Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 1 of 7 - Page ID#: 1540 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY ASHLAND DIVISION APRIL MILLER, ET AL., Plaintiffs, v. KIM DAVIS, ET AL., Defendants. KIM DAVIS, Third-Party Plaintiff, v. STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky, and WAYNE ONKST, in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives, Third-Party Defendants. : : : : : : : : : : CIVIL ACTION 0:15-CV-00044-DLB DISTRICT JUDGE DAVID L. BUNNING : : : : : : : : : : : : : : : DEFENDANT/THIRD-PARTY  PLAINTIFF  KIM  DAVIS’  RESPONSE IN OPPOSITION TO  PLAINTIFFS’  MOTION  TO  HOLD  DAVIS  IN  CONTEMPT  OF  COURT Roger K. Gannam A.C. Donahue Jonathan D. Christman DONAHUE LAW GROUP, P.S.C. LIBERTY COUNSEL P.O. Box 659 P.O. Box 540774 Somerset, Kentucky 42502 Orlando, Florida 32854 Tel: (606) 677-2741 Tel: (800) 671-1776 Fax: (606) 678-2977 Fax: (407) 875-0770 ACDonahue@DonahueLawGroup.com rgannam@lc.org jchristman@lc.org Attorneys for Defendant/Third-Party Plaintiff Kim Davis Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 2 of 7 - Page ID#: 1541 Defendant/Third-Party   Plaintiff   Kim   Davis   (“Davis”),   by   and   through   her   undersigned   counsel,  respectfully  submits  this  Response  in  Opposition  to  Plaintiffs’  Motion  to Hold Davis in Contempt of Court (D.E. 67)1. Plaintiffs’  contempt motion should be denied for several reasons. First,  Davis  should  not  be  held  in  contempt  because  she  “is   presently unable to comply with   the   court’s   order”   enjoining   her   to   authorize   SSM   licenses   bearing   her   name.   See Elec. Workers  Pension  Trust  Fund  of  Local  Union  #58  v.  Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (emphasis in original); see also U.S. v. Rylander,  460  U.S.  752,  757  (1983)  (“[w]here   compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.”); Tate v. Frey,  673  F.  Supp.  880,  883  (W.D.  Ky.  1987)  (“The  court’s   power  to  impose  coercive  civil  contempt  is  limited  by  an  individual’s  ability  to  comply  with  the   court’s  coercive  order.  A  party  may  defend  against  a  contempt  by  showing  that  his  compliance is factually  impossible.”)  (internal  citation  omitted). To prove the impossibility defense to contempt, a  person  “must  show  categorically  and  in  detail  why  he  or  she  is  unable  to  comply  with  the  court’s   order.”  Elec. Workers, 340 F.3d at 379 (citation omitted). In the case at bar, Davis is unable to comply with the August   12,   2015   order   (“Injunction”)   because it irreparably and irreversibly violates her conscience by directing her to authorize and issue SSM licenses bearing her name and approval. Testimony from Davis, and multiple prior filings in this Court, which are incorporated by reference here (see D.E. 29, 34, 39-1, 45-1), provide the evidentiary support for her inability to comply with the Injunction, which is on appeal to the Sixth Circuit, docketed at Case No. 15-5880. Second, Davis should not be held in contempt because it will violate her due process rights. See Consolidation Coal Co. v. Local Union No. 1784, United Mine Workers, 514 F.2d 763, 765 1 Davis respectfully objects to the five-page limit imposed on this Opposition, see D.E. 69, because it needlessly deprives Davis of a meaningful opportunity to present argument and law on weighty issues, and because Plaintiffs, the movants, were not similarly constrained. 1 Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 3 of 7 - Page ID#: 1542 (6th Cir. 1975). As part of her defense to  Plaintiffs’  claims  against  her,  Davis  has  raised  in  this   action individual claims against the Kentucky Governor and KDLA Commissioner. See D.E. 34, 39. These rights and claims were asserted before this Court entered its Injunction on August 12, 2015, and they are necessarily intertwined with the rights and claims asserted by Plaintiffs against Davis. However, after acknowledging such rights, see D.E. 43 at 19, n. 9, this Court refused to consider them against Gov. Beshear, effectively denying preliminary injunctive relief (D.E. 58)—an order that is now also on appeal, docketed at Case No. 15-5961. Moreover, after Plaintiffs filed   their   contempt   motion,   they   also   filed   a   motion   to   purportedly   “clarify” or “modify”   the   Injunction, see D.E. 68, evidencing thereby that the terms of the Injunction are still being litigated by the parties in this Court, and at the Sixth Circuit.2 To enter contempt sanctions when this Court refused to permit Davis the opportunity to vindicate her individual rights and claims against Gov. Beshear, and while the terms and validity of the Injunction continue to be actively litigated, fails to provide the “procedural   safeguards   afforded by the due process clause” for contempt proceedings. N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 589 (6th Cir. 1987). The fact that the Injunction is directed at Davis in her official capacity does not alleviate these due process concerns. The official capacity designation requires an individual person to occupy the office. That individual (Davis) has asserted individual rights that demand procedural safeguards and an impartial hearing. That full hearing has been effectively denied by this Court, and entering contempt without that hearing will only compound that prior error. It is not as if Kim Davis the individual stops existing while Kim Davis is performing her duties as Rowan County clerk. Moreover, Plaintiffs sued Davis in her individual capacity seeking punitive damages from her personally. By suing her individually, Plaintiffs concede the relevancy of Davis in her 2 Davis intends to file a written opposition to this motion in accordance with the Local Rules. 2 Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 4 of 7 - Page ID#: 1543 individual capacity as the person occupying the office of Rowan County clerk. Not only that, Plaintiffs’  contempt  motion  was  filed  against  “Defendant  Kim  Davis”  (not  limited  to  her  official   capacity), and their proposed order requests  that   “Kim   Davis”  the  person  be  held   in   contempt.   Further, the injunctive relief Plaintiffs obtained against Davis in her official capacity (the issuance of a marriage license) necessarily implicates Davis in her individual capacity because of her personal involvement in the act of authorizing and participating in a marriage license. Lastly, Davis in her official capacity has an obligation to comply with all constitutional norms, protections, and obligations that affect individual persons—including her own individual capacity. It is thus an untenable judicial construct and fiction to claim that the individual conscience, religious, and speech protections afforded Davis are of no consequence to her official capacity conduct. Third,   Plaintiffs’   request for contempt must be denied to the extent it seeks criminal contempt sanctions  against  Davis.  Specifically,  Plaintiffs  request  this  Court  to  “impose  financial   penalties sufficiently serious and increasingly onerous”  upon  Davis.  See D.E. 67, at 7 (emphasis added).3 “[C]riminal  penalties  may  not  be  imposed  on  someone  who  has  not  been  afforded  the   protections that the Constitution requires of such criminal proceedings.” Hicks v. Feiock, 485 U.S. 624, 632 (1988). Davis has not been afforded all of the requisite constitutional protections for those facing criminal allegations and she therefore specifically demands herein and does not waive any and all rights of those accused of crimes, including but not limited to her right to a jury trial. Fourth, any contempt  order  issued  by  this  Court,  which  will  substantially  burden  Davis’   religious exercise for the same reasons she is unable to comply with the Injunction, must satisfy the strict scrutiny analysis required by the federal Religious Freedom Restoration Act, 42 U.S.C. 3 Plaintiffs   also   erroneously   state   that   “Defendant   Davis   continues   to   collect   compensation   from   the   Commonwealth  for  duties  she  fails  to  perform.”  See D.E. 67 at 7. Davis and her office receive no money for marriage licenses from anyone, including the Commonwealth, if no licenses are issued; as such, her office is fee-based and every dollar generated is from services rendered. See D.E.  26,  Hr’g  Tr.  (7/20/15),  Davis  Direct,  at  25:5-10, 26:7-13. 3 Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 5 of 7 - Page ID#: 1544 §§ 2000bb-1 et seq.. The  federal   RFRA  may  be  asserted  “as  a  claim  or  a  defense  in   a  judicial   proceeding,”  including  any  contempt  proceedings.  See 42 U.S.C. § 2000bb-1(c); see also U.S. v. Ali, 682 F.3d 705, 709-11 (8th Cir. 2012) (vacating contempt sanction by federal judge for failure to evaluate whether court order violated RFRA). Fifth,  “[t]he  wand  of  contempt  should  be  waved  only  in  rare  situations,” Madison Capital Co., LLC v. Smith, No. 07-27, 2010 WL 812870, at *6 (E.D. Ky. Mar. 4, 2010), and that wand is not appropriately waved where a panoply of less restrictive alternatives are available that (1) provide Plaintiffs with marriage licenses in Rowan County but (2) do not substantially burden Davis’  undisputed  “honest  conviction”  and  sincerely-held religious beliefs that make it impossible for her to authorize the SSM licenses, including: • Providing an opt-out or exemption to the Kentucky marriage licensing scheme (as exists for the Kentucky fish and wildlife licensing scheme), KY. REV. STAT. § 150.195, and as other states, such as North Carolina, have enacted, see, e.g., N.C. GEN. STAT. § 51-5.5 (permitting   recusal   of   officials   from   “issuing”   lawful   marriage  licenses  “based  upon  any  sincerely  held  religious  objection”); • Deputizing a neighboring county clerk (or some other person) to issue Kentucky marriage licenses in Rowan County; • Modifying the prescribed Kentucky marriage license form to remove the multiple references   to   Davis’   name,   and   thus   to   remove   the   personal   nature   of   the   authorization that Davis must provide on the current form4; or • Distributing Kentucky marriage licenses at the state-level through an online or other state-wide licensing scheme, such as through the Department of Vital Statistics5; • Deeming   Davis   “absent”   for   purposes   of   issuing   SSM   licenses,   based   upon   her   moral and religious inability to issue them, and allowing those licenses to be issued 4 The Kentucky County Clerks Association have made a similar proposal. See Ky. County Clerks Association will  propose  removing  clerks’ names from marriage licenses in upcoming session, CN2.COM, Aug. 26, 2015. In fact, Atty.  Gen.  Conway  said  he  is  “fine”  with  that  proposal.   See Jack  Conway  says  he’s  fine  with  proposal  to  remove   names of county clerks from marriage licenses, LEXINGTON HERALD-LEADER, Aug. 28, 2015. 5 A bill for the next general session of the Kentucky legislature proposes to move marriage licensing and recording duties from county clerks to the state registrar of vital statistics. See An Act Related to Marriage and Making an Appropriation Therefor, Ky. House Bill 154 (2016 Reg. Sess.). 4 Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 6 of 7 - Page ID#: 1545 by the chief executive of Rowan County, as specifically authorized by Kentucky law, see KY. REV. STAT. § 402.240; • Legislatively   addressing   Kentucky’s   entire   marriage   licensing   scheme   postObergefell, whether immediately by calling a special legislative session or in three months in the next regular legislative session. Finally, any contempt finding in this matter is premature and improperly intrusive and invasive into state affairs. See Milliken v. Bradley, 433 U.S. 267, 280-81 (1977) (“[T]he  federal   courts in devising a remedy take into account the interests of state and local authorities in managing their own affairs,  consistent  with  the  Constitution.”); see also Spallone v. U.S., 493 U.S. 265, 276 (1990); Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984). The Obergefell v. Hodges decision from the Supreme Court, 135 S.Ct. 2584 (2015), which held Kentucky’s  natural  and  democraticallyenacted marriage law unconstitutional, effectively obliterated Kentucky marriage law by redefining its foundational terms. Leading Kentucky legislators from both parties in both houses uniformly agree that the legislature needs to address the entire marriage scheme in light of Obergefell, but also agree that  Davis’  religious  beliefs  should  be   (and can be) accommodated.6 Both gubernatorial candidates in Kentucky have indicated an intent to support county   clerks’   individual rights.7 For all the foregoing reasons, and those to be raised at the September 3, 2015 hearing in this  matter,  Plaintiffs’  Motion  to  Hold  Davis  in  Contempt  of  Court  should  be  denied. DATED: September 2, 2015 Respectfully submitted: /s/ Jonathan D. Christman Jonathan D. Christman One of the Attorneys for Defendant/ThirdParty Plaintiff Kim Davis 6 See August 24, 2015 Roundtable Discussion, video available at http://www ket.org/public-affairs/legislatorspreview-election-2015/ (Senate President Robert Stivers, Senate Minority Floor Leader Ray Jones, House Speaker Greg Stumbo, and House Minority Floor Leader Jeff Hoover). 7 See Bevin: Kentucky should stop issuing marriage licenses, Washington Times, July 10, 2015 (Republican candidate Matt Bevin stating  that  he  will  “protect[]  religious  freedoms”  and  Democrat  candidate  Atty.  Gen.  Conway   stating that he will “allow  county  clerks  some  flexibility”). 5 Case: 0:15-cv-00044-DLB Doc #: 72 Filed: 09/02/15 Page: 7 of 7 - Page ID#: 1546 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed  via  the  Court’s  ECF   filing system and therefore  service  will  be  effectuated  by  the  Court’s  electronic  notification  system   upon all counsel or parties of record: Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com Attorneys for Rowan County William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org Attorneys for Plaintiffs William M. Lear, Jr. Palmer G. Vance II STOLL KEENON OGDEN PLLC 300 West Vine Street, Suite 2100 Lexington, Kentucky 40507-1380 Attorneys for Governor Steven L. Beshear and Commissioner Wayne Onkst DATED: September 2, 2015 /s/ Jonathan D. Christman Jonathan D. Christman Attorney for Defendant/Third-Party Plaintiff Kim Davis 6