Kim Davis announcement about what she'll do at work today

[Marty Lederman]

She stated that she has ordered that the licenses issued by the Deputies
will not include her name *or title or "authority" *[not clear what that
means, since the form doesn't mention her "authority" in the first place],
and that the licenses will bear the notation "Issued pursuant to a federal
court order."

http://wishtv.com/2015/09/14/kentucky-clerk-jailed-over-gay-marriage-to-return-to-work-today/

On Sat, Sep 12, 2015 at 5:56 AM, Marty Lederman 
wrote:

> Davis has now filed a couple of briefs in the Sixth Circuit, and attached
> the transcript of the contempt hearing to one of them . . . so now it's
> possible to figure out where things are heading, at least to a certain
> extent.
>
> *1.*  *Judge Bunning construes his P.I. to cover the Deputy Clerks*
>
> The judge is of the view that the P.I. enjoins the Rowan County Deputy
> Clerks, as well, under FRCP 65(d)(2)(B), because they are Davis's
> "employees," are on notice of the injunction against her in her official
> capacity, and (as I described in my first post) are themselves authorized
> by Kentucky law to issue marriage licenses.  Judge Bunning therefore
> threatened to hold the Deputies in contempt, too, if they continued to
> refuse to issue licenses.  That's why Deputy Clerk Mason is now issuing the
> licenses--although he also asserted that he was willing to do so earlier,
> and would have issued them prior to the P.I. but for Davis's direction to
> him not to do so.
>
> *2.*  *Davis is moving to overturn Judge Bunning's expansion of his
> injunction to cover nonparties.  *
>
> She claims that Bunning should not have expanded the P.I. beyond the four
> named plaintiff couples, and is asking the Sixth Circuit to reverse that
> expansion.  I'm not sure about the procedural questions, but she actually
> might have a point on the merits.  It turns out that the judge did *not *(as
> I hypothesized earlier) expand the P.I. in anticipation of granting class
> certification.  That was the rationale offered by the plaintiffs for why he
> should do so, but it's not the reason Judge Bunning gave for expanding the
> scope of the P.I.  Instead, his rationale for expanding it was that he has
> before him two companion cases, Nos. 15-46 and 15-62, each involving one
> other plaintiff couple (David Ermold/David Moore, and James Yates/Will
> Smith, respectively), "that involve, in essence, the very same allegations
> with the same lawyers."  "[I]t just makes judicial sense," he said at the
> hearing, "to have the Circuit review the decision for all three of [the
> cases].  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."
>
> If that's his reason for expanding the P.I., however, it's not clear to me
> why he wasn't required to limit the expansion to the two couples who had
> filed lawsuits in the companion cases or, at most, to all couples who have
> filed or do file such cases.  He doesn't really offer a justification for
> having expanded the P.I. to cover couples who appear at the Rowan County
> Clerk's Office but who do *not *file a suit.  (Perhaps he assumes that
> any couple turned away by David *would *promptly file a suit; but I doubt
> that's a valid assumption.)
>
> Accordingly, I think there's at least some chance that the court of
> appeals will limit the P.I. to the named parties.  Five of the six
> plaintiff couples (including both of those in the companion cases) have
> already obtained licenses on which Davis's name does not appear.
>  (Only Shantel Burke and Stephen Napier have not yet done so.)  Therefore,
> a reduced P.I. would cover only one remaining couple (Burke/Napier), at
> least until such time as Bunning certifies a class in one or more cases
> before him.
>
> *3.*  *Davis wishes to instruct the Deputy Clerks not to issue licenses
> to nonplaintiff couples*
>
> There appears to be little doubt that if the court of appeals limits the
> P.I. to the named plaintiffs--and perhaps even if it does not--Davis will
> instruct her Deputies not to issue licenses to any couples other than
> (perhaps) Burke and Napier, *even if those licenses do not include her
> name*.  And the Deputies will likely obey such an order if the P.I. is
> cut back, because they are of the view that but for the injunction they'd
> be subject to Davis's direction and control.  If the injunction remains in
> its present form, and Davis directs the Deputies not to issue licenses, I
> imagine at least one of them (Mason) will ignore her order, in order to
> avoid being held in contempt.
>
> *4.*  *Davis continues to argue that she is legally entitled to issue
> such an order to the Deputy Clerks by virtue of Kentucky's RFRA, even if
> the licenses would not bear her name*
>
> As Eugene prophesied, Davis has, indeed, changed her theory of religious
> obligation to fit the 

Re: Kim Davis announcement about what she'll do at work today

[Marty Lederman]

summarizing:

http://balkin.blogspot.com/2015/09/kim-davis-developments.html

On Mon, Sep 14, 2015 at 8:45 AM, Marty Lederman 
wrote:

> She stated that she has ordered that the licenses issued by the Deputies
> will not include her name *or title or "authority" *[not clear what that
> means, since the form doesn't mention her "authority" in the first place],
> and that the licenses will bear the notation "Issued pursuant to a federal
> court order."
>
>
> http://wishtv.com/2015/09/14/kentucky-clerk-jailed-over-gay-marriage-to-return-to-work-today/
>
> On Sat, Sep 12, 2015 at 5:56 AM, Marty Lederman 
> wrote:
>
>> Davis has now filed a couple of briefs in the Sixth Circuit, and attached
>> the transcript of the contempt hearing to one of them . . . so now it's
>> possible to figure out where things are heading, at least to a certain
>> extent.
>>
>> *1.*  *Judge Bunning construes his P.I. to cover the Deputy Clerks*
>>
>> The judge is of the view that the P.I. enjoins the Rowan County Deputy
>> Clerks, as well, under FRCP 65(d)(2)(B), because they are Davis's
>> "employees," are on notice of the injunction against her in her official
>> capacity, and (as I described in my first post) are themselves authorized
>> by Kentucky law to issue marriage licenses.  Judge Bunning therefore
>> threatened to hold the Deputies in contempt, too, if they continued to
>> refuse to issue licenses.  That's why Deputy Clerk Mason is now issuing the
>> licenses--although he also asserted that he was willing to do so earlier,
>> and would have issued them prior to the P.I. but for Davis's direction to
>> him not to do so.
>>
>> *2.*  *Davis is moving to overturn Judge Bunning's expansion of his
>> injunction to cover nonparties.  *
>>
>> She claims that Bunning should not have expanded the P.I. beyond the four
>> named plaintiff couples, and is asking the Sixth Circuit to reverse that
>> expansion.  I'm not sure about the procedural questions, but she actually
>> might have a point on the merits.  It turns out that the judge did *not *(as
>> I hypothesized earlier) expand the P.I. in anticipation of granting class
>> certification.  That was the rationale offered by the plaintiffs for why he
>> should do so, but it's not the reason Judge Bunning gave for expanding the
>> scope of the P.I.  Instead, his rationale for expanding it was that he has
>> before him two companion cases, Nos. 15-46 and 15-62, each involving one
>> other plaintiff couple (David Ermold/David Moore, and James Yates/Will
>> Smith, respectively), "that involve, in essence, the very same allegations
>> with the same lawyers."  "[I]t just makes judicial sense," he said at the
>> hearing, "to have the Circuit review the decision for all three of [the
>> cases].  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."
>>
>> If that's his reason for expanding the P.I., however, it's not clear to
>> me why he wasn't required to limit the expansion to the two couples who had
>> filed lawsuits in the companion cases or, at most, to all couples who have
>> filed or do file such cases.  He doesn't really offer a justification for
>> having expanded the P.I. to cover couples who appear at the Rowan County
>> Clerk's Office but who do *not *file a suit.  (Perhaps he assumes that
>> any couple turned away by David *would *promptly file a suit; but I
>> doubt that's a valid assumption.)
>>
>> Accordingly, I think there's at least some chance that the court of
>> appeals will limit the P.I. to the named parties.  Five of the six
>> plaintiff couples (including both of those in the companion cases) have
>> already obtained licenses on which Davis's name does not appear.
>>  (Only Shantel Burke and Stephen Napier have not yet done so.)  Therefore,
>> a reduced P.I. would cover only one remaining couple (Burke/Napier), at
>> least until such time as Bunning certifies a class in one or more cases
>> before him.
>>
>> *3.*  *Davis wishes to instruct the Deputy Clerks not to issue licenses
>> to nonplaintiff couples*
>>
>> There appears to be little doubt that if the court of appeals limits the
>> P.I. to the named plaintiffs--and perhaps even if it does not--Davis will
>> instruct her Deputies not to issue licenses to any couples other than
>> (perhaps) Burke and Napier, *even if those licenses do not include her
>> name*.  And the Deputies will likely obey such an order if the P.I. is
>> cut back, because they are of the view that but for the injunction they'd
>> be subject to Davis's direction and control.  If the injunction remains in
>> its present form, and Davis directs the Deputies not to issue licenses, I
>> imagine at least one of them (Mason) will ignore her order, in order to
>> avoid being held in contempt.
>>
>> *4.*  *Davis continues to argue 

Re: Kim Davis announcement about what she'll do at work today

[James Oleske]

Update:

Unlike the licenses previously issued by deputy clerk Brian Mason to
same-sex couples, which included "in the office of Rowan County," the
license he issued this morning has the words "in the office of" crossed out
and the language "Pursuant to the Federal Court Order" in the place where
ordinarily the names of the clerk and the county would be inserted (image
here: https://twitter.com/alanblinder/status/643447815641899008).

So Davis appears to have imposed her position from the deposition (that
both her name AND the name of her county must be removed from the form). As
several of us have noted on the religionlaw list, this approach raises both
establishment and equal protection questions, but the more immediate
question is whether it is consistent with Judge Bunning's non-interference
order.

- Jim



On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman 
wrote:

> summarizing:
>
> http://balkin.blogspot.com/2015/09/kim-davis-developments.html
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

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.

Re: Kim Davis announcement about what she'll do at work today

[Marty Lederman]

The license for the first couple (nonplaintiffs Carmen and Shannon
Wampler-Collins) reads:

"*Issued this 9/14/2015* [crossed out:  "in the office of , ___
(blanks for "name" and "county")"] *Pursuant to Federal Court Order No.
15-CY-44, DLB,* [crossed out:  "County Clerk"]* Morehead, Kentucky* *by*
*Brian **Mason** [signature initials] *[words "Deputy Clerk” not added]"

That is to say, it reads:  *"Issued this 9/14/2015,* *Pursuant to Federal
Court Order No. 15-CY-44, DLB,* *Morehead, Kentucky* *by* *Brian
*Mason* [**signature
initials]."  *No indication of the Office, the County, or Mason's title or
role (and no mention of Davis, of course).

This *might *suffice to make the license valid under KY law, which requires
that the license include, inter alia, "the date and place the license is
issued, and the signature of the county clerk or deputy clerk issuing the
license."  If "Morehead" suffices for "place," then these requirement are
literally satisfied, although nothing on the face of the license indicates
that it was issued by a Clerk or Deputy Clerk.


On Mon, Sep 14, 2015 at 9:32 AM, Marty Lederman 
wrote:

> summarizing:
>
> http://balkin.blogspot.com/2015/09/kim-davis-developments.html
>
> On Mon, Sep 14, 2015 at 8:45 AM, Marty Lederman 
> wrote:
>
>> She stated that she has ordered that the licenses issued by the Deputies
>> will not include her name *or title or "authority" *[not clear what that
>> means, since the form doesn't mention her "authority" in the first place],
>> and that the licenses will bear the notation "Issued pursuant to a federal
>> court order."
>>
>>
>> http://wishtv.com/2015/09/14/kentucky-clerk-jailed-over-gay-marriage-to-return-to-work-today/
>>
>> On Sat, Sep 12, 2015 at 5:56 AM, Marty Lederman > > wrote:
>>
>>> Davis has now filed a couple of briefs in the Sixth Circuit, and
>>> attached the transcript of the contempt hearing to one of them . . . so now
>>> it's possible to figure out where things are heading, at least to a certain
>>> extent.
>>>
>>> *1.*  *Judge Bunning construes his P.I. to cover the Deputy Clerks*
>>>
>>> The judge is of the view that the P.I. enjoins the Rowan County Deputy
>>> Clerks, as well, under FRCP 65(d)(2)(B), because they are Davis's
>>> "employees," are on notice of the injunction against her in her official
>>> capacity, and (as I described in my first post) are themselves authorized
>>> by Kentucky law to issue marriage licenses.  Judge Bunning therefore
>>> threatened to hold the Deputies in contempt, too, if they continued to
>>> refuse to issue licenses.  That's why Deputy Clerk Mason is now issuing the
>>> licenses--although he also asserted that he was willing to do so earlier,
>>> and would have issued them prior to the P.I. but for Davis's direction to
>>> him not to do so.
>>>
>>> *2.*  *Davis is moving to overturn Judge Bunning's expansion of his
>>> injunction to cover nonparties.  *
>>>
>>> She claims that Bunning should not have expanded the P.I. beyond the
>>> four named plaintiff couples, and is asking the Sixth Circuit to reverse
>>> that expansion.  I'm not sure about the procedural questions, but she
>>> actually might have a point on the merits.  It turns out that the judge did 
>>> *not
>>> *(as I hypothesized earlier) expand the P.I. in anticipation of
>>> granting class certification.  That was the rationale offered by the
>>> plaintiffs for why he should do so, but it's not the reason Judge Bunning
>>> gave for expanding the scope of the P.I.  Instead, his rationale for
>>> expanding it was that he has before him two companion cases, Nos. 15-46 and
>>> 15-62, each involving one other plaintiff couple (David Ermold/David Moore,
>>> and James Yates/Will Smith, respectively), "that involve, in essence, the
>>> very same allegations with the same lawyers."  "[I]t just makes judicial
>>> sense," he said at the hearing, "to have the Circuit review the decision
>>> for all three of [the cases].  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."
>>>
>>> If that's his reason for expanding the P.I., however, it's not clear to
>>> me why he wasn't required to limit the expansion to the two couples who had
>>> filed lawsuits in the companion cases or, at most, to all couples who have
>>> filed or do file such cases.  He doesn't really offer a justification for
>>> having expanded the P.I. to cover couples who appear at the Rowan County
>>> Clerk's Office but who do *not *file a suit.  (Perhaps he assumes that
>>> any couple turned away by David *would *promptly file a suit; but I
>>> doubt that's a valid assumption.)
>>>
>>> Accordingly, I think there's at least some chance that the court of
>>> appeals will limit the P.I. to the named parties.  Five of the 

Re: Kim Davis announcement about what she'll do at work today

[James Oleske]

Sorry -- "deposition" in the message below should be "preliminary
injunction hearing." - Jim

On Mon, Sep 14, 2015 at 9:14 AM, James Oleske  wrote:

> Update:
>
> Unlike the licenses previously issued by deputy clerk Brian Mason to
> same-sex couples, which included "in the office of Rowan County," the
> license he issued this morning has the words "in the office of" crossed out
> and the language "Pursuant to the Federal Court Order" in the place where
> ordinarily the names of the clerk and the county would be inserted (image
> here: https://twitter.com/alanblinder/status/643447815641899008).
>
> So Davis appears to have imposed her position from the deposition (that
> both her name AND the name of her county must be removed from the form). As
> several of us have noted on the religionlaw list, this approach raises both
> establishment and equal protection questions, but the more immediate
> question is whether it is consistent with Judge Bunning's non-interference
> order.
>
> - Jim
>
>
>
> On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman 
> wrote:
>
>> summarizing:
>>
>> http://balkin.blogspot.com/2015/09/kim-davis-developments.html
>>
>>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

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.

RE: Kim Davis announcement about what she'll do at work today

[Volokh, Eugene]

   It will make the license a collector’s item.

   Eugene

From: James Oleske [mailto:jole...@lclark.edu]
Sent: Monday, September 14, 2015 9:15 AM
To: Law & Religion issues for Law Academics
Cc: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Michael Dorf; Samuel Bagenstos
Subject: Re: Kim Davis announcement about what she'll do at work today

Update:

Unlike the licenses previously issued by deputy clerk Brian Mason to same-sex 
couples, which included "in the office of Rowan County," the license he issued 
this morning has the words "in the office of" crossed out and the language 
"Pursuant to the Federal Court Order" in the place where ordinarily the names 
of the clerk and the county would be inserted (image here: 
https://twitter.com/alanblinder/status/643447815641899008).

So Davis appears to have imposed her position from the deposition (that both 
her name AND the name of her county must be removed from the form). As several 
of us have noted on the religionlaw list, this approach raises both 
establishment and equal protection questions, but the more immediate question 
is whether it is consistent with Judge Bunning's non-interference order.

- Jim


On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
summarizing:

http://balkin.blogspot.com/2015/09/kim-davis-developments.html

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

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.