Four same sex couples are seeking more than $233,058 in legal costs from Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples in Rowan County last year. The demand raises some interesting questions over the right to recover fees and costs in such a case.
First and foremost, the plaintiffs must as a general matter show that they prevailed in their legal claims. The couples were ultimately given marriage certificates. However, Davis did not technically lose on the merits. Rather, they succeeded after Kentucky’s Republican governor changed state law to eliminate the need of clerks authorizing licenses.
Second, there is uncertainty over the status of Davis in terms of who would have to pay for such fees and costs. Rowan County is refusing to pay the costs on the grounds that Davis was acting on her own behalf. Jeffrey C. Mando, an attorney for Rowan County argues “County clerks are not employees of the county, but instead are the holders of elective office pursuant to the Kentucky Constitution.” I suppose the question is whether clerks are a state or county official. On the face of its web site, the clerk appears to identify as a county official — the most natural interpretation of the position. Davis tells citizens that “As county clerk I am responsible for providing many services to the people of Rowan county.” Of course, a state official can supply services to a county. However, her title is “Kim Davis Rowan County Clerk.” This matter could be further addressed by determining the source of her salary — county or state. However, I would assume that most courts would view the county as responsible for fees and costs. The county could always try to bring in the state in the action or seek compensation for such damages in a separate action.
The most promising claim is the first one: whether a change in the law warrants fees and costs.
What is clear that is the curious case of Kim Davis may yet create even more legal precedent.