Saturday, September 5, 2015

The Judge, the Clerk, The Governor and the General Assembly: How to Understand the Incarceration of Kim Davis on Charges of Contempt

Recent developments in Kentucky have captured the attention of the Nation. Even the ominous stare down between BarryO the Boyking and a melting glacier could not displace the story from the headlines.

There have been many opinions expressed on the topic – from speaking of the martyrdom of Kim Davis to calling for the martyrdom of her – there seems to be no end of opinions on the matter. As with most things, though, many of the opinions rest on a shaky foundation of poor, or no, understanding of important underlying principles of law.

A local jail in Kentucky picked up a new detainee yesterday. Mind you, virtually every county jail in America likely picked up a new detainee or two. But this detainee is a breed apart: not a drunk driver pulled from the mangled wreck of her auto, nor a post-partum-depressed mother that just drowned her baby in the bathtub, not even the local chemist operating a meth lab from his basement workshop. No, this new occupant, Kim Davis, is an elected official, the County Clerk for Rowan County.

Unlike the drunk driver, the homicidal mad-momma, or the meth-matician, Ms. Davis has not been sentenced to a term of years in jail or prison. Indeed, unlike those criminals, Ms. Davis has not been tried by a jury consisting of her peers and found guilty of any crime whatever. Instead, Ms. Davis has been ordered confined indefinitely in jail by a United States District Court Judge, David Bunning.

Davis, a Democrat, ran for, and was elected to, office in Kentucky. Judge Bunning, on the contrary, was appointed to the federal bench by George W. Bush, a Republican. Judge Bunning’s name may ring familiar to some of you. His father, Jim Bunning, served as a US Senator from Kentucky for a couple terms after having served six terms as a member of the House of Representatives from Kentucky. Of course, David Bunning may not have been chosen as a favor by a stalwart Republican president. (I’m sure that all Presidents from both parties only pick the best available candidate and never use their appointment powers to cement relationships or repay favors. Wink Wink Nod Nod.)

So, here we have had a federal judge handling a federal lawsuit over the refusal of a State Court Clerk to issue State marriage licenses.

Now, ordinarily, a clerk refusing to perform a duty of office could be subjected to a suit in state court. There is an old English lawsuit, something called a Petition for Writ of Mandamus. That suit can be filed by affected persons asking a state court judge with the appropriate level of authority to order the clerk to do their duty.

But here we are talking about a same sex couple that tried to get a marriage license. Having been frustrated in that effort, rather than seek an equally valid license from the clerk of another county, and rather than filing a petition for a writ of mandamus with a Kentucky court, the couple, represented by the Kentucky chapter of the American Civil Liberties Union, sued in federal court.

Now please, don’t misunderstand me. I am not suggesting that it was improper at all for such a lawsuit to be filed in federal court. Congress endowed federal trial courts with jurisdiction to hear and decide lawsuits involving claimed violations of federal civil rights. Congress also created a statute-based cause of action for the violation of federal civil rights. Abraham Lincoln addressed the duty of courts to decide cases, in his First Inaugural Address. He said, “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.”

So, no, I’m not criticizing Judge Bunning from acting as Judge in the case.

Prior to becoming a disgraced former Senior Counsel for the American Center for Law and Justice, that organization described me (I had nothing to do with how they chose to describe me) as one of the Nation’s leading religious liberties advocates. I have filed many federal civil rights actions as an attorney, representing street preachers, anti-abortion protestors, students treated unequally based on the religious content of their speech. For injured clients, whose recognized constitutional rights had been denied, I have asked federal judges to issue orders stopping government officials from interfering with my clients’ rights. I have asked judges to award damages to my clients for the loss of those rights. So, on the level of general principles I cannot be understood in this post to be claiming that filing the lawsuit in federal court was wrong. I have also represented clients in cases where others tried to stretch federal civil rights laws beyond their design and intention, in order to accomplish a plainly political objective.

That the Judge Bunning had legal authority (what lawyers call “jurisdiction”) granted to his court by Congress is not subject to dispute. That the same sex couples – like other citizens of the United States – are entitled to assert and to prove if they can that their federal civil rights have been violated, is not subject to dispute.

For my purposes today, the questions in dispute are whether Kim Davis should have been fired for refusing to issue marriage licenses and whether she should be incarcerated for contempt of court.

Kim Davis ran for office. The People of Rowan County elected her clerk.

That was an act of popular democracy. Kim Davis, a Democrat, being elected by the People of Rowan County is a matter of some moment. Because under Kentucky law, the Governor cannot simply call her office and tell her she’s fired. Well, he certainly could. But that statement would be followed by a chortle, and perhaps a question, such as, “Been hitting the Makers’ Mark, Governor?” No, the Governor cannot fire her.

The Kentucky Supreme Court cannot fire the Clerk. The Courts of Kentucky are quite jealous of their distinct constitutional stature. They do not brook even the making of rules of court by the legislature – that rule-making is quite common in other States and at the federal level. But, as the Kentucky Courts are quite sensitive to questions of their separate sphere of power and authority, it is well-known to them that they possess no power to discharge from office an elected clerk.

In fact, what the Commonwealth of Kentucky faces with a clerk that is refusing to perform duties of her office is the exact conundrum the American people face with a president that refuses to perform the duties of his office. Because, you see, whether she sits in jail for the balance of her elected term of office or not, the only way that Davis can be removed from office is by impeachment by the Kentucky General Assembly. That is it. She cannot be fired. Stop assuming that she can be. Stop insisting that she be.

Now, as to the question of whether Ms. Davis should be incarcerated for contempt of court, I think Judge Bunning went way overboard in jailing Davis.

I can prove that he did.

I have represented persons charged with contempt. I have read the federal law on contempt and researched the cases and made written interpretations and analysis of it. But I do not need to engage in a fine legal analysis to show why Judge Bunning’s contempt confinement order is a Bridge Too Far. You see, the same sex couples and their ACLU attorneys prove that the Judge went too far. Here is what the couples stated in their petition to hold Davis in contempt:
Plaintiffs do not seek to compel Davis’ compliance through incarceration. Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform, Plaintiffs urge the the Court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.
You see it, right? “Plaintiffs do not seek to compel Davis’ compliance through incarceration.”

Rather than confinement, the Plaintiffs “urge[d] the ... Court to impose financial penalties[.]”

Question resolved.

The judge, Judge David Bunning, a Republican appointed by George W. Bush has ordered a Democrat, Kim Davis, the elected clerk of Rowan County to be incarcerated. Why? Not because it was asked of him by the Plaintiffs.

We have not heard the end of this matter. The Kentucky General Assembly is highly unlikely to impeach Davis. In fact, if the Assembly does anything, what it is likely to do is change the marriage licensing statute to protect the rights of conscience of county clerks. In the meantime, if Kim Davis does not change her mind, then it will be up to the unjust judge to relent and to release her from confinement.

In fact, as a matter of federal law, Judge Bunning should release Davis because his decision to confine Davis may have violated her rights under the federal Religious Freedom Restoration Act. That’s right. Judge Bunning may well have violated federal law by imposing incarceration as the method of coercing Kim Davis to submit to his will in this matter.

Many readers will recall the teapot tempest earlier this year – it seems ages ago given how the legal landscape shifted in June – when an Indiana pizzeria stirred up a kerfluffle by announcing that it would not agree, if asked, to cater a wedding reception for a same sex couple. Memories Pizza actually closed its doors because of the hostile reaction of some members of the public. Remember that? Back then, one of the hotly disputed issues was the scope of Indiana’s Religious Freedom Restoration Act. Many voices cried out about the injustice of protecting religious freedom if it meant denying two gay men the right to have pizza served at their wedding reception.

For my part, I suspected that ordering pizza for a wedding reception would constitute proof positive that a couple was only faking gay.

In any event, the disputed statute is one modeled on the federal Religious Freedom Restoration Act. That law applies to every federal official and every federal action. So when Judge Bunning put Kim Davis in jail, he should first have determined whether she had a sincerely held religious belief regarding same sex marriage, then decided whether jailing her to compel her compliance with an order that violated her religious scruple constituted a substantial burden on those religious beliefs, and then, finally, if they did, he should have made sure that his acts constituted the least restrictive means to accomplish those purposes.

Where the other side argues that a person should be fined, not jailed, and the judge jails the person, I think the case is easily made that the judge did not employ the least restrictive means to serve the interest in compelling compliance with the court’s order.

So now, like Alice’s tumble into a strange hole, things get curiouser and curiouser, as the clerk defies the judge that defies the law. Judge Bunning was advised that the federal RFRA statute impacted what he did. I read the papers filed by Davis’ attorneys. They cited a federal appeals court decision that threw out 19 contempt citations because the decisions to impose them violated RFRA.

This matter will continue to develop. Perhaps, at some point, Judge Bunning will be brought to task for disobeying federal law. Meanwhile, stop talking about how Davis should be fired. She can’t be fired. Instead, enjoy the show, and the many folks discomfitted by the possibility that every step they take is fraught with opportunities to err.