This is extremely helpful, thanks, Doug. A couple of reactions: 1. First, Davis clearly is in flat violation of the judge's order of 9/11, which stated that "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."
She is interfering, by ordering Mason to amend the license form. I doubt anyone will care enough to try to have her held in violation of the order, but she is. 2. At the contempt hearing, Judge Bunning said that as long as the plaintiffs thought the licenses were valid, he would not insist that the Deputy Clerks use any particular form. Therefore, if the plaintiffs were to now come into court and argue that the new version of the licenses raises serious questions about their validity, I suspect Bunning would craft a more specific injunction about what must be on the form. I'm very, very doubtful it will come to that, however, because, like Mae K., I can't imagine anyone ever seriously arguing that the marriages in question are invalid, even if there were a technical defect in the licenses issued in terms of what KY law requires. On Mon, Sep 14, 2015 at 2:53 PM, Doug Laycock <dlayc...@virginia.edu> wrote: > 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 > > > > _______________________________________________ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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