I finally looked at the court’s orders, provoked in part by someone asking
whether today’s marriage license is in compliance. The answer is that it is
hard to tell, but I think she is in compliance. It is hard to tell because none
of his orders have made the slightest effort to comply with Federal Rule 65.
This is not just a Remedies teacher’s technicality. Defendants can go to jail
for violating such an order, so it is important to state precisely what
defendants are supposed to do or not do. Plaintiffs and judges are often sloppy
about this, and they get away with it until a dispute arises or a defendant
becomes recalcitrant.
Rule 65(d)(1) provides: “Ever order granting an injunction and every
restraining order must (A) state the reasons why it issued; (B) state its terms
specifically; and (C) describe in reasonable detail – and not by referring to
the complaint or other documents – the act or acts restrained or required.”
(emphasis added). All emphasis below is by the judge.
So here are the orders. August 12: “IT IS ORDERED that Plaintiffs’ Motion for
Preliminary Injunction (Doc. # 2) against Defendant Kim Davis, in her official
capacity as Rowan County Clerk, is hereby granted. IT IS FURTHER ORDERED that
Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby
preliminarily enjoined from applying her “no marriage licenses” policy to
future marriage license requests submitted by Plaintiffs.”
This is appended to a 28-page opinion, which states the reasons for the
injunction’s issuance. But what does it order? The first sentence is
meaningless without looking to the motion, which we are not supposed to do. And
when we do look to the motion, we get no help: “Pursuant to Fed. R. Civ. P.
65(a), the Named Plaintiffs move for a preliminary injunction enjoining
Defendant Davis, in her official capacity, from enforcing the challenged policy
of refusing to issue marriage licenses against them.” There is an accompanying
memorandum of law, which presumably describes “the challenged policy.”
What the second sentence prohibits depends on Davis’s “policy,” which is not
set out in the injunction. Davis has no written policy; any “policy” emerges
only from her acts and her various and sometimes inconsistent statements. If
you look to Bunning’s Memorandum Opinion (which we aren’t supposed to do), it
appears that by no marriage licenses policy, he means a policy of not issuing
marriage licenses to anyone, gay or straight.
Plaintiffs had given him a proposed order, which was better (though it still
improperly incorporated the motion), but he didn’t use it. The proposed order
would have enjoined Davis from “enforcing the policy of refusing to issue
marriage licenses to any future marriage license applications submitted by the
named Plaintiffs.” Judge Bunning never said that.
September 3: “Motion having been made, and the Court being sufficiently
advised, IT IS HEREBY ORDERED: Plaintiff’s Motion Pursuant to Rule 62(c) to
Clarify the Preliminary Injunction Pending Appeal is GRANTED. IT IS FURTHER
ORDERED: The Court’s August 12, 2015 preliminary injunction order, RE #43, is
hereby modified to state that Defendant Kim Davis, in her official capacity as
Rowan County Clerk, is hereby preliminarily enjoined from applying her “no
marriage licenses” policy to future marriage license requests submitted by
Plaintiffs or by other individuals who are legally eligible to marry in
Kentucky.”
The first sentence is again meaningless without looking to the motion. The
second sentence still prohibits an undescribed policy. There is no statement of
the reasons for this order. We speculated that maybe the extension to
non-parties is based on a finding of probable success on the motion for class
certification, but there is no such finding. Plaintiff’s Motion to Clarify
makes no argument about his authority to protect persons who are not
plaintiffs; and again, we are not supposed to look there.
Also on September 3: After a recital that Rowan County “is fulfilling its
obligation to issue marriage licenses to all legally eligible couples,
consistent with the U.S. Supreme Court’s holding in Obergefell and this Court’s
August 12, 2015 Order,” he says: “Accordingly, IT IS ORDERED as follows: 1.
Defendant Davis shall be released from the custody of the U.S. Marshal
forthwith. Defendant Davis shall not interfere in any way, directly or
indirectly, with the efforts of her deputy clerks to issue marriage licenses to
all legally eligible couples. If Defendant Davis should interfere in any way
with their issuance, that will be considered a violation of this Order and
appropriate sanctions will be considered. 2. CJA counsel for the five (5)
deputy clerks who indicated they would comply with the Court’s Order shall file
a Status Report every fourteen (14) days from the date of entry of this Order
unless otherwise excused by the Court. Within those reports Counsel shall
report on their clients’ respective compliance with the Court’s August 12, 2015
Order enjoining the Rowan County Clerk from enforcing her “no marriage
licenses” policy, as well as its Order of September 3, 2015 requiring them to
issue marriage licenses to all eligible couples in compliance with the Court’s
prior order. ”
The other September 3 order did not actually say “issue marriage license to all
eligible couples,” and the prior order certainly didn’t say that. They both
were both written in terms of the undefined no marriage licenses policy. Nor
were those orders directed to the deputies, but he’s OK on that. The deputies
were bound under Rule 65(d)(2), which makes the injunction binding on the
parties and their “officers, agents, servants, employees, and attorneys,” and
any persons in active concert with any of them. Query whether the deputies knew
that.
So this order about reporting obligations indicates that he thinks he has
ordered them to issue licenses. So does the recital about why she is being
released. But still, no unambiguous order to issue licenses.
She could probably have all these orders vacated for failure to comply with
Rule 65. But while they remain in effect, what do they prohibit? At most they
prohibit a policy of not issuing marriage licenses, and they prohibit
interfering with deputies who do issue marriage licenses. There is no order
about the form of the licenses. There is no order not to alter, amend, fold,
spindle, or mutilate the licenses. He may eventually issue such an order. But
until he does, I think she can write whatever she wants as long as she doesn’t
cross out the sentence that authorizes clergy and judges to perform the wedding.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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