Re: More Davis strangeness

[Walsh, Kevin]

I’m happy to put aside the third-party claim, which presents unnecessary 
difficulties.

Here’s an attempt at reformulating the question to which I think Rule 19 may be 
the right answer in Miller v. Davis: To the extent that a state RFRA makes a 
particular official defendant’s duty to particular federal plaintiffs 
defeasible, what is the best way procedurally to ensure that the legally 
protected interests of all the parties actually are protected?

Any duty that Kim Davis has to issue marriage licenses arises from a 
combination of state and federal law, not the Constitution alone. State law 
answers the questions: Why this official and why in this way? And the state 
RFRA, as part of state law, very well could supply the answers: actually, not 
this official, or not in this way; instead that other official has the duty, or 
the duty is to be carried out in a slightly different way.

Cashing this out in Rule 19 terms: Depending on the content of state law, 
complete relief might actually require naming officials in addition to Davis 
(FRCP 19(a)(1)(A). Absent joinder as a party, a non-party (the governor) might, 
as a practical matter, have his interest in the subject matter (a working 
system of marriage licensing that complies with federal and state law) impaired 
(FRCP 19(a)(1)(B)(i)). Additional officials as defendants may be necessary to 
prevent Davis from incurring inconsistent obligations (required in federal 
court to issue licenses that state court says she is not required to issue) 
(FRCP 19(a)(1)(B)(ii)).

All these scenarios seem far removed from Temple v. Synthes and joint 
tortfeasors liable for money damages.

Kevin

From: Michael Masinter 
>
Reply-To: Law & Religion List 
>
Date: Tuesday, September 8, 2015 at 12:30 PM
To: Law & Religion List 
>, Michael Dorf 
>
Cc: "Dellinger, Walter" >, Howard 
Wasserman >, Samuel Bagenstos 
>
Subject: RE: More Davis strangeness


I don't see a basis for objecting under Rule 19 to the plaintiffs' choice of 
defendants in an official capacity claim for injunctive relief. The plaintiffs 
sought the issuance of marriage licenses from the county official designated by 
state law as the official with a ministerial duty to issue them and sued her 
for refusing to issue them.  As others have already noted, the supremacy clause 
supersedes any objection she might have had that complying with the 
constitution would cause her to violate state law, particularly given the order 
from the governor. In short, plaintiffs sued the defendant who could afford 
them all the relief they sought, so I cannot see why Rule 19(a) would authorize 
the court to order the joinder of others.  Even if the plaintiffs might have 
had a claim against state officials (it is not obvious that they would have), 
Rule 19(a) does not empower a court to order the joinder of defendants simply 
because a plaintiff might have a viable claim against them.  Although Temple v. 
Synthes Corp. arose in tort litigation for damages, its holding on the limited 
scope of power under Rule 19(a) would seem to dispose of a Rule 19 motion here 
too.



As to the third party complaint, Sam Bagenstos and Mike Dorf have already noted 
the limitation of the judicial power of the United States that arises from 
Pennhurst, a limitation that is not dependent on the particular source of 
statutory subject matter jurisdiction.  There are also Rule 14 questions that 
lurk in the third party complaint arising from the frequently stated 
requirement that third party claims must be in the nature of derivative claims 
for indemnification should plaintiff prevail, not independent claims for relief 
against the putative third party defendant even if they arose from the same 
transaction.  The claims of the clerk  against the governor derive from her 
objection to the governor's order; they were ripe even before the plaintiffs 
sued.  For that reason, they arguably  are not proper third party claims.  Of 
course even if they were, they would run into Pennhurst, but they are at least 
questionable attempts by a defendant to use Rule 14 to interfere with the 
plaintiffs’ presumptive control over parties to litigation, the principle 
underlying Temple v. Synthes Corp. in the Rule 19 context.



Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu








-Original Message-
From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, 

Re: Kim Davis released, given that her Deputies are issuing licenses

[Anthony Michael Kreis]

Just as an FYI for those not watching the rally-- Davis' counsel told the crowd 
she plans on blocking marriages again. He also went out of his way to say that 
the Plaintiffs' licenses are not valid. (Not that his view on that finer point 
necessarily matters, but interesting nonetheless.)

Anthony Michael Kreis, J.D.
University of Georgia
School of Public & Int'l Affairs
Sent from my iPhone

On Sep 8, 2015, at 2:24 PM, Scarberry, Mark 
> wrote:

If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

But definitely a tentative conclusion.

Best,

Eric

Sent from my iPhone

On Sep 8, 2015, at 1:40 PM, "Doug Laycock" 
> wrote:
I agree that he probably can’t issue an order protecting all couples without a 
class certification. But he did it, in the release order:  “Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples.” And 
he seems to interpret his September 3 order as also covering “all legally 
eligible couples.” And he orders counsel for the deputies to report on 
compliance every two weeks.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: Howard Wasserman [mailto:wasse...@fiu.edu]
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu; Michael Dorf; Josh 
Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses


But now we're back to the problem we've seen in other states: The named 
plaintiffs have received their licenses and this has not (yet) been certified 
as a class action. So Davis would not actually be violating the court's order 
if she interferes with licenses to non-parties.



The plaintiffs filed a motion asking the court to clarify that the injunction 
extends to all couples, named or otherwise. But it's not clear he can do that 
without the class certification.



Howard



PS: Please feel free to forward this comment to the Law & Religion list.



Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130


From: Marty Lederman >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

RE: Kim Davis released, given that her Deputies are issuing licenses

[Doug Laycock]

He can’t issue an injunction orally. There are cases on that. And it is hard to 
imagine an oral order complying with Rule 65, which requires the injunction to 
be specific in its terms, to state the reasons for its issuance, and describe 
in reasonable detail, and not by reference to other documents, the acts 
restrained or required.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 08, 2015 3:53 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Eric J Segall; conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

What's she going to do to stop her Deputies?  In his order today, Judge Bunning 
indicates that they are subject to their own injunctions to issue the licenses. 
 (If so, the document is not yet public -- it must have been done orally at the 
contempt hearing on Thursday, the transcript of which is still not available.)  
Is she going to literally stand in their path?  Threaten them with disfavorable 
work conditions?  If so, she'll be back in prison in a nanosecond -- and 
without even the pretextual ground of religious burden, since her name isn't on 
the licenses.

 

On Tue, Sep 8, 2015 at 3:42 PM, Anthony Michael Kreis  > wrote:

Just as an FYI for those not watching the rally-- Davis' counsel told the crowd 
she plans on blocking marriages again. He also went out of his way to say that 
the Plaintiffs' licenses are not valid. (Not that his view on that finer point 
necessarily matters, but interesting nonetheless.)

Anthony Michael Kreis, J.D.

University of Georgia

School of Public & Int'l Affairs

Sent from my iPhone


On Sep 8, 2015, at 2:24 PM, Scarberry, Mark  > wrote:

If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

 

Mark

 

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

 

From: conlawprof-boun...@lists.ucla.edu 
  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu  
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

 

But definitely a tentative conclusion.

 

Best,

 

Eric

Sent from my iPhone


On Sep 8, 2015, at 1:40 PM, "Doug Laycock"  > wrote:

I agree that he probably can’t issue an order protecting all couples without a 
class certification. But he did it, in the release order:  “Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples.” And 
he seems to interpret his September 3 order as also covering “all legally 
eligible couples.” And he orders counsel for the deputies to report on 
compliance every two weeks.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546  

 

From: Howard Wasserman [mailto:wasse...@fiu.edu] 
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu  ; Michael Dorf; 
Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

But now we're back to the problem we've seen in other states: The named 
plaintiffs have received their licenses and this has not (yet) been certified 
as a class action. So Davis would not actually be violating the court's order 
if she interferes with licenses to non-parties.

 

The plaintiffs filed a motion asking the court to clarify that the injunction 
extends to all couples, named or otherwise. But it's not clear he can do that 
without the class certification.

 

Howard

 

PS: Please 

RE: Kim Davis released, given that her Deputies are issuing licenses

[Scarberry, Mark]

If they have notice of the injunction against Davis (which of course they do) 
and are working in concert with her, they could be held in contempt. The facts 
would need to be fleshed out.

If they are acting on their own, even though they have the same purposes as 
Davis, then they can’t be held in contempt absent entry of an injunction 
against them, per Doug’s post. It’s not enough that they want to achieve the 
same result. I have taught this using some of the abortion protest cases in 
which people (or groups) may or may not be working together, and thus may or 
may not be bound by an injunction entered against one of them (or against one 
group).

Mark

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Tuesday, September 08, 2015 1:01 PM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Eric J Segall'; conlawp...@lists.ucla.edu
Subject: RE: Kim Davis released, given that her Deputies are issuing licenses

He can’t issue an injunction orally. There are cases on that. And it is hard to 
imagine an oral order complying with Rule 65, which requires the injunction to 
be specific in its terms, to state the reasons for its issuance, and describe 
in reasonable detail, and not by reference to other documents, the acts 
restrained or required.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 08, 2015 3:53 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Eric J Segall; 
conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

What's she going to do to stop her Deputies?  In his order today, Judge Bunning 
indicates that they are subject to their own injunctions to issue the licenses. 
 (If so, the document is not yet public -- it must have been done orally at the 
contempt hearing on Thursday, the transcript of which is still not available.)  
Is she going to literally stand in their path?  Threaten them with disfavorable 
work conditions?  If so, she'll be back in prison in a nanosecond -- and 
without even the pretextual ground of religious burden, since her name isn't on 
the licenses.

On Tue, Sep 8, 2015 at 3:42 PM, Anthony Michael Kreis 
> wrote:
Just as an FYI for those not watching the rally-- Davis' counsel told the crowd 
she plans on blocking marriages again. He also went out of his way to say that 
the Plaintiffs' licenses are not valid. (Not that his view on that finer point 
necessarily matters, but interesting nonetheless.)
Anthony Michael Kreis, J.D.
University of Georgia
School of Public & Int'l Affairs
Sent from my iPhone

On Sep 8, 2015, at 2:24 PM, Scarberry, Mark 
> wrote:
If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

But definitely a tentative conclusion.

Best,

Eric

Sent from my iPhone

On Sep 8, 2015, at 1:40 PM, "Doug Laycock" 
> wrote:
I agree that he probably can’t issue an order protecting all couples without a 
class certification. But he did it, in the release order:  “Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples.” And 
he seems to interpret his September 3 order as also covering “all legally 
eligible couples.” And he orders counsel for the deputies to report on 
compliance every 

Re: Kim Davis released, given that her Deputies are issuing licenses

[Marty Lederman]

What's she going to do to stop her Deputies?  In his order today, Judge
Bunning indicates that they are subject to their own injunctions to issue
the licenses.  (If so, the document is not yet public -- it must have been
done orally at the contempt hearing on Thursday, the transcript of which is
still not available.)  Is she going to literally stand in their path?
Threaten them with disfavorable work conditions?  If so, she'll be back in
prison in a nanosecond -- and without even the pretextual ground of
religious burden, since her name isn't on the licenses.

On Tue, Sep 8, 2015 at 3:42 PM, Anthony Michael Kreis  wrote:

> Just as an FYI for those not watching the rally-- Davis' counsel told the
> crowd she plans on blocking marriages again. He also went out of his way to
> say that the Plaintiffs' licenses are not valid. (Not that his view on that
> finer point necessarily matters, but interesting nonetheless.)
>
> Anthony Michael Kreis, J.D.
> University of Georgia
> School of Public & Int'l Affairs
> Sent from my iPhone
>
> On Sep 8, 2015, at 2:24 PM, Scarberry, Mark 
> wrote:
>
> If Davis interprets current Kentucky law to provide that a license not
> specifically authorized by the county clerk is invalid, would she be in
> violation of the release order if she so informs others within the Kentucky
> government, or so informs persons seeking licenses? There may be
> interesting federalism or 1st Am. issues. But perhaps the licenses still
> include her name so that, to the extent she thinks her authorization is
> required, she would admit that her authorization is being given (though
> over her objection) in a sufficient manner.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [
> mailto:conlawprof-boun...@lists.ucla.edu
> ] *On Behalf Of *Eric J Segall
> *Sent:* Tuesday, September 08, 2015 10:55 AM
> *To:* Doug Laycock
> *Cc:* Michael Dorf; Law & Religion issues for Law Academics; Volokh,
> Eugene; conlawp...@lists.ucla.edu
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> I'm not sure but it seems like judges should have jurisdiction to enforce
> prior injunctions and his injunction does seem reasonable as being without
> a time limit.
>
>
>
> But definitely a tentative conclusion.
>
>
>
> Best,
>
>
>
> Eric
>
> Sent from my iPhone
>
>
> On Sep 8, 2015, at 1:40 PM, "Doug Laycock"  wrote:
>
> I agree that he probably can’t issue an order protecting all couples
> without a class certification. But he did it, in the release order:
> “Defendant Davis shall not interfere in any way, directly or indirectly,
> with the efforts of her deputy clerks to issue marriage licenses to all
> legally eligible couples.” And he seems to interpret his September 3 order
> as also covering “all legally eligible couples.” And he orders counsel for
> the deputies to report on compliance every two weeks.
>
>
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* Howard Wasserman [mailto:wasse...@fiu.edu ]
> *Sent:* Tuesday, September 08, 2015 1:31 PM
> *To:* Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock;
> conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> But now we're back to the problem we've seen in other states: The named
> plaintiffs have received their licenses and this has not (yet) been
> certified as a class action. So Davis would not actually be violating the
> court's order if she interferes with licenses to non-parties.
>
>
>
> The plaintiffs filed a motion asking the court to clarify that the
> injunction extends to all couples, named or otherwise. But it's not clear
> he can do that without the class certification.
>
>
>
> Howard
>
>
>
> PS: Please feel free to forward this comment to the Law & Religion list.
>
>
>
>
> Howard M. Wasserman
> Professor of Law
> FIU College of Law
> University Park, RDB 2065
> Miami, Florida  33199
> (305) 348-7482
> (786) 417-2433
> howard.wasser...@fiu.edu
> Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
> http://ssrn.com/author_id=283130
>
>
> --
>
> *From:* Marty Lederman 
> *Sent:* Tuesday, September 08, 2015 1:06 PM
> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard
> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law
> Academics; Michael Dorf
> *Subject:* Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> Contempt order lifted.  Because the deputies are issuing licenses -- which
> the judge assumes are valid without 

Re: Kim Davis released, given that her Deputies are issuing licenses

[Marty Lederman]

My sense is that the judge extended his *preliminary *injunction to cover
all couples seeking a license because he anticipates granting the motion
for class certification and wished to preserve their rights in the
meantime.  Not sure whether that's kosher -- cart before horse and all --
but I wouldn't be surprised if he grants the motion for class certification
soon.

On Tue, Sep 8, 2015 at 1:57 PM, Doug Laycock  wrote:

> Howard and I agree that issuing the injunction to protect non-parties is
> an error, although there are cases going both ways, and I haven’t looked in
> the Sixth Circuit.
>
>
>
> And that error should be a good defense to a motion for civil contempt. It
> is no defense to a motion for criminal contempt, but again, it so far does
> not appear that anyone wants to go there.
>
>
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* Howard Wasserman [mailto:wasse...@fiu.edu]
> *Sent:* Tuesday, September 08, 2015 1:43 PM
> *To:* Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter;
> Douglas Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
>
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> I don't think it's mootness-I think it would be a motion to dissolve the
> injunction as having been complied with. That will just alert the judge to
> certify the class.
>
>
>
> Doug: I agree Judge Bunning did that. But that would seem to be a good
> defense to a contempt motion.
>
>
>
>
> Howard M. Wasserman
> Professor of Law
> FIU College of Law
> University Park, RDB 2065
> Miami, Florida  33199
> (305) 348-7482
> (786) 417-2433
> howard.wasser...@fiu.edu
> Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
> http://ssrn.com/author_id=283130
>
>
> --
>
> *From:* Cohen,David 
> *Sent:* Tuesday, September 08, 2015 1:38 PM
> *To:* Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger,
> Walter; Douglas Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh
> Blackman
> *Subject:* RE: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> In other words, shouldn’t Davis file a motion to dismiss the complaint as
> moot?
>
>
>
> *David S. Cohen*
>
> *Professor of Law*
>
>
> Thomas R. Kline School of Law
>
> *Drexel University *
>
> 3320 Market St.
>
> Philadelphia, PA 19104
>
> Tel: 215.571.4714
>
> drexel.edu
> 
> | facebook
> 
> | twitter
> 
>
> Available NOW
> :
> *Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism 
> *(Oxford)
>
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [
> mailto:conlawprof-boun...@lists.ucla.edu
> ] *On Behalf Of *Howard Wasserman
> *Sent:* Tuesday, September 08, 2015 1:31 PM
> *To:* Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock;
> conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> But now we're back to the problem we've seen in other states: The named
> plaintiffs have received their licenses and this has not (yet) been
> certified as a class action. So Davis would not actually be violating the
> court's order if she interferes with licenses to non-parties.
>
>
>
> The plaintiffs filed a motion asking the court to clarify that the
> injunction extends to all couples, named or otherwise. But it's not clear
> he can do that without the class certification.
>
>
>
> Howard
>
>
>
> PS: Please feel free to forward this comment to the Law & Religion list.
>
>
>
>
> Howard M. Wasserman
> Professor of Law
> FIU College of Law
> University Park, RDB 2065
> Miami, Florida  33199
> (305) 348-7482
> (786) 417-2433
> howard.wasser...@fiu.edu
> Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
> http://ssrn.com/author_id=283130
>
>
> --
>
> 

RE: Kim Davis released, given that her Deputies are issuing licenses

[Doug Laycock]

Good point. He can issue a preliminary injunction based on a preliminary view 
of all the other issues, so why not based on a preliminary view of the class 
certification question? I haven’t thought about that, but it sounds plausible.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Marty Lederman [mailto:lederman.ma...@gmail.com] 
Sent: Tuesday, September 08, 2015 3:40 PM
To: Doug Laycock
Cc: Howard Wasserman; Cohen,David; Volokh, Eugene; Dellinger, Walter; 
conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman; Law & Religion issues 
for Law Academics
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

My sense is that the judge extended his preliminary injunction to cover all 
couples seeking a license because he anticipates granting the motion for class 
certification and wished to preserve their rights in the meantime.  Not sure 
whether that's kosher -- cart before horse and all -- but I wouldn't be 
surprised if he grants the motion for class certification soon.

 

On Tue, Sep 8, 2015 at 1:57 PM, Doug Laycock  > wrote:

Howard and I agree that issuing the injunction to protect non-parties is an 
error, although there are cases going both ways, and I haven’t looked in the 
Sixth Circuit.

 

And that error should be a good defense to a motion for civil contempt. It is 
no defense to a motion for criminal contempt, but again, it so far does not 
appear that anyone wants to go there.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546  

 

From: Howard Wasserman [mailto:wasse...@fiu.edu  ] 
Sent: Tuesday, September 08, 2015 1:43 PM
To: Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas 
Laycock; conlawp...@lists.ucla.edu  ; Michael 
Dorf; Josh Blackman


Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

I don't think it's mootness-I think it would be a motion to dissolve the 
injunction as having been complied with. That will just alert the judge to 
certify the class.

 

Doug: I agree Judge Bunning did that. But that would seem to be a good defense 
to a contempt motion.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482  
(786) 417-2433  
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 


  _  


From: Cohen,David  >
Sent: Tuesday, September 08, 2015 1:38 PM
To: Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger, Walter; 
Douglas Laycock; conlawp...@lists.ucla.edu  ; 
Michael Dorf; Josh Blackman
Subject: RE: Kim Davis released, given that her Deputies are issuing licenses 

 

In other words, shouldn’t Davis file a motion to dismiss the complaint as moot?

 

David S. Cohen

Professor of Law


Thomas R. Kline School of Law

Drexel University 

3320 Market St.

Philadelphia, PA 19104 

Tel: 215.571.4714  

 

 drexel.edu | facebook 

  | twitter 

 

Available NOW 

 : Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism 
(Oxford) 

 

From: conlawprof-boun...@lists.ucla.edu 
  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Howard Wasserman
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu  ; Michael Dorf; 
Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

But now we're back to the problem we've seen 

Re: More Davis strangeness

[Walsh, Kevin]

If the Kentucky RFRA does not make Davis’s state-law duty defeasible, or if 
federal constitutional law forecloses this kind of defeasability, then there’s 
no need to get into Rule 19. So maybe we’re talking past each other.

Here’s an analogy to illustrate my thinking (but bear in mind it’s just an 
analogy!).

Suppose state law on who may issue marriage licenses is something like this: 
“All marriage licenses in a county must be issued by the county clerk (and only 
the county clerk). But if the county clerk once objects on religious grounds to 
providing a marriage license to any one couple, the county executive shall 
thereafter be the exclusive issuer of marriage licenses in the county.”

And suppose the facts are these: A couple seeks a marriage license from the 
county clerk. The clerk refuses on religious grounds and says “go get it from 
the county executive.” So they try. But the county executive refuses on the 
ground that the state marriage licensing law is unconstitutional after the 
first sentence. On reflection, the couple agrees with this position.

And then we have a federal lawsuit in which the couple are plaintiffs and the 
county clerk is the sole defendant. The clerk tries to get the county executive 
added as a defendant under Rule 19. The county clerk says that she is the wrong 
person under state law to issue the marriage license. Plaintiffs disagree and 
say the county clerk is wrong about her view of state law because the 
constitution disallows substitutions and thereby entitles them to a license 
from the county clerk.

There are some differences with Miller v. Davis, of course. But this is roughly 
the kind of situation that it seems to me the court was facing at the outset. 
Kentucky’s RFRA meant that marriage licenses should be issued by someone else 
or in some other form. But because the governor’s “issue or resign” position 
was wrong about what state law required, the state failed to come up with 
another way of delivering licenses to couples seeking state marriage licenses 
in Rowan County. And then the court went ahead and decided in the context of a 
PI motion that RFRA didn’t let Davis off the hook anyway.

From: Michael Masinter 
>
Reply-To: Law & Religion List 
>
Date: Tuesday, September 8, 2015 at 4:16 PM
To: Law & Religion List 
>, Michael Dorf 
>
Cc: "Dellinger, Walter" >, Howard 
Wasserman >, Samuel Bagenstos 
>
Subject: RE: More Davis strangeness

Isn’t it axiomatic that the duty the constitution imposes on a state or local 
official always arises from a combination of state and federal law?   State law 
always supplies the authority of a local official to act in her official 
capacity.  So if that is a sufficient basis under which to compel the joinder 
of state officials whenever a claim is made that the official has violated the 
constitution in performing or refusing to perform official acts, then countless 
official capacity claims for injunctive relief have proceeded in violation of 
Rule 19.  I think that argument proves too much; the response is simply the 
supremacy clause.  In the rare case in which state law is unclear, is 
susceptible of resolution in a way that would render unnecessary the 
adjudication of a federal constitutional claim that is not free from doubt, 
there is always Pullman abstention.  But Pullman was never in the picture; 
there was never an unclear question of state law  that had the potential to 
moot the federal constitutional claim, and in any event,   Obergefell resolved 
the constitutional claim.

So far as I can tell, nobody other than Ms. Davis and her counsel has argued 
that plaintiffs cannot obtain complete relief without joining state defendants. 
 Certainly the governor has offered no suggestion that he regards the 
litigation as a threat to a working system of marriage licenses, and the 
plaintiffs seem quite satisfied with the validity of their licenses. Ms. Davis 
can continue to insist licenses issued by her deputies are invalid, but in 
doing so she is simply expressing a belief lacking in any apparent foundation.  
So it’s hard to see why plaintiffs do not already have complete prospective 
relief.

No state official has suggested that Ms. Davis faces inconsistent obligations; 
to the contrary, the governor’s order makes the contrary clear. So none of the 
prerequisites for ordering joinder under Rule 19(a) seem to be present.  And 
because the state officials have done nothing to hinder plaintiffs in their 
pursuit of a license, what claim could plaintiffs plausibly assert against 
them?  To borrow from Temple v. Synthes Corp., they aren’t even 

Davis doubles down

[Marty Lederman]

Eugene reports, pursuant to a phone conversation with Davis's attorneys,
that she will continue to press her RFRA claim, and insist that the
licenses not be issued, because, even though her name is no longer on the
licenses, the name of her *office *is!

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/

It's just like the contraception cases -- whenever the government
accommodates even the most implausible theories of complicity by
eliminating the aspects of the scheme that the plaintiff asserted made her
morally complicit, the plaintiff then unveils a new (and even more
attenuated) theory of responsibility that is said not to be left
unaddressed by the accommodation.  In this way, the plaintiffs effectively
exploit the fact that the governments in question (admirably) do not choose
to challenge the sincerity of the ever-evolving theories of complicity.

On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman 
wrote:

> I'm pressed for time, so this is only a preliminary take, but thought it'd
> be worth throwing it out there for reactions:
>
>
> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html
>
___
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messages to others.

Re: Davis doubles down

[James Oleske]

For what it's worth, in their filing to the Sixth Circuit yesterday,
Davis's attorneys insisted that she was *not* making a complicity claim
akin to that being made in the contraception cases, and they emphasized
that her concern was the appearance of her name on the forms (emphasis in
original):


"Importantly, Davis is not claiming a substantial burden on her religious
freedom if *someone else authorizes* and approves a SSM license *devoid of
her name*. For example, Davis is not claiming that her religious freedom is
substantially burdened if she must complete an opt-out form to be exempted
from issuing SSM licenses. Davis is also not claiming that a SSM license
authorized by the Rowan County Judge/Executive and devoid of her name and
authority substantially burdens her religious freedom. Davis is also not
claiming that her religious freedom is substantially burdened if the
license were issued by someone else in Rowan County (*e.g.*, a deputy
clerk), so long as that license is not issued under her name or on her
authority."


I gather that the last phrase -- "on her authority" -- is what her
attorneys are now emphasizing. As long as she is the County Clerk, the
issuance of marriage licenses in the name of the County Clerk's office,
even without her name, is on her authority and a violation of her RFRA
rights.

In his post, Eugene notes that this claim may go beyond what the Kentucky
RFRA guarantees, but he also opines that "the accommodation doesn't seem
terribly burdensome."

Do others feel similarly? Is it really just no big deal to require the
government to alter the use of government names (Rowan County Clerk's
Office) to accommodate the religious beliefs of individual government
officials, even after their names have been removed from the equation? If
the U.S. Attorney for the District of Massachusetts opposed the death
penalty on religious grounds, and was allowed to take his name off of all
filings in capital cases, would we really entertain a claim that it would
not be terribly burdensome to require the government to take the office's
name off of all such filings?

- Jim

On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman 
wrote:

> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
> that she will continue to press her RFRA claim, and insist that the
> licenses not be issued, because, even though her name is no longer on the
> licenses, the name of her *office *is!
>
>
> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/
>
> It's just like the contraception cases -- whenever the government
> accommodates even the most implausible theories of complicity by
> eliminating the aspects of the scheme that the plaintiff asserted made her
> morally complicit, the plaintiff then unveils a new (and even more
> attenuated) theory of responsibility that is said not to be left
> unaddressed by the accommodation.  In this way, the plaintiffs effectively
> exploit the fact that the governments in question (admirably) do not choose
> to challenge the sincerity of the ever-evolving theories of complicity.
>
> On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman 
> wrote:
>
>> I'm pressed for time, so this is only a preliminary take, but thought
>> it'd be worth throwing it out there for reactions:
>>
>>
>> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html
>>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
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To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: More Davis strangeness

[Michael Masinter]

Perhaps KRFRA makes Davis's state law duty defeasible, but isn't that a 
question of Kentucky law appropriately resolved by Kentucky courts rather than 
by a federal judge making an Erie guess?  Perhaps Kentucky would give to its 
act only the crabbed construction Florida's supreme court gave to FRFRA in 
Warner v. Town of Boca Raton, or perhaps it would give it the extraordinarily 
broad construction SCOTUS gave to RFRA in Hobby Lobby, but a federal judge 
should not make that call.

Ms. Davis has and continues to have an opportunity to bring her KRFRA claim in 
a Kentucky court; she could have done so before the plaintiffs sued and can 
still do so.  The plaintiffs are entitled to licenses, but in her still 
evolving view, Kentucky must adjust its laws to remove responsibility for their 
issuance from her office.  Whether she is right or wrong in no way affects the 
right of the plaintiffs to a license, and should not bog down their right to 
relief to which under Obergefell they are entitled.

The hypothetical below doesn't capture the question for three reasons.  First, 
it shifts the question from whether plaintiffs are entitled to a license from 
the official charged with its issuance to whether the state's decision to shift 
to another official the obligation to issue that license violates the 
establishment clause.  Second, it creates a dispute between two county 
officials rather than between a county official and its governor, taking 
Pennhurst's limitation on the judicial power of the United States out of the 
discussion. Third, if the statute provides the plaintiffs the relief to which 
they are entitled - a marriage license - without relegating them to some second 
class status, then it is not obvious that they even have standing to contest 
its constitutionality.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 08, 2015 5:47 PM
To: Law & Religion issues for Law Academics ; 
Michael Dorf 
Cc: Dellinger, Walter ; Howard Wasserman 
; Samuel Bagenstos 
Subject: Re: More Davis strangeness

If the Kentucky RFRA does not make Davis's state-law duty defeasible, or if 
federal constitutional law forecloses this kind of defeasability, then there's 
no need to get into Rule 19. So maybe we're talking past each other.

Here's an analogy to illustrate my thinking (but bear in mind it's just an 
analogy!).

Suppose state law on who may issue marriage licenses is something like this: 
"All marriage licenses in a county must be issued by the county clerk (and only 
the county clerk). But if the county clerk once objects on religious grounds to 
providing a marriage license to any one couple, the county executive shall 
thereafter be the exclusive issuer of marriage licenses in the county."

And suppose the facts are these: A couple seeks a marriage license from the 
county clerk. The clerk refuses on religious grounds and says "go get it from 
the county executive." So they try. But the county executive refuses on the 
ground that the state marriage licensing law is unconstitutional after the 
first sentence. On reflection, the couple agrees with this position.

And then we have a federal lawsuit in which the couple are plaintiffs and the 
county clerk is the sole defendant. The clerk tries to get the county executive 
added as a defendant under Rule 19. The county clerk says that she is the wrong 
person under state law to issue the marriage license. Plaintiffs disagree and 
say the county clerk is wrong about her view of state law because the 
constitution disallows substitutions and thereby entitles them to a license 
from the county clerk.

There are some differences with Miller v. Davis, of course. But this is roughly 
the kind of situation that it seems to me the court was facing at the outset. 
Kentucky's RFRA meant that marriage licenses should be issued by someone else 
or in some other form. But because the governor's "issue or resign" position 
was wrong about what state law required, the state failed to come up with 
another way of delivering licenses to couples seeking state marriage licenses 
in Rowan County. And then the court went ahead and decided in the context of a 
PI motion that RFRA didn't let Davis off the hook anyway.

From: Michael Masinter 
>
Reply-To: Law & Religion List 
>
Date: Tuesday, September 8, 2015 at 4:16 PM
To: Law & Religion List 
>, Michael Dorf 
>
Cc: 

Re: Kim Davis released, given that her Deputies are issuing licenses

[Arthur Spitzer]

On Doug Laycock's point ("He can issue a preliminary injunction based on a
preliminary view of all the other issues, so why not based on a preliminary
view of the class certification question? I haven’t thought about that, but
it sounds plausible."), indeed, we got a preliminary injunction based on a
preliminary view of the class certification question earlier this year in
R.I.L-R v. Jeh Johnson, No. 15-cv-0011 (D.D.C.), available here:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv0011-33

Art Spitzer


*Warning:  This email is subject to monitoring by the NSA.*

On Tue, Sep 8, 2015 at 3:44 PM, Doug Laycock  wrote:

> Good point. He can issue a preliminary injunction based on a preliminary
> view of all the other issues, so why not based on a preliminary view of the
> class certification question? I haven’t thought about that, but it sounds
> plausible.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* Marty Lederman [mailto:lederman.ma...@gmail.com]
> *Sent:* Tuesday, September 08, 2015 3:40 PM
> *To:* Doug Laycock
> *Cc:* Howard Wasserman; Cohen,David; Volokh, Eugene; Dellinger, Walter;
> conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman; Law & Religion
> issues for Law Academics
>
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> My sense is that the judge extended his *preliminary *injunction to cover
> all couples seeking a license because he anticipates granting the motion
> for class certification and wished to preserve their rights in the
> meantime.  Not sure whether that's kosher -- cart before horse and all --
> but I wouldn't be surprised if he grants the motion for class certification
> soon.
>
>
>
> On Tue, Sep 8, 2015 at 1:57 PM, Doug Laycock 
> wrote:
>
> Howard and I agree that issuing the injunction to protect non-parties is
> an error, although there are cases going both ways, and I haven’t looked in
> the Sixth Circuit.
>
>
>
> And that error should be a good defense to a motion for civil contempt. It
> is no defense to a motion for criminal contempt, but again, it so far does
> not appear that anyone wants to go there.
>
>
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* Howard Wasserman [mailto:wasse...@fiu.edu]
> *Sent:* Tuesday, September 08, 2015 1:43 PM
> *To:* Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter;
> Douglas Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
>
>
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> I don't think it's mootness-I think it would be a motion to dissolve the
> injunction as having been complied with. That will just alert the judge to
> certify the class.
>
>
>
> Doug: I agree Judge Bunning did that. But that would seem to be a good
> defense to a contempt motion.
>
>
>
>
> Howard M. Wasserman
> Professor of Law
> FIU College of Law
> University Park, RDB 2065
> Miami, Florida  33199
> (305) 348-7482
> (786) 417-2433
> howard.wasser...@fiu.edu
> Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
> http://ssrn.com/author_id=283130
>
>
> --
>
> *From:* Cohen,David 
> *Sent:* Tuesday, September 08, 2015 1:38 PM
> *To:* Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger,
> Walter; Douglas Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh
> Blackman
> *Subject:* RE: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> In other words, shouldn’t Davis file a motion to dismiss the complaint as
> moot?
>
>
>
> *David S. Cohen*
>
> *Professor of Law*
>
>
> Thomas R. Kline School of Law
>
> *Drexel University *
>
> 3320 Market St.
>
> Philadelphia, PA 19104
>
> Tel: 215.571.4714
>
> drexel.edu
> 
> | facebook
> 
> | twitter
> 
>
> Available NOW
> 

RE: Davis doubles down

[Walsh, Kevin]

Based on a quick review of the filings, I don't see how Davis's position has 
shifted. 

Davis's opposition to the preliminary injunction motion from July 30 says: 
"Even though one of her deputy clerks (and perhaps two) is (or are) willing to 
issue a SSM license, she instructed all deputy clerks to stop issuing marriage 
licenses because licenses are issued with her authority (not the deputy 
clerk’s) and every license requires her name to appear on the license (even if 
signed by a deputy clerk)." 

The idea that licenses issued from the Rowan County Clerk's Office are issued 
under the authority of the Rowan County Clerk makes sense. And it also makes 
sense that if Davis does not wish her authority to be used to authorize 
marriages, then she would not wish her office to issue authorizations to marry. 
It would have been odd, for example, if Kentucky's Attorney General had said 
that he would not be defending Kentucky's marriage law, but that his office 
would continue to do so through his deputy. It made sense that the state hired 
private counsel instead.

It is not "no big deal" to let a marriage licensing official take his or her 
office out of the business of doing something the official's religious 
conscience forbids. But neither is doing so "terribly burdensome" if the 
government could easily substitute another official to carry out the state's 
duty so that nobody's right to marry is burdened.  

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Tuesday, September 08, 2015 7:28 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard Wasserman
Subject: Re: Davis doubles down

For what it's worth, in their filing to the Sixth Circuit yesterday, Davis's 
attorneys insisted that she was not making a complicity claim akin to that 
being made in the contraception cases, and they emphasized that her concern was 
the appearance of her name on the forms (emphasis in original):

"Importantly, Davis is not claiming a substantial burden on her religious 
freedom if someone else authorizes and approves a SSM license devoid of her 
name. For example, Davis is not claiming that her religious freedom is 
substantially burdened if she must complete an opt-out form to be exempted from 
issuing SSM licenses. Davis is also not claiming that a SSM license authorized 
by the Rowan County Judge/Executive and devoid of her name and authority 
substantially burdens her religious freedom. Davis is also not claiming that 
her religious freedom is substantially burdened if the license were issued by 
someone else in Rowan County (e.g., a deputy clerk), so long as that license is 
not issued under her name or on her authority."

I gather that the last phrase -- "on her authority" -- is what her attorneys 
are now emphasizing. As long as she is the County Clerk, the issuance of 
marriage licenses in the name of the County Clerk's office, even without her 
name, is on her authority and a violation of her RFRA rights.

In his post, Eugene notes that this claim may go beyond what the Kentucky RFRA 
guarantees, but he also opines that "the accommodation doesn't seem terribly 
burdensome."

Do others feel similarly? Is it really just no big deal to require the 
government to alter the use of government names (Rowan County Clerk's Office) 
to accommodate the religious beliefs of individual government officials, even 
after their names have been removed from the equation? If the U.S. Attorney for 
the District of Massachusetts opposed the death penalty on religious grounds, 
and was allowed to take his name off of all filings in capital cases, would we 
really entertain a claim that it would not be terribly burdensome to require 
the government to take the office's name off of all such filings?

- Jim

On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman 
> wrote:
Eugene reports, pursuant to a phone conversation with Davis's attorneys, that 
she will continue to press her RFRA claim, and insist that the licenses not be 
issued, because, even though her name is no longer on the licenses, the name of 
her office is!

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/

It's just like the contraception cases -- whenever the government accommodates 
even the most implausible theories of complicity by eliminating the aspects of 
the scheme that the plaintiff asserted made her morally complicit, the 
plaintiff then unveils a new (and even more attenuated) theory of 
responsibility that is said not to be left unaddressed by the accommodation.  
In this way, the plaintiffs effectively exploit the fact that the governments 
in question (admirably) do not choose to challenge the sincerity of the 
ever-evolving theories 

Re: Davis doubles down

[Rick Garnett]

Eric,

I was not there, but have I listened, and I don't think your
characterization is accurate.  Notre Dame, my understanding and impression
are, has not said much about the government's determination to provide (or,
more precisely, to require the provision by others of) contraceptives to
Notre Dame's employees.

Instead, the University insists it wants to avoid being involved with (and,
I understand, you and Marty disagree with the University about what
constitutes being meaningfully or culpably involved with) that provision.
I don't see any point in litigating here the "[]plausibility" of the
University's stated views on complicity but, again, it seems inaccurate to
suggest that the University is demanding that its employees not receive
(from someone) contraception or contraception-coverage.

That said:  I do agree that there were a number of things that were
"apparent" from Judge Posner's questions and writings. I'm not sure,
though, how well some of those things reflect on Judge Posner.

Rick

On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall  wrote:

> Well said again Marty.
>
>
>
> I was present in the courtroom for the Notre Dame 7th Circuit appeal. It
> was apparent from Judge Posner’s questions that nothing short of a complete
> government abdication of providing contraception to Notre Dame’s employees
> would satisfy Notre Dame.
>
>
>
> Best,
>
>
>
> Eric
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [mailto:
> conlawprof-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, September 08, 2015 6:29 PM
> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard
> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law
> Academics; Michael Dorf
> *Subject:* Davis doubles down
>
>
>
> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
> that she will continue to press her RFRA claim, and insist that the
> licenses not be issued, because, even though her name is no longer on the
> licenses, the name of her *office *is!
>
>
>
>
> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/
>
>
>
> It's just like the contraception cases -- whenever the government
> accommodates even the most implausible theories of complicity by
> eliminating the aspects of the scheme that the plaintiff asserted made her
> morally complicit, the plaintiff then unveils a new (and even more
> attenuated) theory of responsibility that is said not to be left
> unaddressed by the accommodation.  In this way, the plaintiffs effectively
> exploit the fact that the governments in question (admirably) do not choose
> to challenge the sincerity of the ever-evolving theories of complicity.
>
>
>
> On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman 
> wrote:
>
> I'm pressed for time, so this is only a preliminary take, but thought it'd
> be worth throwing it out there for reactions:
>
>
>
>
> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html
>
>
>
> ___
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RE: More Davis strangeness

[Walsh, Kevin]

The scope of Davis's state-law duties under all of state law, including RFRA, 
is a question of state law. But that doesn't make it inappropriate for a 
federal judge to address the issue. If plaintiffs had sued the head of 
Kentucky's DMV for a marriage license and the defendant said "you've got the 
wrong person under state law," for example, a federal judge could assess state 
law to figure out whether the right defendant was indeed present. I understand 
the point about the potential unclarity and the range of possible 
interpretations. Maybe some form of abstention is appropriate after all. But 
the issue is less one of avoiding a constitutional issue by means of resolving 
an unclear state law issue (typical Pullman abstention) than it is one of 
figuring out how under state law the federal constitutional right is to be 
enforced. So I'm inclined to think the federal judge needs to figure out who 
under state law should issue the plaintiffs their licenses (as he did in the PI 
motion, though with possibly mistaken RFRA analysis).

Davis does have the opportunity of bringing a state RFRA claim in state court. 
But the Kentucky RFRA is Kentucky law regardless of whether Davis brings a RFRA 
claim. It's just a rule of law that Kentucky government needs to follow, and 
that judges need to address to the extent that parties properly present claims, 
defenses, motions, arguments, and whatever else parties can do to bring a 
particular rule of law into play in a case.

You're right about differences between my hypo and Miller v. Davis. I wanted to 
bring the issues into clearer focus by making the role of state law easier to 
observe. But now we can tighten it a bit more: Suppose state marriage licensing 
law provides: "The clerk of every county has exclusive authority to issue 
marriage licenses on behalf of the Commonwealth in any given county. But if a 
county clerk declines to issue a marriage license to any one couple on 
religious grounds, the governor shall identify another suitable individual 
within the county to thereafter possess exclusive authority to issue marriage 
licenses on behalf of the Commonwealth in that county." A couple is denied a 
marriage license on religious grounds. The governor refuses to appoint another 
individual because he erroneously thinks the state law requirement is 
unconstitutional under the state constitution. So the couple sue the clerk.

I realize the limits of analogies, including this one. I suppose one of the 
points I am trying to highlight is the difference between: (1) the plaintiffs 
are entitled to a marriage license, and (2) the plaintiffs are entitled to a 
marriage license from Davis. Denial of (2) is compatible with affirmance of 
(1). To the extent the right answer is something like (1.5) the plaintiffs are 
entitled to a marriage license from an official within Rowan county designated 
by the governor, or something like it, then the governor seemingly belongs in 
the case.



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Masinter [masint...@nsu.law.nova.edu]
Sent: Tuesday, September 08, 2015 6:45 PM
To: Law & Religion issues for Law Academics; Michael Dorf
Cc: Dellinger, Walter; Howard Wasserman; Samuel Bagenstos
Subject: RE: More Davis strangeness

Perhaps KRFRA makes Davis’s state law duty defeasible, but isn’t that a 
question of Kentucky law appropriately resolved by Kentucky courts rather than 
by a federal judge making an Erie guess?  Perhaps Kentucky would give to its 
act only the crabbed construction Florida’s supreme court gave to FRFRA in 
Warner v. Town of Boca Raton, or perhaps it would give it the extraordinarily 
broad construction SCOTUS gave to RFRA in Hobby Lobby, but a federal judge 
should not make that call.

Ms. Davis has and continues to have an opportunity to bring her KRFRA claim in 
a Kentucky court; she could have done so before the plaintiffs sued and can 
still do so.  The plaintiffs are entitled to licenses, but in her still 
evolving view, Kentucky must adjust its laws to remove responsibility for their 
issuance from her office.  Whether she is right or wrong in no way affects the 
right of the plaintiffs to a license, and should not bog down their right to 
relief to which under Obergefell they are entitled.

The hypothetical below doesn’t capture the question for three reasons.  First, 
it shifts the question from whether plaintiffs are entitled to a license from 
the official charged with its issuance to whether the state’s decision to shift 
to another official the obligation to issue that license violates the 
establishment clause.  Second, it creates a dispute between two county 
officials rather than between a county official and its governor, taking 
Pennhurst’s limitation on the judicial power of the United States out of the 
discussion. Third, if the statute provides the plaintiffs the relief to which 
they are 

RE: Davis doubles down

[Levinson, Sanford V]

I realize I really am a babe in the woods in this area, and I am learning a lot 
from the discussion.  But how long should applicants for marriage be expected 
to wait to sort out what seem to me to be increasingly abstruse questions of 
Kentucky state and constitutional law.  After all, as someone who lives in 
Texas, I regularly teach my students that whatever may be the case with the 
national government, Texas by no means has a "unitary executive."  The Governor 
has extremely little "authority" over most other Texas officials, given that 
they are all elected.  After all, just think of the number of Republican 
Attorney Generals who insisted on fighting the Affordable Care Act even in 
states with Democratic Governors or, possibly, vice versa, where Democratic 
Attorney Generals resisted pleas by Republican Governors.  Having lived in 
Texas, I cannot tell you with confidence exactly who has authority in what 
circumstances, except that I'm absolutely confident that a governor coul!
 d not order the Attorney General or anyone under the AG to do anything 
whatsoever.  I suspect the same is true of the elected clerk of court or tax 
collector in Travis County.  So is  Kentucky more like Texas or like, say, New 
Jersey, one of the very, very few states that approaches the "unitary 
executive" model?  My bet is on Texas!

Pullman abstention, insofar as I remember anything about it, requires federal 
courts to take the time to find out what state courts think, which means, by 
definition, that the particular plaintiff has to wait for any  potential 
remedy.  But I assume that most (though not all?) of us believe that those 
seeking marriage licenses are entitled to them now, without more than a very 
few minute of delay while the assistant down the hall is summoned to sell the 
license that the protesting clerk is refusing to.  This is in fact the position 
taken by Texas's Attorney General, who will, I suspect, allow no one to portray 
him/herself as more devoted to religion than Paxton.  That being said, he wrote 
a remarkably nuanced letter supporting both conscientious objection and 
emphasizing that Texas would in fact provide the license to anyone asking for 
it quite quickly.  There was no nonsense about having to drive to the next 
county, etc.  The local debate focused, for example, on whether th!
 e compliant clerk was on a lunch break.  Would the applicants have to wait the 
hour until he/she returned, or did there always have to be someone within, say, 
five minutes to sell the license?  Or does even a five minute delay constitute 
a sufficient breach of a constitutionally-supported dignitary interest to be 
insupportable?  (My own view, for what it's worth, is that there should be no 
litigation about five or perhaps even ten minutes, whatever one's answer to the 
question about dignitary harm, which I think is present, but that's another 
matter.)

sandy



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 08, 2015 9:21 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: RE: Davis doubles down

Based on a quick review of the filings, I don't see how Davis's position has 
shifted. 

Davis's opposition to the preliminary injunction motion from July 30 says: 
"Even though one of her deputy clerks (and perhaps two) is (or are) willing to 
issue a SSM license, she instructed all deputy clerks to stop issuing marriage 
licenses because licenses are issued with her authority (not the deputy 
clerk's) and every license requires her name to appear on the license (even if 
signed by a deputy clerk)." 

The idea that licenses issued from the Rowan County Clerk's Office are issued 
under the authority of the Rowan County Clerk makes sense. And it also makes 
sense that if Davis does not wish her authority to be used to authorize 
marriages, then she would not wish her office to issue authorizations to marry. 
It would have been odd, for example, if Kentucky's Attorney General had said 
that he would not be defending Kentucky's marriage law, but that his office 
would continue to do so through his deputy. It made sense that the state hired 
private counsel instead.

It is not "no big deal" to let a marriage licensing official take his or her 
office out of the business of doing something the official's religious 
conscience forbids. But neither is doing so "terribly burdensome" if the 
government could easily substitute another official to carry out the state's 
duty so that nobody's right to marry is burdened.  

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Tuesday, September 08, 2015 7:28 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard 

Re: Davis doubles down

[James Oleske]

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney
General had said that he would not be defending Kentucky's marriage law,
but that his office would continue to do so through his deputy. It made
sense that the state hired private counsel instead."

I'm not sure this analogy works. It's one thing for an AG to refuse to have
their office defend a law based on the AG's conclusion that a district
judge correctly found the law to be unconstitutional and that the Supreme
Court is likely to agree. It is quite another for an AG to refuse to have
their office defend a law based solely on the AG's religious objection to
the law. The idea that we wouldn't have state lawyers defend state laws
based on  state AGs' religious objections to those laws strikes me as
extremely odd.

Back to Davis, my point was not that she hasn't preserved the "on her
authority" argument for objecting to the issuance of "Rowan County Clerk's
Office" licenses. It appears that she has preserved that argument. But
given Marty's comparison of that argument to the complicity arguments in
the contraception case, I thought it was worth noting that her lawyers
specifically argued in their latest filing that her claim should be viewed
as more modest than the claims in the contraception cases and they framed
that argument by emphasizing (their emphasis, not mine) the phrase "devoid
of her name."

Finally, in judging the burden a claimed accommodation imposes on the
government, I'm inclined to think that we need to look at more than the
logistical issue of whether "the government could easily substitute another
official." It seems to me that requiring the government to modify the use
of government office names to satisfy the religious beliefs of government
employees imposes a burden (and raises concerns) beyond logistics.
(Alternatively, perhaps this is all best approached not by focusing on the
burden on government, but instead, the lack of a cognizable burden on
plaintiff per Roy and Lyng).

- Jim


On Tue, Sep 8, 2015 at 7:21 PM, Walsh, Kevin  wrote:

> Based on a quick review of the filings, I don't see how Davis's position
> has shifted.
>
> Davis's opposition to the preliminary injunction motion from July 30 says:
> "Even though one of her deputy clerks (and perhaps two) is (or are) willing
> to issue a SSM license, she instructed all deputy clerks to stop issuing
> marriage licenses because licenses are issued with her authority (not the
> deputy clerk’s) and every license requires her name to appear on the
> license (even if signed by a deputy clerk)."
>
> The idea that licenses issued from the Rowan County Clerk's Office are
> issued under the authority of the Rowan County Clerk makes sense. And it
> also makes sense that if Davis does not wish her authority to be used to
> authorize marriages, then she would not wish her office to issue
> authorizations to marry. It would have been odd, for example, if Kentucky's
> Attorney General had said that he would not be defending Kentucky's
> marriage law, but that his office would continue to do so through his
> deputy. It made sense that the state hired private counsel instead.
>
> It is not "no big deal" to let a marriage licensing official take his or
> her office out of the business of doing something the official's religious
> conscience forbids. But neither is doing so "terribly burdensome" if the
> government could easily substitute another official to carry out the
> state's duty so that nobody's right to marry is burdened.
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [
> jole...@lclark.edu]
> Sent: Tuesday, September 08, 2015 7:28 PM
> To: Law & Religion issues for Law Academics
> Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard
> Wasserman
> Subject: Re: Davis doubles down
>
> For what it's worth, in their filing to the Sixth Circuit yesterday,
> Davis's attorneys insisted that she was not making a complicity claim akin
> to that being made in the contraception cases, and they emphasized that her
> concern was the appearance of her name on the forms (emphasis in original):
>
> "Importantly, Davis is not claiming a substantial burden on her religious
> freedom if someone else authorizes and approves a SSM license devoid of her
> name. For example, Davis is not claiming that her religious freedom is
> substantially burdened if she must complete an opt-out form to be exempted
> from issuing SSM licenses. Davis is also not claiming that a SSM license
> authorized by the Rowan County Judge/Executive and devoid of her name and
> authority substantially burdens her religious freedom. Davis is also not
> claiming that her religious freedom is substantially burdened if the
> license were issued by someone else in Rowan County (e.g., a deputy clerk),
> so long as that license is not issued under her name or on her authority."

RE: More Davis strangeness

[Michael Masinter]

I don't see a basis for objecting under Rule 19 to the plaintiffs' choice of 
defendants in an official capacity claim for injunctive relief. The plaintiffs 
sought the issuance of marriage licenses from the county official designated by 
state law as the official with a ministerial duty to issue them and sued her 
for refusing to issue them.  As others have already noted, the supremacy clause 
supersedes any objection she might have had that complying with the 
constitution would cause her to violate state law, particularly given the order 
from the governor. In short, plaintiffs sued the defendant who could afford 
them all the relief they sought, so I cannot see why Rule 19(a) would authorize 
the court to order the joinder of others.  Even if the plaintiffs might have 
had a claim against state officials (it is not obvious that they would have), 
Rule 19(a) does not empower a court to order the joinder of defendants simply 
because a plaintiff might have a viable claim against them.  Although Temple v. 
Synthes Corp. arose in tort litigation for damages, its holding on the limited 
scope of power under Rule 19(a) would seem to dispose of a Rule 19 motion here 
too.



As to the third party complaint, Sam Bagenstos and Mike Dorf have already noted 
the limitation of the judicial power of the United States that arises from 
Pennhurst, a limitation that is not dependent on the particular source of 
statutory subject matter jurisdiction.  There are also Rule 14 questions that 
lurk in the third party complaint arising from the frequently stated 
requirement that third party claims must be in the nature of derivative claims 
for indemnification should plaintiff prevail, not independent claims for relief 
against the putative third party defendant even if they arose from the same 
transaction.  The claims of the clerk  against the governor derive from her 
objection to the governor's order; they were ripe even before the plaintiffs 
sued.  For that reason, they arguably  are not proper third party claims.  Of 
course even if they were, they would run into Pennhurst, but they are at least 
questionable attempts by a defendant to use Rule 14 to interfere with the 
plaintiffs' presumptive control over parties to litigation, the principle 
underlying Temple v. Synthes Corp. in the Rule 19 context.



Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu








-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Monday, September 07, 2015 10:58 PM
To: Law & Religion issues for Law Academics ; 
Michael Dorf 
Cc: Dellinger, Walter ; Howard Wasserman 
; Samuel Bagenstos 
Subject: RE: More Davis strangeness



The procedural discussion has been very helpful.



One problem is that not all the right parties are in front of the court. I've 
been wondering why Rule 19 has not been more prominently discussed. It turns 
out that it has been invoked in various pleadings, and I'm wondering if it 
provides the best way out (and the best way to deal with similar problems 
should they arise in the future).



Entry no. 32 on the district court docket is a motion to dismiss filed by 
Davis. One of the grounds is 12(b)(7): failure to join a party required by Rule 
19. Briefing on this motion has been suspended pending disposition of the stay 
request and related matters.



Rather than dismissal, the right response would seem to be a court order 
pursuant to FRCP 19(a)(2) requiring joinder of whichever state officials can 
get plaintiffs their marriage licenses. No Pennhurst problem and no 
supplemental jurisdiction problem with such an order. But this kind of order 
seems to be overlooked when the attention is on the PI, the stay request, the 
contempt proceedings, and the third-party complaint.





From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[lederman.ma...@gmail.com]

Sent: Monday, September 07, 2015 9:35 PM

To: Michael Dorf

Cc: Law & Religion issues for Law Academics; Samuel Bagenstos; Dellinger,   
Walter; conlawp...@lists.ucla.edu; Howard 
Wasserman

Subject: Re: More Davis strangeness



I've fixed the link to Davis's emergency motion to the CTA6 -- it's here:



https://www.liberty.edu/media/9980/attachments/2015/090715_Emergency_Motion_for_Immediate_Consideration_and_Motion_for_Injunction_Pending_Appeal.pdf



I've also added this UPDATE--please let me know if it's not correct:



It's not clear that the Kentucky RFRA claim against a third-party would support 

RE: Kim Davis released, given that her Deputies are issuing licenses

[Doug Laycock]

I agree that he probably can't issue an order protecting all couples without
a class certification. But he did it, in the release order:  "Defendant
Davis shall not interfere in any way, directly or indirectly, with the
efforts of her deputy clerks to issue marriage licenses to all legally
eligible couples." And he seems to interpret his September 3 order as also
covering "all legally eligible couples." And he orders counsel for the
deputies to report on compliance every two weeks.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Howard Wasserman [mailto:wasse...@fiu.edu] 
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock;
conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing
licenses

 

But now we're back to the problem we've seen in other states: The named
plaintiffs have received their licenses and this has not (yet) been
certified as a class action. So Davis would not actually be violating the
court's order if she interferes with licenses to non-parties.

 

The plaintiffs filed a motion asking the court to clarify that the
injunction extends to all couples, named or otherwise. But it's not clear he
can do that without the class certification.

 

Howard

 

PS: Please feel free to forward this comment to the Law & Religion list.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 

  _  

From: Marty Lederman  >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman;
conlawp...@lists.ucla.edu  ; Law &
Religion issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses 

 

Contempt order lifted.  Because the deputies are issuing licenses -- which
the judge assumes are valid without Davis's name, since plaintiffs have not
suggested otherwise -- he lets Davis out of jail and orders that she "shall
not interfere in any way, directly or indirectly, with the efforts of her
deputy clerks to issue marriage licenses to all legally eligible couples. If
Defendant Davis should interfere in any way with their issuance, that will
be considered a violation of this Order and appropriate sanctions will be
considered." 

 

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html
 

 

 

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Kim Davis released, given that her Deputies are issuing licenses

[Marty Lederman]

Contempt order lifted.  Because the deputies are issuing licenses -- which
the judge assumes are valid without Davis's name, since plaintiffs have not
suggested otherwise -- he lets Davis out of jail and orders that she "shall
not interfere in any way, directly or indirectly, with the efforts of her
deputy clerks to issue marriage licenses to all legally eligible couples.
If Defendant Davis should interfere in any way with their issuance, that
will be considered a violation of this Order and appropriate sanctions will
be considered."

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html
___
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RE: Kim Davis released, given that her Deputies are issuing licenses

[Doug Laycock]

Rum luck for her that it was a three-day weekend. But maybe good for the court 
that she had more time to reflect on her situation.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Marty Lederman [mailto:lederman.ma...@gmail.com] 
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses

 

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

 

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html

 

 

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RE: Kim Davis released, given that her Deputies are issuing licenses

[Doug Laycock]

Howard and I agree that issuing the injunction to protect non-parties is an
error, although there are cases going both ways, and I haven't looked in the
Sixth Circuit.

 

And that error should be a good defense to a motion for civil contempt. It
is no defense to a motion for criminal contempt, but again, it so far does
not appear that anyone wants to go there.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Howard Wasserman [mailto:wasse...@fiu.edu] 
Sent: Tuesday, September 08, 2015 1:43 PM
To: Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas
Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing
licenses

 

I don't think it's mootness-I think it would be a motion to dissolve the
injunction as having been complied with. That will just alert the judge to
certify the class.

 

Doug: I agree Judge Bunning did that. But that would seem to be a good
defense to a contempt motion.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 

  _  

From: Cohen,David  >
Sent: Tuesday, September 08, 2015 1:38 PM
To: Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger, Walter;
Douglas Laycock; conlawp...@lists.ucla.edu
 ; Michael Dorf; Josh Blackman
Subject: RE: Kim Davis released, given that her Deputies are issuing
licenses 

 

In other words, shouldn't Davis file a motion to dismiss the complaint as
moot?

 

David S. Cohen

Professor of Law


Thomas R. Kline School of Law

Drexel University 

3320 Market St.

Philadelphia, PA 19104 

Tel: 215.571.4714

 
 drexel.edu | facebook
  | twitter
 

Available NOW
 : Living in the Crosshairs: The Untold Stories of Anti-Abortion
Terrorism (Oxford) 

 

From: conlawprof-boun...@lists.ucla.edu

[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Howard Wasserman
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock;
conlawp...@lists.ucla.edu  ; Michael Dorf;
Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing
licenses

 

But now we're back to the problem we've seen in other states: The named
plaintiffs have received their licenses and this has not (yet) been
certified as a class action. So Davis would not actually be violating the
court's order if she interferes with licenses to non-parties.

 

The plaintiffs filed a motion asking the court to clarify that the
injunction extends to all couples, named or otherwise. But it's not clear he
can do that without the class certification.

 

Howard

 

PS: Please feel free to forward this comment to the Law & Religion list.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 

  _  

From: Marty Lederman  >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman;
conlawp...@lists.ucla.edu  ; Law &
Religion issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses 

 

Contempt order lifted.  Because the deputies are issuing licenses -- which
the judge assumes are valid without Davis's name, since plaintiffs have not
suggested otherwise 

RE: Kim Davis released, given that her Deputies are issuing licenses

[Scarberry, Mark]

If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

But definitely a tentative conclusion.

Best,

Eric

Sent from my iPhone

On Sep 8, 2015, at 1:40 PM, "Doug Laycock" 
> wrote:
I agree that he probably can't issue an order protecting all couples without a 
class certification. But he did it, in the release order:  "Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples." And 
he seems to interpret his September 3 order as also covering "all legally 
eligible couples." And he orders counsel for the deputies to report on 
compliance every two weeks.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: Howard Wasserman [mailto:wasse...@fiu.edu]
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu; Michael Dorf; Josh 
Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses


But now we're back to the problem we've seen in other states: The named 
plaintiffs have received their licenses and this has not (yet) been certified 
as a class action. So Davis would not actually be violating the court's order 
if she interferes with licenses to non-parties.



The plaintiffs filed a motion asking the court to clarify that the injunction 
extends to all couples, named or otherwise. But it's not clear he can do that 
without the class certification.



Howard



PS: Please feel free to forward this comment to the Law & Religion list.



Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130


From: Marty Lederman >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html


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