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United States News Title: APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL The complete filing, with appendices, is a 244 pp PDF. Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 1 No. 15-5880 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE; STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON SKAGGS; and BARRY SPARTMAN, On Appeal From The United States District Court For The Eastern District of Kentucky In Case No. 15-cv-00044 Before The Honorable David L. Bunning APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL A.C. Donahue Horatio G. Mihet, Counsel of Record hmihet@lc.org / rgannam@lc.org / j christman@lc.org - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 2 Pursuant to Fed. R. App. P. 8(a)(2) and 27, Appellant Kim Davis ("Davis") hereby moves this Court, on an emergency basis, for a stay pending appeal of the district court's September 3, 2015 injunction order. (R.74.) INTRODUCTION This appeal began with the district court's entry of its August 12, 2015 preliminary injunction ordering Davis to issue marriage licenses to the named Plaintiffs. (R.43 (the "Injunction").) Davis immediately filed a notice of appeal of the Injunction, bringing it within this Court's jurisdiction, and depriving the district court of jurisdiction to alter or expand the Injunction's scope.1 (R.44 (Injunction and notice of appeal attached hereto as Exhibit A).) But the district court did just that, without fair notice or hearing, by entering a new injunction order that materially expanded the original Injunction while it was already on appeal to this Court. (R.74 (the "Expanded Injunction").) The district court's Expanded Injunction lays waste to well-established principles of jurisdiction and due process in the federal court system while an appeal is pending. And, under color of the Expanded Injunction, the district court has coopted a supervisory role over the operations of the Rowan County, Kentucky Clerk's Office. __________ 1 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 3 Davis timely appealed the Expanded Injunction. (R.82 (Expanded Injunction and notice of appeal attached hereto as Exhibit B).) Quite apart from Davis' religious liberty interests involved in her appeal of the original Injunction on the merits, her appeal of the Expanded Injunction, and this request for stay, involve only the issue of the district court's acting without jurisdiction. The district court's far-reaching expansion of the original Injunction must be reversed, and should be stayed pending this Court's decision on the merits. STATEMENT OF FACTS The Injunction On July 2, 2015, less than one week after the Supreme Court decided Obergefell v. Hodges and the Kentucky Governor issued a directive ordering all county clerks to personally authorize the issuance of Kentucky marriage licenses to same-sex couples, Plaintiffs filed this lawsuit demanding that Davis authorize and approve their Kentucky marriage licenses, despite widespread availability of licenses and Davis' undisputed religious conscience objection to same-sex "marriage."2 (R.1, Compl.) __________ 2 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 4 Plaintiffs filed the action on behalf of themselves and a putative class consisting of "all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendant's policy." (R.1, Compl., PgID 9.) "Named Plaintiffs" also moved for a preliminary injunction to bar Davis "from enforcing the challenged policy of refusing to issue marriage licenses against them" (R.2, Pls.' Mot. Prelim. Inj., PgID 34 (emphasis added)), and submitted a proposed Order enjoining Davis "from enforcing the policy of refusing to issue marriage licenses to any future marriage license applications submitted by the Named Plaintiffs" (R.2-2, Proposed Prelim. Inj. Order (emphasis added)). The district court hastily scheduled a full evidentiary hearing on the injunction motion, to occur on July 13, 2015—just eleven days after the motion was filed. (R.5, Order.) Plaintiffs did not, however, obtain service of process on Davis prior to the hearing. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 105:15-107:7.) Thus, Davis' counsel appeared specially and objected to the district court's proceeding with the hearing, without having obtained jurisdiction over Davis through service of process. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2, 117:1-10.) Deeming the fundamental jurisdictional defects mere "Road blocks to getting to the merits," the district court overruled counsel's objection to proceeding without Davis, took evidence, and heard argument on Plaintiffs' preliminary injunction motion. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 117:1-119:7.) 3 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 5 After allowing all of Plaintiffs' evidence and hearing argument, the district court "continued in progress" the July 13, 2015 hearing (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 207:2-4), and concluded the hearing on July 20, 2015 (R.26, Prelim. Inj. Hr' g Tr. July 20, 2015). Plaintiffs' evidence at both hearings was limited exclusively to the named Plaintiffs' claims.3 On August 12, 2015, the district court granted Plaintiffs' motion for preliminary injunction by its Memorandum Opinion and Order (R.43 (the "Injunction").) Exactly as requested by Plaintiffs in their motion and proposed order (R.2, 2-2), the Injunction enjoins Davis "from applying her 'no marriage licenses' policy to future marriage license requests submitted by Plaintiffs." (R.43, Inj., PgID 1173 (emphasis added).) Thus, there was complete agreement between what Plaintiffs requested and what the district court ordered.4 __________ 4 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction motion against Davis, the district court brushed away any urgency regarding Davis’ own motion for preliminary injunction against Third-Party Defendant Governor Beshear (R.39), and effectively denied the motion by ordering a stay (on the court’s own motion) of all proceedings on Davis’ motion pending this Court’s decision on the merits of Davis’ appeal of the Injunction against her. (R.58, Order Aug. 25, 2015, PgID 1289.) Davis appealed to this Court the district court’s effectual denial of her preliminary injunction motion (R.66, Notice of Appeal), which appeal is docketed at Case No. 15-5961. - - - - - 4 Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 6 Plaintiffs' Request For Class Certification On August 2, 2015, Plaintiffs filed a motion for class certification. (R.31, Pls.' Mot. Class Cert.). On August 11, 2015, Davis filed a motion for extension of time to respond to Plaintiffs' class certification motion, requesting that the Court set a response date for ninety (90) days after the district court ruled on all of the motions pending before the district court at that time.5 (R.42, Mot. Ext. Time Respond.) Plaintiffs filed no written opposition to this motion in the time allotted under the Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs' time to oppose expired, showing that "Plaintiffs' failure to file a timely written opposition constitutes a waiver of any opposition to Davis' motion for extension of time." (R.56, Reply Br. Supp. Mot. Ext. Time Respond, PgID 1289.) On August 25, 2015, the district court granted Davis' motion for extension of time. (R.57, Virtual Order Aug. 25, 2015 ("Plaintiffs having filed no opposition to the MOTION, IT IS ORDERED that Defendant Davis' response to said motion is due 30 days after the Sixth Circuit Court of Appeals renders its decision on the appeal of the Court's granting of Plaintiffs' motion for a preliminary injunction.").) __________ 5 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 7 The effect of this order was to stay all proceedings on Plaintiffs' class certification motion until this Court decides the appeal of the Injunction on the merits. Plaintiffs' Motion to "Clarify" the Injunction and the "Hearing" Despite the unambiguous agreement between what Plaintiffs requested in their motion for preliminary injunction and what the district court granted in the Injunction, Plaintiffs manufactured a disingenuous motion to "clarify" the Injunction to encompass a class of persons not covered by the Injunction. (R.68, Pls.' Mot. "Clarify" Prelim. Inj.) Specifically, Plaintiffs moved: for an order to clarify or, in the alternative, to modify the preliminary injunction to state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky. (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1488 (emphasis added).) Thus, rather than a motion to "clarify," Plaintiffs actually sought to convert the Injunction's relief, which was limited and personal to them by their own request, into a class-wide preliminary injunction even though (1) they had never previously requested a class-wide injunction (R.2-2, Proposed Prelim. Inj. Order), (2) they presented no actual evidence regarding the purported "other members of the putative class" (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489); and (3) their actual motion for class certification was stayed. (R.57, Virtual Order Aug. 25, 2015.) 6 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 8 Plaintiffs filed their motion to "clarify" the Injunction on September 1, 2015, three weeks after the district court entered its Injunction. (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1488-91.) Moreover, Plaintiffs' motion to "clarify" was filed on the heels of, or "contemporaneously with" (Plaintiffs' words), their motion to hold Davis in contempt of court for violating the Injunction by failing to authorize a marriage license for one Plaintiff couple. (R.67, Pls.' Contempt Mot.) Within minutes of Plaintiffs' filing the contempt motion, the district court scheduled a contempt hearing to occur two days later, ordered Davis and all of her deputy clerks to be present at the hearing, and limited Davis to filing a five-page opposition by close of business the next day (which Davis did).6 (R.69, Order Sept. 1, 2015, PgID 1496; see also R.72, Contempt Resp., PgID 1540-46.) Approximately forty-eight hours later, on September 3, 2015, the district court commenced the hearing it had exclusively noticed for Plaintiffs' contempt motion. (R.69, Order Sept. 1, 2015, PgID 1496 ("IT IS ORDERED that this matter be, and is, hereby set for a hearing on Plaintiffs Motion to Hold Defendant Kim Davis in Contempt of Court DE[67] on Thursday, September 3, 2015 at 11:00 a.m. in Ashland, Kentucky."); R.78, Contempt Hr'g (the hearing transcript, attached hereto __________ 7 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 9 as Exhibit C).) Before taking up the contempt motion, however, and without any advance notice to Davis, the district court called up Plaintiffs' motion to "clarify" the Injunction. (R.78, Contempt Hr'g, PgID 1570:21-1571:22, 1572:19-1573:19.) Davis' counsel objected to proceeding on the motion to "clarify" due to lack of fair notice, and due to the district court's lack of jurisdiction to expand the Injunction because it was already on appeal. (R.78, Contempt Hr'g, PgID 1573:20-1580:19.) The district court acknowledged that the motion to "clarify" was not noticed for hearing. (R.78, Contempt Hr'g, PgID 1571:18-20 ("The case wasn't noticed for that hearing. ").) The district court also acknowledged that the so-called "clarification" sought by Plaintiffs was, in fact, to add relief to the Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. (R.78, Contempt Hr'g, PgID 1578:20-25 ("I recognize they did not request it in the original motion." (emphasis added)).) Nonetheless, over Davis' objection, and without taking any evidence to support this class-wide relief, the district court granted the expansion of the Injunction. (R.78, Contempt Hr'g, PgID 1580:3-15.) After expanding the Injunction, the court immediately passed the issue to this Court. (R.78, Contempt Hr'g, PgID 1580-81 ("We'll just include that as part of the appeal. . . . And the Sixth Circuit can certainly decide if that's appropriate.").) Having expanded the Injunction, the district court then proceeded with hearing the only motion the court noticed for hearing, Plaintiffs' contempt motion. 8 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 10 (R.78, Contempt Hr'g, PgID 1581:18-19 ("Let me now turn to the actual merits of the matter that's before the Court.").) The court ordered Davis to jail as a contempt sanction for Davis' refusal to issue a marriage license, in violation of her conscience, to one Plaintiff couple.7 (R.78, Contempt Hr'g, PgID 1659:22-1661:25.) The condition for Davis' release would be her compliance with the Expanded Injunction, not the original Injunction (R.78, Contempt Hr'g, PgID 1661:18-1662:16.) The district court then appointed criminal defense counsel for each of Davis' deputy clerks—all of whom had been summoned in advance to the hearing—and interrogated each deputy clerk as to whether each of them would issue marriage licenses without Davis' authorization. (R.78, Contempt Hr'g, PgID 1667:19 __________ 9 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 11 1730:6.) All but one (Davis' son) were coerced by the threat of contempt sanctions to answer "yes."8 (Id.) On September 8, 2015, the sixth day of Davis' incarceration, Plaintiffs filed a status report, showing the district court that the Plaintiffs had received marriage licenses from the deputy clerks.9 (R.84, Status Report.) Following the status report, the district court ordered Davis released, stating in its order the court was "satisfied that the Rowan County Clerk's Office is fulfilling its obligation to issue marriage licenses" under the Injunction. (R.89 (the "Release Order"), PgID 1827-28.) The Release Order commands, however, "Davis shall not interfere in any way, directly __________ 9 The status report showed that three of the four Plaintiff couples had received marriage licenses. (R.84, Status Report, PgID 1798.) Plaintiffs had previously shown the court, however, that as of August 13, 2015, Plaintiffs Burke and Napier were “making new wedding arrangements.” (R.46, Pls.’ Resp. Mot. Stay Prelim. Inj., PgID 1235.) This fourth couple has never testified in this case or otherwise supplied verified proof that they are qualified to obtain a marriage license, or that they have not received one, both prerequisites to injunctive relief. (R.29, Resp. Pls.’ Mot. Prelim. Inj., PgID 359.) Moreover, based on the status report, the district court found, “Plaintiffs have obtained marriage licenses . . . .” (R.89, Release Order, PgID 1827.) 10 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 12 or indirectly, with the efforts of her deputy clerks to issue marriage licenses," on pain of new sanctions for contempt. (R.89, Release Order, PgID 1828.) The order also requires the deputy clerks, through their appointed criminal defense counsel, to file status reports with the district court every fourteen days. (R.89, Release Order, PgID 1828.) Emergency Motion to Stay Davis now moves this Court for an order staying the September 3, 2015 Expanded Injunction pending appeal. Seeking a ruling from the district court on a stay request is "impracticable" under Fed. R. App. P. 8(a)(2)(A)(i), due to the extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be heard, and the district court's haste to pass the matter to this Court for determination—"the Sixth Circuit can certainly decide if that's appropriate" (R.78, Contempt Hr'g, PgID 1580-81). Accordingly, Davis now seeks a stay from this Court. ARGUMENT In deciding a motion for stay pending appeal, this Court balances the same four factors that are traditionally considered in evaluating a motion for preliminary injunction: "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants 11 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 13 the stay; and (4) the public interest in granting the stay." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). I. Davis has a sufficient likelihood of success on the merits of her appeal to warrant an immediate stay of the Expanded Injunction. The district court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. There is no doubt as to Davis' likelihood of success in obtaining reversal of the Expanded Injunction on the merits. "[A] a district court may not alter or enlarge the scope of its judgment pending appeal . . . ." N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). "The standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may enforce its judgment but not expand upon it." Am. Town Ctr. v. Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th Cir. 1995) ("[S]ince the district court's . . . orders were already on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds which it had required defendants to provide in its . . . orders." (emphasis added)). Any amendment of an order without jurisdiction is a "nullity." Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) ("Since the district court was without jurisdiction to amend its order . . . the Amended Order . . . is a nullity."); United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) ("In the present case, the 12 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 14 district court's order is 'null and void since that court was without jurisdiction . . . after the appeal had been taken.'"). Plaintiffs' Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis to issue licenses to the "Named Plaintiffs." The resulting Injunction enjoined Davis to issue licenses, expressly and only, to the "Plaintiffs." The scope of the Injunction could not be clearer. There is no "confusion as to the Order's scope," as Plaintiffs facetiously allege in their thinly-veiled motion to "clarify." (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489.) Thus, expanding the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world who wants a marriage license in Rowan County—can in no way be described as a clarification. The expansion of the class is an expansion of the Injunction, which the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity, and unquestionably is due to be reversed on the merits. II. Davis is substantially more harmed than the named Plaintiffs absent a stay of the Expanded Injunction pending appeal. In weighing the harm that will occur as a result of granting or denying a stay, this Court generally considers three factors: "(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided." Michigan Coal., 945 F.2d at 154. The "key word" in this consideration 13 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 15 is "irreparable," and the harm must be "both certain and immediate, rather than speculative or theoretical." Id. Given the strength of Davis' position on the merits, her required showing on irreparable injury is reduced. "The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury [the moving party] will suffer absent the say. Simply stated, more of one excuses less of the other." Mich. Coal., 945 F.2d at 153 (internal citation omitted). In other words, "a stay may be granted with either a high probability of success and some injury or vice versa." State of Ohio v. Nuclear Regulatory Comm 'n, 812 F.2d 288, 290 (6th Cir. 1987). Nonetheless, Davis's harm from the denial of a stay will be both real and irreparable. Pursuant to the Release Order, the district court is now supervising the operations and personnel of the Rowan County Clerk's Office, including Davis as the Clerk, and her deputy clerks. (R.89, Release Order, PgID 1828.) Far from being straightforward, however, the Release Order's command that "Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses" substantially and ambiguously interferes with Davis' ability to manage the legitimate affairs of her office which are unrelated to her individual position on marriage licensing. For example, Davis' management judgment to assign a particular deputy clerk or clerks exclusively to non-marriage-licensing duties—based on the needs of the 14 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 16 office10—could be deemed "interference] . . . in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses . . . ." (R.89, Release Order, PgID 1828.) Furthermore, the Release Order's directive conflicts with Davis' own legal duty, as an employer, to consider and grant as appropriate any deputy clerk's request for religious accommodation relating to marriage licenses11 under laws like Title VII and the Kentucky RFRA. These ambiguous burdens on Davis' management of the affairs of her office all carry the specter of new (and presumably, more severe) contempt sanctions, and the threat is indefinite because the Expanded Injunction opens the Injunction's relief to everyone (in the world) who may desire a Kentucky marriage license issued in Rowan County. The harm from having to operate under this constant threat is irreparable, for even success on the merits of Davis' appeals cannot restore the months of constant strain imposed on Davis, her office, and her employees by the district court's intrusive supervision. The foregoing burdens and threats of contempt sanctions are more than hypothetical; Davis has already spent six days in jail that Plaintiffs could obtain the relief ordered by the original Injunction (while its merits are still on appeal). But, such burdens and threats are unnecessary and improper. As an order of enforcement, the Release Order serves no purpose with respect to the original Injunction because __________ 11 See supra, n. 8. 15 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 17 only the Plaintiffs were granted relief in the original Injunction, and the district court is already "satisfied" that Plaintiffs have received their ordered relief. (R.89, Release Order, PgID 1827-28.) Thus, the district court only has an enforcement interest under the Expanded Injunction which, as shown herein, is null and void as exceeding the district court's jurisdiction. Only a stay of the Expanded Injunction pending Davis' appeal will avoid this onerous and improper exercise of enforcement power. In stark contrast to the threat of sanctions hanging over Davis each day she enters her office while waiting for relief from an impartial audience in this Court on her appeals, Plaintiffs will suffer no harm if the Expanded Injunction is stayed pending appeal. Plaintiffs have already received the benefits of the Injunction, to the "satisfaction" of the district court. (R.89, Release Order, PgID 1827-28.) Plaintiffs received no additional relief from the Expanded Injunction; staying its enforcement pending Davis's appeal cannot harm them. III. The public interest favors granting a stay. No public interest is served by upholding an order exceeding a district court's jurisdiction. To the contrary, the public is only served by the disregard of any such order, which is "null and void." See Holloway, 740 F.2d at 1382. Furthermore, the federal court supervision over Davis' office imposed by the Release Order, in enforcement of the Expanded Injunction, violates established principles of federalism and comity, usurping the role of a publicly elected official 16 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 18 in the Commonwealth of Kentucky and invading the province, discretion, and affairs of her office. It is also contrary to contempt principles, for in devising enforcement remedies, federal courts are to "take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." Milliken v. Bradley, 433 U.S. 267, 280-81 (1977). Indeed, it is incumbent upon federal district courts that sanctions imposed against state officials should be the "least intrusive" remedy available. See Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984); Spallone v. U.S., 493 U.S. 265, 276 (1990). The public is not served by the violation of such principles for any length of time. As shown herein, from the commencement of this case, Plaintiffs have received procedural preferences, notwithstanding even fundamental jurisdictional defects. Davis has received the opposite, culminating in incarceration for conscience, and the threat of more severe sanctions under an invalid order which the district court had no jurisdiction to enter. For all of the foregoing reasons, Davis requests the following: 17 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 19 RELIEF REQUESTED Appellant Kim Davis respectfully requests that this Court: (1) grant immediate consideration and (2) enter an order staying the district court's September 3, 2015 Expanded Injunction pending final resolution of the appeal in this Court. DATED: September 10, 2015 A.C. Donahue Respectfully submitted: Horatio G. Mihet, Counsel of Record 18 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 20 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of September, 2015, I caused the foregoing document to be filed electronically with the Court, where it is available for viewing and downloading from the Court's ECF system, and that such electronic filing automatically generates a Notice of Electronic Filing constituting service of the filed document upon the following: William Ellis Sharp Daniel J. Canon William M. Lear, Jr. Palmer G. Vance II Daniel Mach James D. Esseks - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 21 /s/ Roger K. Gannam Roger K. Gannam Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 61.
#5. To: nolu chan (#0)
(Edited)
The case turns, and fails, on footnote 1. Yes, Davis filed appeals, but the appeals were frivolous. Gay marriage is a constitutional right, and Davis' actions, including the appeal, were (and are) an invidious attempt to prevent people from exercising their constitutional rights. Her lawyers claim that there were substantial arguments in her brief against the injunction, but as a matter of legal fact those arguments are not (or will be found not to be) substantial: she is simply seeking to evade doing her constitutional duty, and to delay doing it as long as possible. The Supreme Court refused to hear her case, and the Sixth Circuit may grant her a hearing, but will then move to rapidly dispose of it. Marriage is within the sphere of privacy that IS a right, and the Supreme Court has found even gay marriage to be a constitutional right. It is stare decisis. Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all. The notion that people can just "go to the next town" is not valid for constitutional rights. Blacks could just "go to the next hotel", or the next restaurant or store, but the whole point of the Court decisions, then and now, is to compel EVERYBODY who faces people in government or in commerce to respect the constitutional rights in question of everybody else. The Sixth Circuit is not going to permit any delay, and is not going to give her a long hearing. They're going to slap her down and uphold the injunctive relief granted by the judge. Nor will the Sixth Circuit permit Davis and her lawyers to play the delaying game. It will be very much as it was with the birthers: the courts are not interested in the argument. And in this case the Supreme Court has decided that gay marriage is a constitutional right. Most of the judiciary agrees. The Sixth Circuit is not going to allow itself to become a vehicle by which individual officials assert what amounts to a right of rebellion against provisions of the Constitution they do not like. And it isn't going to permit things to dissolve into a circus either. The Supreme Court has spoken, twice - first in the gay marriage decision, and second in their refusal to hear Davis' case when she first brought it to them. The District Judge already resorted to jailing for contempt, and a work-around has been found for this rebellious official. She has no case on the merits of her actions: they are unconstitutional, and the Sixth isn't going to let itself be harnessed up so that she can play a delaying game to thwart the Supreme Court. She can file briefs, but the Courts will swiftly dispose of them. In the end, she loses in the American Court system,. You cannot stand against a recent constitutuonal decision and win, especially not a popular one.
If the argument in the instant appeal is accurate: Davis' argument is, in part: The district court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. There is no doubt as to Davis' likelihood of success in obtaining reversal of the Expanded Injunction on the merits. "[A] a district court may not alter or enlarge the scope of its judgment pending appeal . . . ." N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). "The standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may enforce its judgment but not expand upon it." Am. Town Ctr. v. Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th Cir. 1995) ("[S]ince the district court's . . . orders were already on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds which it had required defendants to provide in its . . . orders." (emphasis added)). Any amendment of an order without jurisdiction is a "nullity." Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) ("Since the district court was without jurisdiction to amend its order . . . the Amended Order . . . is a nullity."); United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) ("In the present case, the 12 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 14 district court's order is 'null and void since that court was without jurisdiction . . . after the appeal had been taken.'"). Plaintiffs' Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis to issue licenses to the "Named Plaintiffs." The resulting Injunction enjoined Davis to issue licenses, expressly and only, to the "Plaintiffs." The scope of the Injunction could not be clearer. There is no "confusion as to the Order's scope," as Plaintiffs facetiously allege in their thinly-veiled motion to "clarify." (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489.) Thus, expanding the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world who wants a marriage license in Rowan County—can in no way be described as a clarification. The expansion of the class is an expansion of the Injunction, which the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity, and unquestionably is due to be reversed on the merits. If the argument is valid, the Expanded Injunction was a nullity, issued without jurisdiction. Every action taken pursuant to the nullity lacked jurisdiction and was a nullity. Below is the transcript of the hearing debate of this issue in relevant part, transcript pp 8-19, PDF pp 71-82. [8] [...] Okay. We have several motions that are pending. The motion that we're here to decide is Docket 67, the motion to hold Ms. Davis in contempt. There was a response filed yesterday. There was also a motion filed on Tuesday. - - - - - [9] Today's the 3rd, right, Madam Clerk? Is that right? DEPUTY CLERK: Yes, Your Honor. THE COURT: Okay. Tuesday of this week, a motion pursuant to Rule 62(c) of the Federal Rules of Civil Procedure to clarify the preliminary injunction pending appeal. And then just yesterday there was a motion filed by defendant, Davis for an injunction pending appeal, as well as a motion by Senate President Robert Stivers, which I've mentioned earlier, for leave to file a brief as an amicus. Mr. Gannam, Mr. Christman, I know you had indicated in your response in a footnote -- I think it's footnote 2 to Docket 72, that you want to file a written response to the motion filed by plaintiffs on Tuesday. We're here today. The case wasn't noticed for that hearing. However, I think it makes sense to take that motion up today. So whatever you would file in a written response, I'm going to go ahead and let you be heard on that today. One other thing I want to mention, there was a footnote -- I think it's also in that same response -- where you objected to the page limitation. - - - - - [10] I'm not going to hold you to the page limitation. I'm not just going to consider the first five pages. You filed seven pages in your response. They filed seven pages in their motion. I'm considering the seven pages of the motion, as well as the seven pages of your response. So your objection as it relates to the length of the pages is sustained. So I know you had objected formally to that, but I read through that, and I just want to make sure that you appreciate I'm going to consider your entire response. And I have read your response. And it was just filed yesterday. There's been a lot of paperwork filed in a very short amount of time, and we have been meeting, I don't want to say around the clerk, as some of us have to have a little bit of sleep, but we have been trying to prepare for this hearing as best we can. So I want to go ahead and hear you from now on Docket 6 I think it's 68, which, in essence, for everyone in attendance, as you know, procedurally, the Court granted the plaintiffs' motion for the preliminary injunction back on August 12th, enjoining Ms. Davis from applying her "no marriage licenses" policy to future marriage licenses requested by the - - - - - [11] plaintiffs in this case. The motion itself seeks to clarify pursuant to Rule 62(c) of the Federal Rules of Civil Procedure, to have that injunction include any future marriage license requests submitted by plaintiffs or any other individuals who are legally eligible to marry. That was filed on the 1st. There are a couple of companion cases, 46 and I think 4 9? 51? I can't remember the numbers, but there are three cases now pending with various plaintiffs. You represent the defendant on all those other cases; do you not, Mr. Gannam? MR GANNAM: We do, Your Honor. THE COURT: Okay. So I want to just let you -- I want to give you a chance to be heard, and then I'll give you a chance, Mr. Sharp. Because I want to take up this issue, and then we'll move on to the contempt issue. MR. GANNAM: Thank you, Your Honor. We object to proceeding on the motion to clarify or modify the injunction that's already been issued. First of all, just because of the timing. This hearing was called quickly. That motion was filed, and we simply haven't had adequate time to prepare - - - - - [12] to -- to argue against that motion. THE COURT: Well, I've had very little time to prepare myself, so I'm -- the issues are the same. All the issues you've raised in 1544, the defenses that your client has raised, the responses, I'm sure, would all be the same. It's the same issue for each case. If I were to -- for instance, if the order only applies to the four plaintiffs -- I guess eight plaintiffs in this case -- it would be -- it would not be a violation perhaps of the Court's order dated 8-12-2015, if your client, or any of the deputies, did not issue a marriage license to anyone eligible to marry who aren't these plaintiffs because that's not covered under the order. Would you agree with that? MR. GANNAM: I agree that would not be a violation of the order, yes, Your Honor. THE COURT: Okay. So why would there be -- why should I parse this out? And I realize from the very beginning, and you have in your written pleadings, seemed to take issue with the Court's attempt to try to expeditiously take up its docket in this case. Why doesn't it make sense to consider all of the cases together, at least as it relates to the other plaintiffs who would be eligible to marry? - - - - - [13] MR. GANNAM: Your Honor, first of all, the -- THE COURT: Well, your objection to not taking it up today will be overruled because I really want to hear you on this. MR. GANNAM: The plaintiffs moved for preliminary injunctive relief against -- with respect to themselves only. They have -- THE COURT: I understand that. MR. GANNAM: And the -- THE COURT: At that time, I think they were the only plaintiffs that had been potentially identified. MR. GANNAM: They have a -- a pending motion for class certification -- THE COURT: That I stayed. MR. GANNAM: -- which has been stayed. They're essentially seeking a class-wide -- THE COURT: I don't think -- I'm not going to certify a statewide class. I'm -- I'm interested in the Rowan County Clerk because she's a defendant in all three of the cases that have been filed on my docket here in Ashland. MR. GANNAM: Well, their class that they've alleged is the class consisting of Rowan County residents. And so to grant the injunction, it would - - - - - [14] apply to all Rowan County residents would essentially be granting a class-wide injunction based on the facts that they've alleged here. THE COURT: Well, why shouldn't -- wouldn't it seem rather odd to only have an injunction that applies to four couples versus -- if you had John Doe and someone other than John Doe who would be eligible to marry Jane Roe, or what have you, same-sex, opposite-sex, why wouldn't they -- doesn't it seem a little bit unusual to have an order that would apply to some, but not others? MR. GANNAM: Your Honor, that's the motion that the plaintiffs filed. THE COURT: I understand, but they're not seeking to amend that. MR. GANNAM: And, Your Honor, our objection is not only on the timing, but also as to the fact that the prior order is on appeal. And what they're essentially seeking to do is to change that order and to do something else, to expand it. And this Court does not have jurisdiction to -- to do anything with respect to that prior injunction while it's on appeal, so this would have been treated as a new injunction. THE COURT: Would you prefer that I order that my 8-12-2015 order, change the caption and just - - - - - [15] enter a preliminary injunction as it relates to those plaintiffs without -- it's not my intention to do that, but the issues are exactly -- well, seem to be fairly consistent throughout the three cases, this one and the two companion cases. MR. GANNAM: Well, the difference, Your Honor, is in the plaintiffs' case, they could each allege and put on evidence as to their eligibility to marry, for example. THE COURT: And I think they have done that. MR. GANNAM: Whereas they're now seeking to expand an injunction to cover unnamed members of the putative class-- THE COURT: Who would otherwise be eligible to marry. MR. GANNAM: But we have -- unless it's a class-wide injunction, they're essentially asserting rights that haven't been established yet in this court. THE COURT: Okay. All right. What's your response? MR. SHARP: Your Honor, 62(c) specifically contemplates and authorizes this Court to modify the injunction while an interlocutory appeal from the preliminary injunction ruling is pending. - - - - - [16] The Court is correct that it does retain jurisdiction to actually grant plaintiffs' motion. The Court is also correct insofar as the legal issues and the relevant facts regarding the disposition of plaintiffs' motion to modify or amend that preliminary injunction ruling are identical, not only as to the plaintiffs in this case, but to any other individuals who would otherwise be qualified to marry. We're not asking the Court to compel the Rowan County Clerk's office to issue marriage licenses on request, but rather upon certification that other legal requirements are met. As the Court's aware, prior to Obergefell, the Rowan County Clerk's office issued 99 marriage licenses this year, 214 last year. Obviously, we're talking about hundreds of people who are affected and are continuing to be denied marriage licenses because of the "no marriage license" policy. THE COURT: All right. A brief reply. MR. GANNAM: Your Honor, essentially, they're seeking to get relief that they didn't request in the original motion and -- THE COURT: I know. They're requesting it now. I recognize they did not request it in the original motion. - - - - - [17] GANNAM: And so it can't be a clarification or a modification of that prior order because it would be -- it would be an expansion of that prior order, which is -- which is improper while it's on appeal, so this must be treated as a new motion for preliminary injunction. And we would maintain our objection that it would be improper to proceed on that today with the -- the little notice that we've had and without the opportunity to -- to again, put on evidence as we deem necessary to establish our defense to it. THE COURT: All right. And I want to give you all an opportunity to be heard, to the extent you wish to be heard on this. Ms. Parsons? MS. PARSONS: The County has no position on this, Judge. THE COURT: All right. Mr. Watkins? MR. WATKINS: No, Judge. THE COURT: Mr. Vance? MR. VANCE: No, Your Honor. THE COURT: All right. I must apologize -- I'm -- you've cited Rule 62(c) in your motion. I may have an older version, and I have to apologize; I have a cataract, so my right eye is not as good as it could be. - - - - - [18] All right. Thank you. I did have an older version. All right. Over the plaintiffs' objection -- defendant's objection, I'm going to grant the motion, finding that the prior injunction be modified to reflect that it preliminarily enjoins Ms. Davis in her official capacity from applying her "no marriage license" policy to any future marriage license requests submitted by the named plaintiffs in this case, or -- and this is the modification -- or by any other individuals who are legally eligible to marry in the Commonwealth of Kentucky. And here's the order. We'll go ahead and enter the order. I have signed it dated today. Madam Clerk. Thank you. DEPUTY CLERK: Thank you, Your Honor. THE COURT: And I'll rely upon on Rule 62(c). MR. GANNAM: Your Honor, may I make a --- THE COURT: And your objection's overruled. MR. GANNAM: May I make a request for a certification for immediate appeal of this order? THE COURT: You can appeal that, yes. That's part of the appeal. We'll just include that as part of the appeal. Any objection to that? - - - - - [19] MR. SHARP: No objection, Your Honor. THE COURT: Okay. Very well. So you can include that. And I'm sure someone has already requested the transcript of this proceeding. And the Sixth Circuit can certainly decide if that's appropriate. I do find, in granting that relief that's requested at Docket 68, the Court finds that given the fact that it does have two companion cases that involve, in essence, the very same allegations with the same lawyers, it just makes judicial sense to have the Circuit review the decision for all three of them. I'm not granting a class certification motion. But I do believe that allowing the injunction as it currently exists to apply to some, but not others, simply doesn't make practical sense, so that's the Court's ruling. All right. Let me now turn to the actual merits of the matter that's before the Court. [...] Here is the cited Rule 62: (a) Automatic Stay; Exceptions for Injunctions, Receiverships, and Patent Accountings. Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocutory or final judgment in an action for an injunction or a receivership; or (2) a judgment or order that directs an accounting in an action for patent infringement. (b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party’s security, the court may stay the execution of a judgment—or any proceedings to enforce it—pending disposition of any of the following motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a judgment; or (4) under Rule 60, for relief from a judgment or order. (c) Injunction Pending an Appeal. While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory three-judge district court, the order must be made either: (1) by that court sitting in open session; or (2) by the assent of all its judges, as evidenced by their signatures. (d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond. (e) Stay Without Bond on an Appeal by the United States, Its Officers, or Its Agencies. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department of the federal government. (f) Stay in Favor of a Judgment Debtor Under State Law. If a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. (g) Appellate Court’s Power Not Limited. This rule does not limit the power of the appellate court or one of its judges or justices: (1) to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending; or (2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered. (h) Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) In relevant part, "the court may... modify... an injunction on terms for bond or other terms that secure the opposing party’s rights. Modifying and expanding the injunction to cover the entire population of Rowan County does appear to secure any rights of any opposing party to the litigation. Does Rule 62(a) confer the authority claimed by Judge Bunning? Does the modification of the Injunction on appeal clarify its terms, or does the modification simply add the entire population of Rowan county, clarifying only the desire of Judge Bunning to add relief not previously sought. Due process is a right. If not followed, the offending Court may not get to sustain a ruling on the merits of a case. Strictly upon procedure, this may be like the case of Tom Brady's deflated balls. Upon Roger Goodell's violation of due process, the deflated balls belonged to Goodell. At the season opener, he was home playing with his deflated balls as the crowd chanted, "Where's Roger?"
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.
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.
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.
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.
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