Further strangeness in the Kim Davis case

Marty Lederman

Attorneys for Rowan County Clerk Kim Davis today filed an "Emergency Motion for Immediate Consideration and Motion for Injunction Pending Appeal" to the U.S. Court of Appeals for the Sixth Circuit.  This particular motion does not ask the appellate court to stay or reverse the contempt sanctions imposed upon Davis by District Judge Bunning, which I discussed in my post yesterday.  Instead, it asks the court to issue an injunction against the Kentucky Governor that would require him to permit Davis's office to issue marriage licenses that do not include her name.

This motion is ostensibly premised on the fact that, in the federal lawsuit brought against her by four couples seeking marriage licenses, Davis filed what is styled as a "third-party complaint" against Governor Beshear, in which she alleged that the Kentucky Religious Freedom Restoration Act gives her the right not to issue marriage licenses.  In that complaint, she sought "a preliminary and permanent injunction" against the Governor, "prohibiting enforcement of Kentucky’s marriage policies"; and in an accompanying motion she sought an injunction that would exempt her “from having to authorize the issuance of Kentucky marriage licenses.”

I don't have time just now to offer a thorough analysis of Davis's emergency motion.  I would simply note, for the time being, that the request is a very odd one, and almost certain to be rejected, for several reasons, including, most importantly, that it's very difficult to reconcile with what is currently happening in Davis's office:

1.  First, the Governor has not even responded yet to the third-party complaint.  His papers are due to be filed this Friday.  [UPDATE:  He has now moved to dismiss the appeal on the ground that the district court hasn't yet even denied the injunction Davis seeks and therefore there's nothing from which to appeal.]

2.  Second, it's doubtful that a federal court has jurisdiction to resolve Davis's state-law RFRA claim against the Governor -- she should have brought it in state court.  [UPDATE:  It's not clear that the Kentucky RFRA claim against a third-party would support "supplemental jurisdiction" under 28 U.S.C. 1367(a).  And even if it did, the district court could decline such jurisdiction under 1367(c) because "the claim raises a novel or complex issue of State law."  In any event, even if the court were inclined to hear the Kentucky RFRA case, presumably it would be barred by the doctrine of sovereign immunity, see Raygor v. Regents, 534 U.S. at 531-32.]

3.  Third, Davis doesn't have much of a case on the merits of her RFRA claim, because her allegation of a substantial burden on her religious exercise is premised on the notion that the Governor (and/or Kentucky law) has required her to "approve" or "authorize" licenses that are issued by her office--a premise that, as I explained yesterday, is predicated on mistakes of fact and law.

4.  Even apart from RFRA, however, the Governor probably could, consistent with Kentucky law, "permit" the Rowan County Clerk's Office to issue licenses without Davis's name.  But Davis has not asked him to do any such thing.  In her new pleading, her lawyers write that "Gov. Beshear has flatly rejected Davis’ request for religious exemption.  In his view, Davis must either comply with his SSM Mandate, or resign from office."  But she has never--until now--asked him specifically for authorization to delete her name from the forms; instead, she simply sought an injunction that would exempt her “from having to authorize the issuance of Kentucky marriage licenses.”  And in her letter to the Governor of July 8, 2015 (see final page of this pdf), she stated that "[i]t appears the only timely and reasonable solution is a legislative one."  Accordingly, the Governor has had no occasion to consider any so-called request to be able to omit Davis's name from the licenses issued in Rowan County, and thus he has not "rejected" such a request, flatly or otherwise.  Perhaps Davis should ask him directly.

5.  Davis's motion is premised on the assertion that "as it stands now, and through no fault of her own, no marriage license can be issued from the Rowan County clerk’s office without Davis’ authorization and without her name and imprimatur on the license."  She offers no authority for this proposition, and I argued yesterday that it is likely mistaken.  Davis insinuates that the Governor has prohibited the issuance of licenses without her name, but as far as I know he has not done so.

6.  Finally, and most strikingly, her motion does not so much as mention the fairly important fact that her Deputy Clerk yesterday began issuing licenses that do not include Davis's name.  There is no indication that Deputy Clerk Mason was acting ultra vires when he did so, or contrary to a gubernatorial directive.  Therefore, Davis's requested emergency relief is unnecessary because she is already receiving the "relief" that she says she is entitled to.

You Can't Always Get What You Want . . . but if you try sometime (and aren't so intent in posturing yourself as a beleaguered martyr), well you just might find . . . you've had what you need.
Posted 6:08 PM by Marty Lederman [link]