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.
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I’m sure this is not about the money, No doubt the same sex couples were prefer to see her flogged and imprisoned for life, but their only recourse is money. What an unjust society, off to Chik-Fil-A for a bite to eat.
Can’t issue what requires a signature and no court can order a person, any person, anywhere to place signature upon paper they find offensive . . .
The real guilty party in all of this is the crazy U.S. Supreme Court who made an irrational decision in Obergefell. Their decision was worse than the 7-2 Dred Scott decision in 1857 that was overturned through civil war and the 13th Amendment. The foolish citizens who extend the U.S. Supreme Court’s decision to apply to all of the States such as Alabama are further complicit in this egregious action by the U.S. Supreme Court. We need to remember the words of Abraham Lincoln in his first inaugural address, when faced with the bad law established by the Supreme Court in the Dred Scott decision, said:
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I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.
Abraham Lincoln, 1861
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I only wish lawyers and judges today understood and practiced Lincoln’s conservative tendencies. Unfortunately, most cannot escape the idea that the States are to be ruled by tyrants in the federal government. Twice now the people of Alabama elected Roy Moore to the office of Chief Justice of the Supreme Court of Alabama only to have ethics judges remove the Chief Justice for not obeying federal orders which he considered unlawful. Their inept legal minds cannot comprehend the principles of lawmaking. They have no concept of conscience as a legal guide, or of the necessity of keeping one’s oath of office in the face of tyrannical decrees. Their concept of the Constitution is that it cannot be understood by the people, but rather it is a document whose meaning changes with the whims of unelected activist judges. They only understand hierarchy and the clear orders of dictators and tyrants.
Kim Davis had an inkling of understanding of her duty to the people of Alabama. She attempted to follow the steps of Abraham Lincoln when he warned that following decisions like Obergefell would lead to a government where “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Unfortunately, there are not enough wise and noble people left in our country to speak up and support her in her stand for liberty and freedom. The few that would stand together are expelled from their offices of service and cast by the wayside as America forges a new path, not based upon the Constitution, but based upon tyranny and political corruption.
There is a slim glimmer of hope for America if Donald Trump is voted into office on Tuesday, but I am skeptical whether even a non-politician like Donald Trump can fix all that has been destroyed in America.
Justice Taney did not support slavery, in fact he defended Abolitionists Pro Bono at times, what he said correctly was that the founding fathers considered Slaves as chattel and it would require an Amendment to the Constitution to change that which is exactly what happened. Dred Scott was a contrived case which set the stage for the showdown, Taney was not the force of Evil he was made out to be.
Kurt J: “Justice Taney did not support slavery, in fact he defended Abolitionists Pro Bono at times, what he said correctly was that the founding fathers considered Slaves as chattel and it would require an Amendment to the Constitution to change that which is exactly what happened. . . .”
You’ve made an interesting argument here. You say that Taney did not support slavery, and indeed he emancipated his own slaves in Maryland, a slave state.
On the other hand, Taney’s opinion resolving the Dred Scott matter was apparently the first time in our legal history that substantive due process – radical substantive due process – was ever the basis of a Supreme Court opinion. In it, he declared that slaves were property and government could not take a property right away without due process of law. When you write that “Taney was not the force of Evil he was made out to be,” you may want to revisit your statement.
Further, there’s the paradox: If you believe Taney’s use of substantive due process was proper, then Griswold v. Connecticut (1965), Justice Douglas’s expose on the right to privacy based on a penumbra of rights emanating from several of the first ten Amendments (setting up Roe v. Wade) was also proper. Wouldn’t you agree?
I think they could probably establish an actionable municipal policy given her position which permitted her to make policy as to some matters. Overall, the amount of fees does not seem all that high for the initial application considering the underlying proceedings.
Re the fees, I hadn’t considered any interim litigation, so you may be right.
I think the first hurdle, whether or not the Clerk harmed them when the plaintiffs ultimately received their licenses, isn’t much of one. The harm, including humiliation, was done when she denied the licenses.
I can’t imagine the total fees requested are going to be awarded. I think they’re outrageous unless there’s some law allowing multiple times the damages to include fees and costs.
She’s a county employee in the sense that they pay her, but she’s also not, in that she can’t be fired from her elective office. If the county could have fired her for nonperformance, they probably would have long ago. She’s at least as responsible for this situation as the voters who elected her. And you can’t sue voters, since they can’t be identified. Taxpayers can’t be used as a proxy for voters, so she’s the only realistic target/cause in this fiasco.
https://twitter.com/WDFx2EU7/status/794554892102733824
One cannot sue a state for damages in a civil rights suit because they have sovereign immunity. Municipalities can be sued. Counties are between a rock and a hard place. There is no evidence of county policy being the source of the refusal of a marriage license to the two dorks.
Why have marriage licenses to begin with. It is kind of like a drivers license. Those who are unfit cannot drive.
Kim Davis lost on the merits of the litigation brought by the same-sex couples. The case was litigated in Federal District Court that ordered her to issue the marriage licenses. When she refused to obey the court order, she requested a stay from the 6th Circuit Court of Appeals, which refused to grant a stay on the grounds that she would most likely lose on appeal. The Supreme Court then refused to intervene to grant a stay of the existing court order. When she continued to obey the order she was cited for contempt of court and jailed until she could purge herself of that contempt.
After two weeks in jail, she was released on a promise not to interfere with her deputy clerks in issuing the marriage licenses in question. Only after that did a newly-elected Kentucky governor formalize the arrangement by validating the issued licenses and permitting marriage licenses to be issued without stating the name of the county clerk.
Apparently, there is a separate question as to whether the county is liable for the damages caused by her contempt. Maybe she can crowd fund a bailout.
Thank you for this summary. Well done.
hinkydinkkenna – what you leave out is the order by the Chief Justice of the Alabama Supreme Court ordering clerks not to issue same sex marriage licenses because it violated the laws of the State of Alabama.
Kim Davis is a county clerk in Kentucky, not Alabama. The Chief Justice of Alabama, Roy Moore, subsequently was suspended from the Alabama Supreme Court for issuing that order.
“What is clear that is the curious case of Kim Davis may yet create even more legal precedent”
~+~
This exemplifies an argument I made for years. Government agents and agencies make poorly advised legal actions and as a result of fighting the matter in the courts, it results in a precedent that is very unfavorable for the agency and everyone else in the state.
The county should just pony up the demanded fees and make this issue go away. But, in typical fashion they will never admit they are wrong and the end result is worse for them. But after all that, they still will not recognize their complicity.
Someone spent too much money on depositions.
Where, in the Constitution, does it say the Government should be involved in anyone’s marriage? It’s all about Control, Money and Tracking our Every move. Why should the Government be in the business of selling licenses to marry? The Government regulates every aspect of our lives. Our money sustains their existence. What we are doing is Buying Back Rights they’ve taken from us. Get out of our lives.
$233,058?
The legal profession is a disgrace to the human race.
That’s $58,265 per couple. The fees do seem excessive for Kentucky.