The claim that the license is invalid strikes me as a sham for the reasons Marty recites. To return to the stay application, I think motion faces an uphill climb because, in large measure, Ms. Davis has made clear through her public statements and her counsel’s papers that her primary goal is to frustrate the implementation of Obergefell in her county, and only secondarily to secure a KRFRA exemption. I draw that conclusion from her refusal to seek an exemption in the Kentucky court system from the governor’s order, and from the gradual expansion of her asserted exemption from one personal to her to one that encompasses the office she holds. So I think one must be quite charitable to ascribe to her and her counsel the underlying assumption of good faith. But continuing that assumption, I think her stay application falls short of the requisite showings of probability of success, irreparable injury, the public interest and the balance of harms.
Contrary to her assertion, the filing of a notice of appeal does not deprive the district court of subject matter jurisdiction over preliminary relief. As the first case Ms. Davis cites, N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987) states, quoting earlier cases, “the rule depriving a district court of jurisdiction over matters pending on appeal "is neither a creature of statute nor . . . absolute in character." That recognition predates but foreshadows recent SCOTUS decisions that have confined subject matter jurisdiction determinations to matters that truly do implicate statutory and Article Three subject matter jurisdiction, whether in the context of “zone of interest” standing challenges or the fifteen employee coverage rule for Title VII. So the question properly stated by the stay application is not whether the district court acted without subject matter jurisdiction to act, but rather whether, in issuing the second injunction despite the pending appeal of his initial preliminary injunction, he abused his discretion. Judge Bunning had jurisdiction to adjudicate the Rule 23 motion for class certification despite the pending appeal, and he had jurisdiction to enter a new preliminary injunction on behalf of the putative class. Without combing through the record to determine whether the representations made in the stay application concerning class certification proceedings are accurate, it seems safe to say that Judge Bunning wrote inartfully rather than without subject matter jurisdiction. But even if he wrote inartfully, he wrote only to compel compliance with a binding Supreme Court decision. In reviewing his order, the court of appeals is likely to recognize that, were it to enter a stay, new plaintiffs could be expected to file within a matter of hours, if not days, a new lawsuit seeking classwide injunctive relief, move for a TRO and preliminary injunction on very short notice, and promptly obtain exactly the same classwide relief against Ms. Davis in her official capacity. Note that her own statements and conduct have made class certification under 23(b)(2) inevitable. So the court of appeals may wonder whether procedural errors of the sort Ms. Davis asserts should free her from compliance with the fourteenth amendment, and therefore whether she has shown the kind of irreparable injury required for entry of a stay pending appeal. Or it may wonder whether it should temporarily relinquish jurisdiction to permit modification of either injunction. In answering those questions, the court of appeals may return to the underlying merits of her free exercise and KFRFA claims. To be again charitable, her free exercise claim post Smith is meritless [less charitably, it violates Rule 11(b) and 28 U.S.C. 1927], but it is enough to note that it has no merit. But even if it were thought to have merit, it could not serve as a jurisdictional hook for her third party claims against the governor or for her attempts to compel joinder under Rule 19 to facilitate her assertion of KRFRA claims against state officials. Supplemental jurisdiction, or its antecedents, pendent and ancillary jurisdiction, enabled litigants to overcome statutory, not constitutional limitations on the judicial power of the United States under Article III and the eleventh amendment. Pennhurst is a constitutional limitation on that power; supplemental jurisdiction, now itself a creature of statutory law, cannot expand district court power into a region forbidden by the constitution. So Ms. Davis cannot secure a federal court ruling on her claims for injunctive relief against state officials. Even assuming, again charitably, that Ms. Davis can assert KRFRA defensively against private litigants seeking to enforce the fourteenth amendment against her office, we come to the question of what relief it might afford her. Recall that so far, as Marty has noted, the court has structured relief for plaintiffs in a way that frees Ms. Davis from either signing the marriage license or having her name appear on the marriage license; instead, deputy clerks simply enter the name of Rowan County Clerk’s Office on the form. So if Ms. Davis has a KRFRA claim at this point, it runs to her objection to the on the form of the name of the office she hold. That seems more than one bridge too far, most obviously because in official capacity claims, the suit is in substance one against the office, not the officeholder, and the office has no rights. Ms. Davis’s election vested her with a title, power and responsibility, but to the extent she asserts “l'état, c'est moi,” she is wrong. Mike Michael R. Masinter Professor of Law Nova Southeastern University 3305 College Avenue Fort Lauderdale, FL 33314 954.262.6151 masint...@nsu.law.nova.edu<mailto:masint...@nsu.law.nova.edu> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Saturday, September 12, 2015 4:34 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Cc: Michael Dorf <miked...@gmail.com>; Dellinger, Walter <wdellin...@omm.com>; Howard Wasserman <wasse...@fiu.edu>; Samuel Bagenstos <samba...@umich.edu> Subject: Re: What's happening in the Kim Davis case The license is valid even if Mason rather than Davis signs and issues it: As I posted earlier, KY law provides that the license must contain “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.” Moreover, KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” What Davis and Kevin call "county clerk authority" is no more needed here than in the case where the SG recuses from a case and the brief is signed, on behalf of the U.S., by the Deputy SG (as John Roberts did in, e.g., Metro Broadcasting). Indeed, Davis agrees that the license could be valid without her name, since that's ostensibly the remedy she's seeking--she insists that RFRA requires the Governor to issue a new license form that would omit her name and title. If Davis had genuinely been interested in making sure the marriages could go forward without her "imprimatur," she could have done in the first instance what the Deputy has done now--namely, left her name (and even her title!) off the licenses issued. (Kentucky marriage law would not prohibit that. But even if it did, Davis thinks RFRA requires an exemption, and she's the chief state official in the office; presumably Davis herself could implement RFRA.) Or she could have brought a state-court RFRA case seeking such a remedy from the Governor when she received the standard license form. Instead, she instructed the Deputies to deny licenses altogether, unless and until the legislature changes the law. But of course she didn't do any such thing, presumably because she has a quite different objective: She genuinely and sincerely and passionately believes that the Supreme Court got it wrong in Obergefell, and wishes not only to distance herself from that decision -- in the same way I wouldn't want to work on or to sign a government brief urging the death penalty -- but also to register a very vocal and public objection, based upon what she understands to be a biblical dictate about marriage. I think that registering such dissent from the Court's judgments is perfectly appropriate--honorable, even--even for a public official, as long as she does so in a way (such as by publicly announcing that Mason, rather than she, will henceforth be issuing licenses, or by resigning) that does not undermine the constitutional rights of the people who she was elected to serve. What I don't find plausible is her argument that her religious exercise is substantially burdened if the Clerk's Office, without her involvement, issues licenses that read either: "Issued this 9/_/2015 in the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk,” or "Issued this 9/_/2015 in the office of the Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk.” On Sat, Sep 12, 2015 at 11:30 AM, Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu>> wrote: If I were a plaintiff and the validity of my marriage depended on the validity of my license, I would argue that the deputy clerk issued the license under Davis's authority. Otherwise, I would have to point to some other county clerk, and there is no other candidate. Now maybe that would be a losing argument. If so, then I would end up having to argue that my marriage was valid (or should be regarded as valid for whatever purpose I find myself arguing about) even though the license was not. I am not an expert in family law, but I understand there are some pretty good arguments one could make to that effect. So maybe I don't care that I have an invalid license. I have been assuming, though, that one of the plaintiffs' objectives is to receive _valid_ licenses through in-person application at the Rowan County Clerk's office. And county clerk authority is needed to make that happen. Marty is charitable to say an assumption about Davis endeavoring to work out a reasonable accommodation is generous; others might call it naive. In any event, I'm happy to extend the same assumption to the plaintiffs as well. I don't know whether they would have accepted a proposal like the one I have proposed if somehow the judge had been able to bring the parties to see it. But I hope so. At least some people I've expressed this hope to disagree, usually with reference to a race analogy. But the particulars matter. One frustrating aspect of this episode is that the transition in marriage licensing is not remotely as complicated as desegregating schools. There are not that many moving parts and what has to happen in the world is really quite simple to accomplish without conscripting or coercing those who refuse to cooperate on grounds of conscience. Some argue that the undermining of other interests involved in a workaround is unacceptable. With respect to the particular proposal I've put on the table for how things could work in Kentucky, at least until a more systemic fix can be adopted, I'm unpersuaded that there are unacceptable harms to the interests of plaintiffs and others similarly situated. ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Marty Lederman [lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>] Sent: Saturday, September 12, 2015 10:01 AM To: Law & Religion issues for Law Academics Cc: Michael Dorf; Dellinger, Walter; Samuel Bagenstos; Howard Wasserman Subject: Re: What's happening in the Kim Davis case The licenses currently being issued don't say that the Deputy Clerk is acting "on Davis's authority," and no one in their right mind would now understand him to be doing so--as the whole world knows, he's acting in direct contradiction to her attempted, and very public, direction. Kevin generously assumes that Davis is actually endeavoring to work out a reasonable accommodation that could have avoided this public contretemps and guaranteed that these couples would receive licenses in Rowan County, consistent with her religious obligations . . . but of course that would defeat the whole point of the exercise. On Sat, Sep 12, 2015 at 9:49 AM, Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu><mailto:kwa...@richmond.edu<mailto:kwa...@richmond.edu>>> wrote: There's a sense and consistency to Davis's position that, understood together with the requirements of Kentucky law and the desire to obtain licenses from Davis's office, can guide us to some potential terms of peace that require neither surrender nor conquest. Under Kentucky law, every license must contain "an authorization statement of the county clerk issuing the license." Ky Rev. Stat. 402.100(1)(a). Davis's understanding of the way that this is implemented on the current license is through the "you are hereby authorized" language on the form, together with signifiers of which county clerk is doing the authorization. This came through in her testimony at the July 20 preliminary injunction hearing. (Available at http://mirrorofjustice.blogs.com/files/d29-2-july-20-2015-pi-hearing-transcript-miller-v.-davis.pdf). BY MR. GANNAM: Q. Miss Davis, I've handed you an exhibit, which will be Defendant's Exhibit 2. Do you recognize this document? A. I do. Q. Can you describe what it is? A. It is the old version of the marriage license that was prescribed by the KDLA for us to use for the issuance of marriage applications. Q. When you say old version, do you mean the version prior to the Supreme Court decision? A. Yes, sir. Q. So this would be the form of marriage license used by your office up until June 26 of this year? A. Yes. Q. I wanted to point out for you the very first sentence after the heading that says Marriage License, Valid Only in the Commonwealth of Kentucky. It says, To any person or religious society qualified to perform marriages per KRS 402.050, you are hereby authorized to join together in the state of matrimony, according to the laws of the Commonwealth of Kentucky. Do you see that language? A. I do. Q. And when this license says "you are authorized," who do you understand to be authorizing the people on this license to be getting married? A. That would be me, the clerk. Q. And is it your understanding that that is dictated by the law of the Commonwealth of Kentucky? A. Yes. Q. And did you prepare this form yourself? A. No. Q. Who prepared or created this form? A. The Kentucky Department of Library and Archives. Q. I want to call your attention down to the middle of the form. And just for the record, there are areas blacked out of this form that would contain the personal information of whoever these applicants are. The original forms would not contain those black boxes, correct? A. Correct. Q. So in the middle of the form, it says, We hereby certify the above information is true to the best of our knowledge. And it has spaces for, on this form, the bride and groom to sign. Directly under that, it says, Issued this June 16, 2015, and the office of Kim Davis, Rowan County, County Clerk. Do you see that language? A. I do. Q. Who puts that information on the form, your name and your title as Rowan County Clerk? A. It populates from our software. Q. Do you have any control over that? A. No. Q. So when your software in your office is used to create a marriage license, does it automatically put your name and title into every marriage license? A. It does. Q. According to your understanding, who does this license say is issuing the marriage license? A. It was issued by my office. Q. And underneath, in the next line, it says By, and there's a name here, Brian Mason, Deputy Clerk. Is that a deputy clerk in your office? A. It is. Q. Do deputy clerks have the authority to sign marriage licenses? A. They have authority to sign it, yes. Q. Whose authority are they exercising when they sign it? A. Mine. Q. Are you aware of any marriage license currently available in the Commonwealth of Kentucky in Rowan County that would not require you to authorize it? A. No. Q. And do you have the discretion to create a different kind of license that would not require your authorization for it to be issued? A. No. MR. GANNAM: Your Honor, I move to admit Defendant's Exhibit 2 into evidence. THE COURT: Any objection? MR. SHARP: No objection. T HE COURT: Let it be received without objection. MR. GANNAM: May I approach again, Your Honor? THE COURT: You may. BY MR. GANNAM: Q. Miss Davis, I've shown you a document that's been marked as Defendant's Exhibit 3. Are you familiar with this document? A. I am. Q. What is this document? A. It is the marriage license that KDLA has prescribed that we use after the Supreme Court decision on June 26th. Q. And I want to draw your attention to the language at the beginning, To any person or religious society qualified to perform marriages per KRS 402.050, you are hereby authorized to join together in the state of matrimony, according to the laws of the Commonwealth of Kentucky -- I'll stop right there. Is this language the same as was on the prior form marriage license? A. Yes. Q. And under this new version of the marriage license who, do you understand, is authorizing the people named in the license to be getting married? A. That would be me, the clerk. Q. In moving down to the middle section of the form, after where the party information would be filled in, it says, We hereby certify the above information is true to the best of our knowledge, and then there are lines for signatures of first party and second party, correct? A. Yes. Q. Now, on the prior form, that said bride and groom, correct? A. That is correct. Q. Now, below that it says issued this -- there's a blank for the date, and the office of. There's a space for a name and then a county. When this form is used in your office, what would go in that space for name and county? A. That would be my name, Rowan County. Q. And is it your understanding that this signifies that the office would be -- the license would be issued under your authority? A. Yes. Q. Moving down to the part that reads Marriage Certificate, the third line down, it says -- I'm sorry, let me just read that whole section under Marriage Certificate. It says, I do certify that blank and blank were united in marriage on the -- there's a space for a date and location -- under the authority of the above license and in the presence of, please print witnesses' names. Do you see that language? A. I do. Q. What is your understanding to be the authority of the above license that it's referring to? A. That would be me. Q. And since the change in the form following the Obergefell decision, are you aware of any option in Rowan County to issue a marriage license form that's not issued under your authority? A. No. Q. Are you aware of any option for a marriage license form that would not show your name on it? A. No. Q. Apart from the sort of aesthetic differences in this form and the prior form marked as Exhibit 2 and the change in designation of parties from bride and groom to first party and second party, is there any substantive difference between the old form and the new form? A. No. MR. GANNAM: Your Honor, I move to admit Defendant's Exhibit 3 into evidence. THE COURT: Any objection? MR. SHARP: No objection, Your Honor. THE COURT: Let it be received without objection. Judge Bunning specifically asked Davis if she just objected to her name being on the license. Davis's answer was that a license issued by a deputy clerk without her name would still be a problem as long as the license is issued under her authority as county clerk: THE COURT: All right. You just object to your name being on the license? THE WITNESS: My name and my county, yeah. THE COURT: Well, your county, you're elected by the county. But if it said Rowan County and listed a deputy clerk -- let's say the deputy clerk that would be permitted to, or has agreed that he or she would not be religiously opposed to issuing the license, if it just was the deputy clerk's name with Rowan County and not your name, would you object to that? THE WITNESS: It is still my authority as county clerk that issues it through my deputy. THE COURT: All right. Very well. You may step down. Thank you. Marty says that Davis's understanding of the form and the way in which it is issued under authority is "nonsense." I disagree. If you look at the forms, the statute, and her testimony together, the understanding set forth in her testimony about the authority behind licenses issued out of her office makes good sense. Marty suggests an easy way "for Mason to call Davis's bluff." But under which county clerk's authority would a license in the form proposed by Marty be issued under? The answer would seem to be either (1) under the Rowan County Clerk's authority (and therefore an unacceptable accommodation under the criteria Davis has consistently held), or (2) under no county clerk's authority (and therefore statutorily invalid -- though the downstream effects of that invalidity may end up being small). In this vein, though, it is worth pressing harder and figuring out whether it is possible to have a form issued by Mason in Rowan County that is not authorized by Davis. For as long as the form remains unmodified, another constraint is that such a license would have to be on the current form. I have come to think that Davis was insufficiently imaginative in figuring out a way for a license to be issued out of her office without her authorization. After all, her office figured out a way to leave her name off of it even though the software automatically populates it. What else might Davis have been missing when she testified she was unaware of "any option in Rowan County to issue a marriage license form that's not issued under [her] authority." As I've argued elsewhere (http://mirrorofjustice.blogs.com/mirrorofjustice/2015/09/solving-miller-v-davis-licenses-in-rowan-county-explicitly-authorized-by-a-different-county-clerk-.html) and in a previous message, a simple workaround may exist that does not require modification of the form, that does not require Davis's authorization, and that is available from Davis's office. Given the need for county clerk authority, a deputy clerk could simply obtain another county clerk's authorization and note that on the form. Without any changes to the form, the deputy clerk could then simply add in "by the clerk of ____ County" and otherwise fill out the rest of the form without mentioning Rowan County other than in noting his or her office. Davis has previously stated that such an approach would not substantially burden her exercise of religion. Her PI opposition says that "Davis is ... not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (e.g., a deputy clerk), so long as that license is not issued under her name or on her authority." Kevin
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