male? What is that, your new derangement syndrome? I guess it is not in your make-up to understand that expressed exceptions to the substance of your postings are on the basis of recognizing the false premises of your analysis and thus erroneous conclusion - which always seem to be based on your political biases and social liberalism. You simply cannot admit that. So be it. For the last time on this I will point out the totally fallacy and incongruity of you analysis and conclusion. Do with it what you may. You say that whites are not reproducing because life is too hard for them, that the economic and financial decks are stacked against them. That they have to work too hard to keep their heads above water and thus are discouraged from having children. Then you happily point out that those that are of less economic and financial means are reproducing like crazy and claim that this is because their outlook for the future is so much more brighter than the more (temporarily) well off white population. For this to be true the minorities would have to be working less hard than their white peers. If that is true then the monorities are either (1) satisfied with less in both immediate economic comforts or in their outlook for improving their economic lot in life, or, (2) the minorities are living off government largess, or, (3) a combination of both. There is no no doubt that government largess plays large in their present existence and expectation for the future for blacks and hsipanics and just about every other minority group immigrating to the U.S. But who pays for that largess? Yep, you guessed.....the more well off white folks. Question: What would you do when you have the fruits of your hard work and your wealth taking away from you by the government and given to less hard working folks who expect you to continually finance their style off of your hard work and on your nickle? I quess you don't remember how you argued that the laborers in field are the hardest working people in America, and certainly more so than professional people such as doctors? So according to you the hardest working people (the minority laborers) are the ones that are having the most children. But that is exactly the opposite of what you argue for why whites are having less children and why Japanese are having less children, i.e. - they are not because they are working too hard. No you can again blame your contradiction and faulty thinking on me being an old white man - and you probably will. Good luck to you. The reason why the white culture is on the decline and why it will not be saved is exactly due to white liberalism and socilaist policies of any ever more oppressive Big Brother government. And the minorities are gladly cheering that on. Yes, you are a useful idiot that believes the socialist policies of the DRats will save the village. Good luck yo you. потому что Бог хочет это тот путь
Davis is a little pissing contest. The issue is Federal Government v. State of Kentucky and some other states. It is not an issue of law, but of power. This is not a matter of law when the new definition of marriage did not exist at the time any relevant provision of the Constitution was adopted. This is a matter of activist imposition of moral values, bypassing the political process. The Court is trying to get the STATES, plural, to comply with the SCOTUS opinion. Judge Bunning has to do a kabuki dance to maintain he is seeking compliance with his order but the Court is not authorizing the licenses. He said he does not know if the licenses to be issued by the deputies would be valid and he had not looked into that matter. And the issuing deputy has fully complied with his order by issuing a purported license which states that it is issued pursuant to a federal court order by the city of Morehead, Kentucky. http://www.wsj.com/articles/other-state-officials-say-no-to-same-sex-marriage-1442161531 As Kentucky county clerk Kim Davis gets ready to return to work, other officials are drawing scrutiny from gay-marriage supporters 32 magistrates in North Carolina have recused themselves from all marriage ceremonies, including all 4 from McDowell county. by Alastair Jamieson Casey Davis is not a relation of Kim Davis and is the Clerk of a different county. http://www.theguardian.com/us-news/2015/sep/03/kentucky-clerks-refusing-marriage-licenses [...] But she’s not the only defecting clerk in Kentucky. Two other clerks, Casey Davis of Casey County and Kay Schwartz of Whitley County, are also still refusing to perform same-sex marriages. http://www.theguardian.com/us-news/2015/sep/14/kentucky-clerk-kim-davis-to-allow-marriage-licenses Pursuant to federal court order, a piece of paper was issued upon the claimed authority of the city of Morehead. At page 153-154: If the Judge -- if this Court decides that it's going to find somebody else to issue a license, then -- THE COURT: Well, I'm not finding anyone. I'm just asking if they're willing to comply with the order. MR. CHRISTMAN: Then the authority for that marriage license is not Kim Davis. It's -- THE COURT: Well, it very well may not be her. MR. CHRISTMAN: -- it's this Court. And our position would be -- and -- THE COURT: Well, it's not this Court; it's the Rowan County Clerk's office. But go ahead. MR. CHRISTMAN: No, because Rowan County Clerk's office authority is Kim -- is Kim Davis, and Kim Davis is not giving that authority. So if marriage licenses are issued, those marriage licenses -- if Judge Blevins is not willing to exercise the opportunity he now has to issue the marriage licenses that he said he would issue, then this Court becomes the authorizing and issuing agent. And for any of those marriage licenses, the authorization statement should come from this Court, and the authorization agent should be United States District Court Judge David Bunning -- THE COURT: All right. Thank you. MR. CHRISTMAN: -- not Kim Davis. At 166-167 of the Court hearing transcript of 3 Sep 2015: Having heard from neither of the parties then. Okay. Here's what we're going to do. Now, there has been an issue raised about the validity of a marriage license issued that does not have the authorization of Ms. Davis under Rule -- I'm sorry -- KRS 402. Whether or not a license issued by the Rowan County Clerk's office is valid or not, I mean, that's -- that's kind of something that Mr. Sharp and your clients, if they believe it to be valid -- I'm not saying it is or it isn't. I haven't looked into that point. I'm trying to get compliance with my order. By Judge Bunning's own words, he ordering the deputy clerks to issue licenses that may, or may not, be valid and he has purportedly not looked into that point. Court appointed lawyers represented the deputy clerks at the hearing and quoted the law in arguing against the authority of the deputy clerks to issue said licenses. When the elected Clerk is absent, as in incarcerated, Kentucky law provides that the Judge Blevins, the county judge executive could issue licenses, but in the absence of the Clerk makes no provision for the deputy clerks to issue licenses.
The local governments MAY make an accommodation, but they do not HAVE to. Title 7 and State RFRA. If reasonably available, acommodation is not optional.
By Judge Bunning's own words, he ordering the deputy clerks to issue licenses that may, or may not, be valid and he has purportedly not looked into that point. Court appointed lawyers represented the deputy clerks at the hearing and quoted the law in arguing against the authority of the deputy clerks to issue said licenses. When the elected Clerk is absent, as in incarcerated, Kentucky law provides that the Judge Blevins, the county judge executive could issue licenses, but in the absence of the Clerk makes no provision for the deputy clerks to issue licenses. The issuing deputy has fully complied with Judge Bunning's order by issuing a purported license which states that it is issued pursuant to a federal court order by the city of Morehead, Kentucky. DAVIS Hearing Transcript, 3 Sep 2015 At 1-3: For the Plaintiffs: Hon. Daniel J. Canon For the Defendant, Kim Davis: Hon. Anthony Charles Donahue For the Defendant, Rowan County: For the Third-Party Defendants, Beshear and Onkst: Hon. Palmer G. Vance, II For Amicus Curiae, Robert Stivers: Other Parties For Nathaniel Davis: For Kristie Plank: For Brian Mason: For Kim Russell: For Melissa Thompson: For Roberta Earley: - - - - - - - - - - At 105-106: Given that Ms. Davis and her deputies did discuss, and she, in fact, did indicate that she had instructed her deputies not to issue the marriage licenses, the Court has chosen to ask several court-appointed counsel who are members of the Federal Public Defender list here in Ashland to advise the deputies. And I don't know who the deputies are. Up to this point, they've just been deputies of Kim Davis. So what I'm going to need to do is I have — and what we did, I just had the clerk call the six panel attorneys who would otherwise be appointed to represent individuals who may have -- may be subject to being in contempt themselves. - - - - - - - - - - At 110: THE COURT: What -- what's your objection to? MR. CHRISTMAN: That all of these deputies can only issue marriage licenses based upon the authority of Kim Davis, and Kim Davis has not given them that authority. So the one deputy clerk has -- who has said she cannot issue licenses, it's not in her department, that applies to all of the deputy clerks because none of the deputy clerks can issue a marriage license bearing Kim Davis's name and on her authorization because she has not given that authorization. THE COURT: Well, your objection's noted and overruled. I'm going to have them talk to these lawyers. - - - - - - - - - - At 113-117: MR. CHRISTMAN: Well, their authorization under Kentucky statute comes from -- THE COURT: What statute? MR. CHRISTMAN: -- the county clerk. The chapter for marriage laws is 402, and -- THE COURT: What chapter governs what the deputy clerks have to do? MR. CHRISTMAN: Well, the statute that was in place before Obergefell, 402.100, and -- THE COURT: What does that say the deputy clerks have to do? MR. CHRISTMAN: Well, that -- that statute is the one that says the authorization statement is from the county clerk, which hasn't been given, and also -- THE COURT: Well, I'm holding that she's in violation of the Court's order by not authorizing it. MR. CHRISTMAN: That -- that is what you held -- THE COURT: Correct. MR. CHRISTMAN: -- but their authority comes from her, not from you. THE COURT: Well, if they follow her authority and her authority's in contempt, why can't they be held in contempt as agents or employees of hers? MR. CHRISTMAN: Because the only authority they can give is from her. This Court doesn't have authority to rewrite Kentucky marriage statutes. THE COURT: Okay. So I can't -- so taking that to its logical conclusion, though, if someone -an employer tells an employee to do something, and they -- just general agency principals, if they're an agent, why, under Rule 65(d)(2)(B), shouldn't they be bound by the Court's preliminary injunction? MR. CHRISTMAN: Well, because here, the employer has told the employee, "You don't have my authority to issue it." You're -- THE COURT: Are they able to do it without that? Let's say one of them -- MR. CHRISTMAN: The analogy you're creating is you're inserting yourself as the employer and the authorizing agent and issuer of the marriage license. THE COURT: Okay. If I told them they can't do it, but a court says they have to, they still -- you're saying they can't do it because she said they couldn't? MR. CHRISTMAN: Because their authority -- because at that point then, you're raising implications and issues with respect to what the Kentucky marriage law and the marriage licensing scheme, which again, has been completely overwritten, but those aspects that are being -- are trying to be applied, that authority comes exclusively from the county clerk. That's the -- that's the core issue here. THE COURT: All right. Mr. Sharp, what's your response to this? They're arguing, in essence -and correct me if I'm wrong, because I want to make sure that we get it right -- because the clerk is not authorizing them to issue the licenses, and she testified this morning that she's very plainly, candidly, and I certainly appreciate that, that she told them that, "We are not issuing licenses pending appeal," I think is what she said. MR. SHARP: We think the Court's absolutely correct as far as there is a valid court order preliminarily enjoining Ms. Davis in her official capacity from enforcing the "no marriage license" policy. To the extent her employees continue to adhere to enforcement of what this Court has enjoined, then we think 65(d)(2)(B) would in fact be implicated, and, you know, their ability to be held in contempt, even as a non-party, would be at play. THE COURT: Okay. Let me ask you, Ms. Parsons, Mr. Watkins. What the Court does -- I recognize that what the Court does here potentially impacts the services, et cetera, provided by the clerk's office of Rowan County. Do you all take a position on the applicability of Rule 65(d)(2)(B) as it relates to the deputies? MR. WATKINS: Judge, I -- I think they can issue them in her absence at that point because they're -- they're acting in concert as -- as the clerk. If -- if what they say is true, she's allowed to pick the religious beliefs of her deputy clerks, and everybody knows that's -- that's illegal. THE COURT: Ms. Parsons? So -- so it's the position of the county attorney, sir, that they can issue the licenses in her absence? MR. WATKINS: Absolutely. THE COURT: All right. Ms. Parsons? MS. PARSONS: I have the same position. THE COURT: All right. All right. - - - - - - - - - At 121-122: MR. HUGHES: Judge, if I may -- THE COURT: Yes. MR. HUGHES: -- save that trouble. Mr. Mason was the one that had discussed that with Ms. Davis, and he'd already indicated to her that he would issue those licenses, if he were allowed to do so. He has indicated to me that he will comply with this Court's order to do that. But there are some practical problems. One, he doesn't even have a key to get in the offices. That can probably be overcome. The second is the concern that was raised by honorable counsel here involving the state statutes and what authority they have if in fact Ms. Davis is still saying that she does not give them the authority. So he -- that may be an issue that has to be addressed somewhere outside this Court. Perhaps this Court can answer his question, but he wants you to know that he intends to comply with this Court's ruling and issue the licenses. - - - - - - - - - - At 125-127: MR. JOY: Your Honor, may I? THE COURT: Yes, sir. Mr. Joy? MR. JOY: Your Honor, I think you addressed an issue earlier, but I think you kind of glanced over that. I think I feel the need to -- to bring that back up. You addressed agency principal earlier. THE COURT: Right. MR. JOY: Under an agency principal, an agent is able to -- well, consent can be withdrawn at a certain time. And I think we have an issue here, I think, if you -- and you also spoke of a ping-pong match next week coming right back to you. I think if you -- you are entering a valid order -- you are -- THE COURT: I -- I believe it to be a valid order. MR. JOY: Right. THE COURT: The Circuit may disagree. But the language the Circuit used in their stay order kind of tells me that they very well may not disagree. MR. JOY: Correct. And in looking at all of that, I still don't think the statute under 402.100 necessarily gives, under agency theory, the permission for either Mr. Mason, or my client, Ms. Russell, to issue a valid marriage license. They could issue you a license. Now, is that valid? I think that's the million dollar question that needs to be answered at some point. I don't think that question's being asked of us here today, but I just wanted to bring that to the Court's attention. THE COURT: So you believe that if he issued the license without her authority, it would be an invalid license? MR. JOY: Absolutely. THE COURT: All right. Mr. Sharp -- usually the -- the only time that would come up perhaps would be if there was a divorce, we were never married, or some contention later. Mr. Sharp, what's your position on the validity of the license, if it's issued without her authority? Do you take a position on that? MR. SHARP: Well, I mean, we think that she cannot condition her authority on an unlawful act, and -- which is what she has -- what counsel seems to be alluding to the fact that if she is withholding or may withhold her permission to issue licenses based on illegal conduct as far as -- THE COURT: Well, I didn't find it to be illegal. I found that it was in violation of the Court's order. MR. SHARP: Contemptuous conduct, correct. We don't think her authority extends that far, insofar as the office, apart from Kim Davis, exists to perform certain public functions. Kim Davis does not have to personally touch every marriage license. She employs people for the purpose of carrying out the duties of that office. To the extent Kim Davis has an erroneous instruction of her ability to block them from doing that, that, nonetheless, does not mean that they cannot perform those functions. THE COURT: Well, the form says the clerk or deputy clerk. It does bear her name. And we're not going to plow that ground again. I previously found that really the clerk is performing a ministerial task verifying that the person is otherwise legally eligible to marry, and I'm not going to rehash that. The prior Court's order speaks for itself. - - - - - - - - - - At 138-140: MR. FOX: So our discussion primarily for the half-hour that we met was about those convictions and the balancing, and ultimately a choice of lesser of evils. And I think but for some of the these other obligations and responsibilities that she has, her response to you today would be different. But these are real world issues. And there are two things that she wanted me to talk about. One, she wanted it to be clear that she had personal opinions and beliefs that are contrary to what is expected of her in her job. But she respects the Court, and she recognizes that she's under an obligation under Rule 65 that you discussed, that the orders that apply to Ms. Davis also would apply to her as an employee of Ms. Davis, and I believe she will tell you that she will comply with your order. She was quite articulate in explaining to me and us discussing this issue of whether she has the authority to do that. And while I was back there -- and fortunately, recent court orders allow us to bring these devices into the courthouse and 402.080, KRS 402.080 says that, "No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county." She believes, and I don't know that she's wrong, that the authority is with the clerk. And if the clerk hasn't given her authority, then she probably doesn't have authority. However, our discussion wasn't about whether she has authority to issue a license. Our discussion was about whether she was obligated to follow your order to do so. And she recognizes that she does have that -- or that she is under your authority to issue a license. THE COURT: She appreciates the authority of the Court? MR. FOX: That's right. That's right. And whether -- as Mr. Joy and I've discussed -- whether that license, when issued by her or Mr. Mason, or anyone else, which is done without being given authority by Ms. Davis, whether that's valid or not, that's, I guess, going to be up to the plaintiffs to find out. - - - - - - - - - At 142-143: THE COURT: Okay. Thank you. So setting aside for the moment the discussion of whether or not, without the authority of the clerk, you have the ability to issue those marriage licenses, I mean, would you or are you willing to comply with the Court's order requiring you to issue marriage licenses to the plaintiffs in this case or any other individuals who are legally eligible to marry in Kentucky? MS. PLANK: Yes. - - - - - - - - - - At 144-152: MR. HUGHES: Well, I say that, Judge, and just coincidentally, the clerk in Boyd County is retiring. In fact, she retired Monday. She resigned her office. The office is open and it can't be filled until a person that's going to be appointed has to take the test during the vacancy. You can't take it just in advance, believe it or not. You have to take it during -- so the office then does not have a clerk. So what they've done is they simply bring a clerk from another county over. I mean, that's the position that they've always done when clerks resign or they're incapacitated. I don't know that applies to this case, but — THE COURT: Well, and I don't know if they brought another clerk over from another county to do that here, I mean, whose authority would that be issued under? MR. HUGHES: I mean, I don't know the answer. I just know that -- I just to want to make the point that Mr. Mason is in -- is in the same -- the same glass globe that everybody is that's going to be looking at it. He wants to comply with your orders. Now, how they work this out in Rowan County or Franklin County, or wherever it has to go, will be their -- their issue. But -- but his consensus is that he's going to comply with your orders, unless someone stops him otherwise from doing it. The second thing is, is it's long standing law in divorce cases, that that's what they're worried about, is that even if there's a mistake made somewhere along the line, if the parties thought they were getting married, they're considered married. THE COURT: Like common law -- common law marriage. MR. HUGHES: And I don't know about the other issues that may arise, but -- but at least for that purpose they are. THE COURT: Well, most people when they get married don't expect to get divorced. MR. CHRISTMAN: Your Honor, I'd -- I'd just like to make two remarks in response to the comments. THE COURT: Sure, just two. Go ahead. MR. CHRISTMAN: Thank you, Your Honor. The first would be this gentleman has referred to another county — THE COURT: Mr. Hughes? MR. CHRISTMAN: Mr. Hughes. I'm sorry. I didn't remember your name -- THE COURT: Thank you, sir. I just wanted to make sure you were ref -- MR. CHRISTMAN: -- immediately. But the -- he just suggested that other county clerks can come in and issue licenses. THE COURT: I don't know if that's true or not. That would be a least alternative. MR. HUGHES: I'm just saying that they do it real commonly when they transfer authority. THE COURT: When authority's transferred? MR. HUGHES: Yes. And I don't know -- you know, there's not that many clerks that probably this issue comes up on a regular basis or to challenge. I just know that it has been policy in the past, and I've been at this 40 years now, that whenever clerks leave their offices, for whatever, there is a gap there and that is -- that's commonly how it's taken care of so that the public offices continue. THE COURT: All right. MR. CHRISTMAN: And I would just raise that that's exactly one of the least restrictive alternatives that we've proposed. That if somebody wanted to get a license in Rowan County issued by the county clerk, they could get it from another county authorizing that. THE COURT: Recognizing -- sure. MR. CHRISTMAN: And there's been testimony being raised previously that 402.240 is a statute discussing absence of a county clerk. And there's been discussions now, you know, with Ms. Davis incapacitated and incarcerated, Kentucky marriage law provides, as we argued before, that her conscience provides the absence. And certainly in the Kentucky THE COURT: Well, I found previously that the -- hold on -- I found previously that the conscience doesn't provide the absence for purposes of absence in the prior ruling. MR. CHRISTMAN: But Kentucky marriage law provides the outlet for -- the answer for when the county clerk is absent and unable to authorize a license isn't to change Kentucky marriage law and make the deputy county clerk the authorizing agent. What that does is turn Judge Blevins into the authority under that section when the clerk is absent to -- THE COURT: But it would still be issued under her authorization. MR. CHRISTMAN: No. THE COURT: The form would be under her name, though. MR. CHRISTMAN: No. The statute provides that when the clerk is absent, that the marriage licenses be issued by the county judge/executive on a memorandum. As Judge Blevins testified, he'd -- he had never done it before, but under the facts and circumstances here, Kim Davis is currently now rendered absent. The authority -- there is no authority for the deputy clerks. Kentucky marriage law then says that authority vests into the county judge/executive to issue a marriage memorandum. THE COURT: All right. Mr. Watkins? MR. WATKINS: Judge, I think he just said an inaccurate statement. It -- it allows him. It says "may issue a license." There's no requirement there for a judge/executive to ever issue a license. THE COURT: All right. Well, ultimately here, if I were to follow your argument, Mr. Christman, to its logical conclusion by -- it would enable her to be found in contempt, but then get what she wants, doesn't it strike you as a little disingenuous? MR. CHRISTMAN: In terms of get what she wants? THE COURT: Well, she wants the -- you argued initially that she wants the judge/executive to do it as a least restrictive alternative. He can issue it. I previously found that her religious objection doesn't allow her to be absent. You're saying now she's been locked up for violating my order. "She's now absent, actually absent, Judge. They can go to the county judge." That's what you argued before. It seems like I would be rewarding her for her contemptuous behavior by allowing the judge to do it. Clear those up for me. MR. CHRISTMAN: No. The Court -- the Court would simply be -- the Court made its determination on what the word "absent" meant in the statute under the facts and circumstances that were presented before the Court then. THE COURT: Correct. MR. CHRISTMAN: The facts and circumstances are different now, so the Court makes an interpretation of what the word "absent" means. Is Kim Davis currently absent from issuing marriage licenses? THE COURT: Okay. Okay. Then when is she then purged of her contempt? MR. CHRISTMAN: Well, she's purged of her contempt when, at this point, we're left to file certain writs in order to have her released from the custody that she is in, and the merits of her claims are challenged and taken up on appeal, and she prevails on the merits of her appeal, which have not been addressed. THE COURT: No, the merits have not. The likelihood of success has been addressed. MR. CHRISTMAN: And that was likelihood of success in her capacity -- in her official capacity to which the appeal was taken, she has raised those individual claims against the governor and for any liability that she may have -- THE COURT: Those are not on appeal right now. MR. CHRISTMAN: -- and they have not been taken up, which is again, further, why our due process concerns as to the judgments and determinations that are being taken here. She's now been sent into confinement -- as Your Honor said, the purpose of contempt is to coerce the contemnor into compliance. THE COURT: Correct. MR. CHRISTMAN: Now, in addition and well beyond that, the Court is now deciding, after putting Kim Davis in imprisonment for civil contempt of an order, the Court is now stepping in, short of the merits being fully decided, and saying, "I'm going to now order others without the authority, without the merits of her appeal being taken up to do an act that she cannot do." It is literally the analogous situation. And physically -- we've now moved to the point where if she's in contempt, as you've found, and now a marriage license that she says she gives no authority to and is challenging on the merits of appeal, you force that license to go out on her authority and on her name, you have forced the nurse to THE COURT: Forced the who? MR. CHRISTMAN: -- perform the abortion. You have forced -- THE COURT: Why do we always use that analogy? There's so many others to use. MR. CHRISTMAN: Because those are the analogies in which religious conscience claims have been raised in cases, Your Honor. - - - - - - - - - - At page 152-154: MR. CHRISTMAN: -- for a conscience claim that you didn't accept, that conscience claim, the merits of which are being challenged on appeal and have not been finally decided by a court of final appeal. And so you told her that she has an opportunity to purge her contempt if she -- if she authorizes and issues the license. So her ability to purge the contempt, her -- again, the purpose of contempt is to coerce the contemnor into compliance. You've told her what that is. If it -- if the hearing is now going to turn into "let's find somebody to issue the license with Kim Davis's name on it and her authority," then what the Court is now doing is turning Kim Davis's sanction into a criminal punishment for what -- THE COURT: No. I'm not doing that. MR. CHRISTMAN: -- she's done. You're taking the extra step of forcing the conscientious objector to actually have the act that they object to performed before the merits of that have been decided. If the Judge -- if this Court decides that it's going to find somebody else to issue a license, then -- THE COURT: Well, I'm not finding anyone. I'm just asking if they're willing to comply with the order. MR. CHRISTMAN: Then the authority for that marriage license is not Kim Davis. It's -- THE COURT: Well, it very well may not be her. MR. CHRISTMAN: -- it's this Court. And our position would be -- and -- THE COURT: Well, it's not this Court; it's the Rowan County Clerk's office. But go ahead. MR. CHRISTMAN: No, because Rowan County Clerk's office authority is Kim -- is Kim Davis, and Kim Davis is not giving that authority. So if marriage licenses are issued, those marriage licenses -- if Judge Blevins is not willing to exercise the opportunity he now has to issue the marriage licenses that he said he would issue, then this Court becomes the authorizing and issuing agent. And for any of those marriage licenses, the authorization statement should come from this Court, and the authorization agent should be United States District Court Judge David Bunning -- THE COURT: All right. Thank you. MR. CHRISTMAN: -- not Kim Davis. - - - - - - - - - - At 157-158: THE COURT: Okay. Now, Ms. Earley, I know your individual situation is a little bit different in that earlier you told me, or someone represented that you are -- you're the chief deputy, though? MS. EARLEY: I am the chief deputy, yes. THE COURT: Okay. But you're not really a -is it true that you're not like one of the front-line folks? MS. EARLEY: I don't work on the front line. I work back in the legal department. - - - - - - - - - - At 161-163: MS. EARLEY: Well, it seems like every step we take, we've got questions, and -- like who's in authority, you know, whose name goes on that. And that's -- things like that, I think, need to be worked out, and definitely, I'm not an attorney. THE COURT: Well, we have lots of attorneys here have been making their arguments here this afternoon and this morning. MS. EARLEY: And I guess one of the questions was, is Kim still the one that's going to be telling us what to do? Do we go by her authority or ... THE COURT: Well, the authority -- the reason for this hearing is because Ms. Davis was not complying with the order of the Court. There's a lot of discussion -MS. EARLEY: Uh-huh. THE COURT: -- but at its very core, the hearing is about compliance with the Court's orders. MS. EARLEY: I understand that. THE COURT: And whether or not a marriage license issued tomorrow by any one of the agents of Ms. Davis is a valid license under the Kentucky statute. These plaintiffs are going to have to decide whether or not they want to perhaps have a license issued, which may not be valid under Kentucky law, but they're willing to take that chance. Or perhaps they're not going to take that chance and hope that maybe in some future date the statute is amended or there's some activity by the elected officials to change it. That's not -- I'm trying to gain compliance with the order, and that's -- so you do -- have raised some interesting questions, as the other attorneys have as well. But what I'm getting at is, if I have individuals who've indicated they're willing to issue the licenses, and I order that to occur, it will be on the form that was used. That's -- if there's a move afoot to amend that, great. I think that would enable all parties to come away with something. Many times in litigation certain parties win and certain parties lose. Oftentimes, though, you have cases where everybody gets something. I've struggled in this case to find middle ground on anything because both sides have been so insistent on digging their heels in at every turn, which is certainly the litigant's right to do. And it's my job to try to keep the decorum even, try to keep everybody on the same page. So I guess getting back to my initial question, do you wish additional time to answer that question, or are you willing to issue those licenses? MS. EARLEY: Well, I'm not set up to issue them, but I won't go against your order. - - - - - - - - - - At 163-164: THE COURT: All right. Ms. Russell, you've had a chance to talk to your lawyer now about the consequences of not complying with the order, correct? MS. RUSSELL: Yes, sir. THE COURT: All right. Mr. Joy. MR. JOY: Your Honor, in speaking with her -- THE COURT: If you'd speak close to the microphone. The air's on. Thank you. MR. JOY: Your Honor, in speaking with her, I think the fundamental issue that she had was that she was rehired by Ms. Davis in March of this year. She's only worked there for a few months at this point. On or about June 30th, after after the decision by the Supreme Court came out, Ms. Davis revoked her authority to issue any marriage licenses to the entire office. I think that's what led to this hearing. And as I previously stated, that's the same issue she has right now, is she does not believe she has authority to go forward and issue, from Ms. Davis, that is, no authority to issue a marriage license. But I believe her position will be that in regards to the Court's order, she will issue a marriage license, she will comply with that going forward. - - - - - - - - - - At 166-167: THE COURT: All right. Thank you, unless one of the parties think it's necessary. Having heard from neither of the parties then. Okay. Here's what we're going to do. Now, there has been an issue raised about the validity of a marriage license issued that does not have the authorization of Ms. Davis under Rule -- I'm sorry -- KRS 402. Whether or not a license issued by the Rowan County Clerk's office is valid or not, I mean, that's -- that's kind of something that Mr. Sharp and your clients, if they believe it to be valid -- I'm not saying it is or it isn't. I haven't looked into that point. I'm trying to get compliance with my order. The impact of compliance with the order is left for you. I mean, if you think that's a legitimate issue, then you can advise your clients accordingly, but that's not really something that I think precludes the Court from gaining compliance with the Court's order. - - - - - - - - - - At 175: THE COURT: All right. We had given Mr. Christman and Mr. Gannam additional time that they've asked, approximately ten minutes. You all wanted to be heard without Ms. Davis being brought into the courtroom; is that right? MR. GANNAM: Yes, Your Honor. You offered to bring Ms. Davis back in at -- based on our request to consider purgation of the contempt based on the representations of the deputy clerks. THE COURT: Correct. MR. GANNAM: At this point, we're prepared to, rather than bring Ms. Davis in, simply communicate to the Court that she does not grant her authority for any licenses to be issued under her authority or by her name. And she -- she also does not make any representations as to whether she would allow any employee of her office to issue those licenses, even without her authorization. - - - - - - - - - -
At battle of jurisdiction? I am betting the Fed will win and that when all is said and done the licenses issued by the Deputies are legal. потому что Бог хочет это тот путь
That's the way to bet.
There is no battle of jurisdiction. The State has jurisdiction over who can issue marriage licenses and what they must contain. In interpreting the State statute, the highest court of the State has the final say. If state law says it must bear the name of the County Clerk, there is no Federal authority to overrule that. If state law says that licenses in Rowan County must be issued under the authority of the Rowan County Clerk, it is not up to the Federal government to authorize the city of Morehead to authorize licenses. Pursuant to the conscience of Kim Davis, the license as it is being issued, does not contain the name of Kim Davis or purport that it is being issued in the name of the Rowan County Clerk. Mr. VANCE for Governor Beshear. Mr. CHRISTMAN for Kim Davis. Davis Hearing of 3 Sep 2015 at 85-86: The governor can change that form, make it a state form with no personal authority, no Kim Davis name on it, available in a Rowan County Clerk's office, and this case would be over, Your Honor. THE COURT: Okay. Thank you. Is Governor Beshear -- can he do this by executive order? MR. VANCE: Your Honor, there is no executive order. In fact, Governor Beshear isn't going to do anything. THE COURT: But is he -- does he have the authority to do that by executive order versus by calling a special session? And I have some familiarity with the requirements of a special session, but I'm just curious. By executive order, I know the president can issue executive orders for a variety of reasons. I'm assuming that the executive of the state would be able to do that on certain things as well. Is this something where he can just change the form by executive order? MR. VANCE: No, Your Honor, because the requirements or the composition of marriage license is dictated by statute, and the governor cannot change the statute. The Governor's attorney states that the Governor lacks the authority to make any change to the form. At 96: I recognize, and I mentioned this when we first came out earlier this morning, that the legislative and executive branches do have the ability to make changes. And those changes may be beneficial to everyone. Hopefully, changes are made. But it's not this Court's job to make those changes. I don't write law. Judge Bunning says the legislative and executive branches do have the ability to make changes. Page 1 of Judge Bunning ORDER of 8 Sep 2015 The latest license states it is issued pursuant to a federal court order by the city of Morehead, Kentucky. I am wondering what sort of fun will ensue when the couple gets married and the marriage documentation is filed. Guess who the documents get submitted to? It is beyond the authority of the governor to make any change because it is controlled and specified by state statute, but a deputy clerk can wing it and the Court explains that the plaintiffs have not alleged that the alterations affect the validity of the licenses. This appears to be a new legal standard. The denial by the attorney for the governor of authority is overruled by plaintiffs who do not complain about what the court has wrought. When Kentucky feels like getting around to it, it will modify the statute solving the problem, Kim Davis will be acommodated, and licenses will be issued pursuant to law once again. Next year.
Seems to me, all the legal wrangling is due to they fact that the court is trying to get someone who has unique elected and discretionary authority to act to do something they do not want to do. The court is waiting to discover that it really is powerless in this matter, and jurisdiction lies with the voters and the KY legislature. Bottom line is that elected officials cannot be compelled to fulfill their duties by the courts.
Which brings us back to the Feds saying homo marriage is now the law of the land even though many states still have laws against that... They don't say that. Similar to "common law" marriages (no religious ceremony required) there shall be no discrimination about gender requirements to receive licensing from any government authenticating bureaucracy. What is important to understand is the government has clearly defined a separation of church and state about marriage. All the government wants to understand is that a "couple" is registered for official state purposes, independent of religious considerations.
Well, that's really it. That's the bottom line. The Supreme Court has made a ruling about the Constitution, and now the federal courts will enforce that ruling. There are local laws and statutes that say what and wherefore, but the Constitution is the Supreme Law of the Land, and the Supreme Court has said that the Constitution mandates non-discrimination in marriage. And therefore all of the state laws, rules, regulations, structures, and constitutions, that stand against that are broken off at the stump, immediately, because the federal Constitution is a superior law to all of those laws. There is no time for some sort of process for gradually undoing the state constitutions, laws, statutes, ordinances and regulations: they are scythed off and disregarded because the superior law rules. Those old laws stay on the books until they are repealed - for example, many states had miscengenation statutes on the books long after the federal courts struck them down as unconstitutional. The statutes still exist in writing, but all authority in them winks out of existence instantly because the supreme law of the land supplants them. There's no competition between laws, just as there's no competition between the captain of a ship and the admiral, when he is on board. The Admiral is senior, and can take command and issue orders if he wants to. Period. Usually he doesn't, but when he does, the seaman recruit who disobeys the Admiral because he will only take orders from the Captain, or disobeys both because he will only take orders from his Chief Petty Officer, ends up in the brig. Superior authority replaces inferior authority, and the Supreme Court writing on a constitutional matter has authority that is a razor that scythes competing authority to the ground. That is why the procedural games being played that say that nobody but the people and legislature of the State of Kentucky have the authority to issue marriage licenses are a dead end. Normally that would be true. However, the Supreme Court has ruled that non-discrimination in marriage is the constitutional law of the land. Therefore, it is. It doesn't matter that many think that decision has no founding in "original intent". The "original intent" of the Constitution is not, in fact, the Supreme Law of the Land. It's a minority ideological position. What the Supreme Court says the Constitution is, is what the Constitution is, in our system. It doesn't matter that that's open to all sorts of abuse, and has been abused (even in the present case), and will be abused again. I never said that our constitutional system is a GOOD one, or a particularly just or uncorrupt one. It is bad, and corrupt. But it IS, and the Supreme Court DOES have that power, and is so recognized. And it has decided the case: non-discrimination in marriage. So, if a state, or county, decides to stop issuing marriage licenses, what are they doing? They are invidiously resisting the Constitution. The existence of marriage was never a question. It only has BECOME a question because petty public officials do not want to issue marriage licenses to gays, and so have stopped issuing ALL licenses. It is a transparent effort to thwart the Constitution (as decided by the Supreme Court), and it will not stand. That is why courts have equitable powers and not just legal powers. With law, you have to slowly grind through the arguments and statutes, have hearings, slowly work your way forward. But with equity, the judge is endowed with tremendous power to simply cut through the legal tangle and "make right" (as right is defined by law). Kentucky constitutional law and state statute and local ordinance say that the clerk has to sign the licenses or they are not valid. But the Constitution says that people have the right to marry, and that there cannot be discrimination. Suddenly refusing to issue marriage certificates in order to prevent gay marriages is invidious, and legal under Kentucky law. But the issue has been decided by the Supreme Court on the basis of the US Constitution. And THEREFORE the Kentucky Consitution, and statutes, and local ordinances, and the will of the people of Kentucky, or of a county in Kentucky, are irrelevant. They are not on the scale. The Federal Constitution is the Supreme Law of the Land. It's authority over every aspect of Kentucky law, including the Kentucky Constitution, is absolute when it comes to a matter of Constitutional law on which the Supreme Court has pronounced. Davis and her attorneys are resorting to law in a rearguard action to try to thwart the Federal judge's application of equity. But behind the Federal Judge is Law, Federal Law, the US Constitution, on a matter of Civil Rights. The Kentucky Constitution, and statutes, and laws and process, are cut off stumps: the US Constitution occupies the field in the matter. Clerks in Kentucky cannot refuse to issue marriage certificates to blacks and whites who want to marry. They cannot refuse to issue marriage certificates to gays or straights who want to marry. And they cannot simply refuse to issue marriage certificates at all to try to prevent mixed race people or gays from marrying. The Supreme Court says that the US Constitution says that people have the right to marry, gays included. That's the Supreme Law of the Land, and everything "Kentucky", including the stubbornness of some local clerk, moves aside for it. If it won't move aside, then Federal power is applied until it does move aside, or is broken all to pieces and now people are in place to obey the Supreme Law of the Land. That's our system. If the Kentucky Constitution were the controlling law, Davis would have a point. But the US Constitution is the controlling law, and to the extent that Kentucky constitutional or other law stands in the way, it will be moved aside by Federal equity. It's that straightforward. It's the same reason why abortion is the law of the land.
That isn't what happened. Kim Davis took it upon her own bias and prejudice to make that judgement call.
The above screed is a 'minority ideological position', made by a self proclaimed lawyer of doubtful veracity. Yes, the Supreme Court has OPINED that non-discrimination in marriage is the constitutional law of the land. Therefore, it will be disputed. It matters that many think that decision has no founding in "original intent". -- As the "original intent" of the Constitution has in fact, bearing on the Supreme Law of the Land. There is a minority ideological position that claims, -- "What the Supreme Court says the Constitution is, is what the Constitution is, in our system." -- This is NOT how our system works. It is a system of checks and balances, and this opinion will be opposed, - until hopefully, govt at all levels will get OUT of the business and taxation of marriage, and return it to the religious sphere.
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Top • Page Up • Full Thread • Page Down • Bottom/LatestSo, 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)
- - - - -
#42. To: Vicomte13 (#32)
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.
#43. To: Vicomte13 (#33)
Korematsu
KOREMATSU v. UNITED STATES.
#44. To: nolu chan, Vicomte13 (#43)
WW3 has broken out in Rowan County, Kentucky and the Federal government must impose internment to restore order and make the land safe for all.
#45. To: buckeroo, All (#40)
and lost the publick trust.
#46. To: nolu chan (#43)
#47. To: nolu chan (#42)
am sure if you took the time to read my posts you would realize that I
#48. To: Vicomte13 (#46)
It's not a little pissing contest at all. It's a question of the rule of law itself.
#49. To: Vicomte13 (#46)
Davis' principle - that her religion says no, so she's going to disregard a recent Supreme Court decision on a very hot topic - cannot stand. It opens the door to universal lawlessness based on personal conscience.
#50. To: CZ82 (#45)
You are assuming the public disagrees with her actions. I've seen nothing that substantiates your claim like protests by thousands wanting her fired, only about 10 people seem to be upset and they're only homos...
NASHVILLE, Tenn. (AP) — Having failed to ban same-sex marriage, many religious conservatives are now working to carve out protections for business owners and others who object to it on religious grounds.
#51. To: buckeroo, redleghunter, Liberator (#50)
Prominent Christian commentators have suggested Davis' case could drive away support for religious liberty issues by stirring up anger at a public servant who refuses to do her job.
#52. To: CZ82 (#51)
(Edited)
Kentucky Clerk Kim Davis Mocked on Billboard in Hometown
She is going to have a tough tyme staying in office.
#53. To: buckeroo (#52)
The message appears to reference a scripture from the Bible that says women can be sold into marriage as slaves.
#54. To: CZ82 (#49)
Ahhh, what's good for the goose isn't good for the gander imagine that!!
#55. To: All (#54)
#56. To: Vicomte13, All (#55)
The Rule of Law is political. And politics follows demographics. Demographics follows economics. And Reaganite economic conservatism has been rat poison for the white middle class birth rate.
#57. To: SOSO (#56)
#58. To: Vicomte13 (#57)
In Japan, life is hard and grim. There is a lot of wealth, and it is mainly held in vast conglomerates. The people live clustered in small, unaffordable houses. And so they have few children.
#59. To: Vicomte13 (#57)
Anyway, I can see that the receptivity to the truth here is somewhere around zero. Old white men shake their fist at me and tell me to get off their lawn.
#60. To: Vicomte13 (#46)
It's not a little pissing contest at all. It's a question of the rule of law itself.
Other State Officials Say No to Same-Sex Marriage
Kentucky Clerk Casey Davis Ordered to Comply With Law on Gay Marriage
Jul 10 2015, 5:58 am ET Kentucky clerk is one of three in state refusing to issue marriage licenses
The licence states that it was issued “pursuant to a federal court order,” she added, in line with a policy Davis enacted Monday morning. Additionally, rather than listing Davis’s name, it says “city of Morehead”, the Rowan County seat.
MR. CHRISTMAN: -- she's done. You're taking the extra step of forcing the conscientious objector to actually have the act that they object to performed before the merits of that have been decided.
THE COURT: All right. Thank you, unless one of the parties think it's necessary.
#61. To: Vicomte13 (#47)
Procedure will result in the courts getting to the position that they must: there is no individual exception from general applicability laws because of religious scruple.
#62. To: CZ82, Vicomte13, Too Conservative, SOSO, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#49)
Hon. William Ellis Sharp
ACLU of Kentucky
315 Guthrie Street
Suite 300
Louisville, Kentucky 40202
(502) 581-9746
Hon. Laura E. Landenwich
Clay Daniel Walton Adams, PLC
462 South Fourth Street Suite 101
Louisville, Kentucky 40202
(502) 561-2005
Hon. Roger K. Gannam
Hon. Jonathan D. Christman
Liberty Counsel
P. O. Box 540774
Orlando, Florida 32854
(407) 875-0770
Donahue Law Group, PSC
410 South Main Street
P. O. Box 659
Somerset, Kentucky 42502-0659
(606) 677-2741
Hon. Cecil R. Watkins
Rowan County Attorney
600 West Main Street
Morehead, Kentucky 40351
(606) 784-4640
Hon. Claire E. Parsons
Adams Stepner Woltermann & Dusing, PLLC
40 West Pike Street
P. O. Box 861
Covington, Kentucky 41012-0861
(859) 394-6200
Stoll Keenon Ogden, PLLC
300 West Vine Street Suite 2100
Lexington, Kentucky 40507
(859) 231-3000
Hon. David Earl Fleenor
Stoll Keenon Ogden, PLLC
300 West Vine Street Suite 2100
Lexington, Kentucky 40507
(859) 231-3087
Hon. Michael R. Campbell Campbell, Rogers & Hill, PLLC
154 Flemingsburg Road
Morehead, Kentucky 40351
(606) 783-1012
Hon. Michael B. Fox
Fox Law Office
185 Tom T. Hall Boulevard
P. O. Box 1450
Olive Hill, Kentucky 41164-1450
(606) 286-5351
Hon. Richard A. Hughes
P. O. Box 1139
Ashland, Kentucky 41105
(606) 325-3399
Hon. Sebastian M. Joy
Joy Law Office
2710 Louisa Street
P. O. Box 411
Catlettsburg, Kentucky 41129
(606) 739-4569
Hon. Andy Markelonis
2706 Louisa Street
P. O. Box 464
Catlettsburg, Kentucky
(606) 739-8616 41129
Hon. Jeremy L. Clark
2706 Louisa Street
P. O. Box 532
Catlettsburg, Kentucky (606) 739-6774 41129
#63. To: nolu chan, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#62)
The issuing deputy has fully complied with Judge Bunning's order by issuing a purported license which states that it is issued pursuant to a federal court order by the city of Morehead, Kentucky.
#64. To: SOSO (#63)
At battle of jurisdiction? I am betting the Fed will win and that when all is said and done the licenses issued by the Deputies are legal.
#65. To: SOSO, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#63)
At battle of jurisdiction? I am betting the Fed will win and that when all is said and done the licenses issued by the Deputies are legal.
MR. CHRISTMAN: -- and in this case, all of those alternatives being made available and presented with a party in this case, including Governor Beshear and Commissioner Onkst who are ready, equipped, and available to make these alternatives available because it's a license -- it's a Kentucky marriage license that's requiring Kim Davis personally to authorize that license and affix her name on it.
THE COURT: … The defendant argues that it's not a situation to where contempt is warranted because less intrusive alternatives are available.
1 While the Status Report reflects that Plaintiff's marriage licenses have been altered so thai "Rowan County" rather than "Kim Davis" appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court's finding that the deputy clerks have complied with the Court's Order.
#66. To: nolu chan (#65)
#67. To: nolu chan, SOSO, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#65)
There is no battle of jurisdiction. The State has jurisdiction over who can issue marriage licenses and what they must contain. In interpreting the State statute, the highest court of the State has the final say. If state law says it must bear the name of the County Clerk, there is no Federal authority to overrule that. If state law says that licenses in Rowan County must be issued under the authority of the Rowan County Clerk, it is not up to the Federal government to authorize the city of Morehead to authorize licenses.
#68. To: CZ82, nolu chan, SOSO, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, GrandIsland (#67)
the Feds saying homo marriage is now the law of the land
#69. To: buckeroo (#68)
(Edited)
#70. To: Vicomte13 (#69)
So, if a state, or county, decides to stop issuing marriage licenses, what are they doing?
#71. To: Vicomte13, Y'ALL (#69)
(Edited)
the Supreme Court has ruled that non-discrimination in marriage is the constitutional law of the land. Therefore, it is. It doesn't matter that many think that decision has no founding in "original intent". The "original intent" of the Constitution is not, in fact, the Supreme Law of the Land. It's a minority ideological position. What the Supreme Court says the Constitution is, is what the Constitution is, in our system.
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