One week ago, on Sept. 11, Judge Bunning issued the following order when he released Kim Davis from federal custody:
"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. 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." 1. When Davis returned to work on Monday, she ordered Deputy Clerk Brian Mason to change the form of licenses that he issues in Rowan County. The first such license Mason issued on Monday, for example, reads: "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials], Notary Public." There is no indication of the Office from which the license was issued, the County, or Mason's title as Deputy Clerk (and no mention of Davis, of course). From all that appears, Mason issued the license in his capacity as Notary Public, not Deputy Clerk. This is very different from the licenses Mason was issuing while Davis was in custody. 2. Davis's attorney issued a statement on Monday: "The license that went out today does not violate Kim Davis's conscience. If it's satisfactory to the ... court, then I think we will have found that win-win solution that we have been asking for all along." 3. That same day, Democratic Gov. Steve Beshear said that the licenses issued "are going to be recognized as valid in the Commonwealth." 4. Today, counsel for Deputy Clerk Brain Mason filed the following report with Judge Bunning, as the judge had required: Comes now the Hon. Richard A. Hughes, counsel for the Defendant Brian Mason, and CJA having been appointed to represent him in the above styled matter, pursuant to the order of September 8, 2015, makes the following report. Mr. Mason informs me and the record confirms such, that he has issued the appropriate marriage licenses for same-sex marriage pursuant to the court's orders, and has continued to do so in light of changes that had been made by the Clerk, Ms. Davis. He is the only deputy clerk that is doing so by mutual agreement between the others wherein Mr. Mason agreed he would take care of those matters himself if it would ease the stress of the situation, although they all stand ready to do so in his absence as they had promised the court. On September 14, 2015 Ms. Davis came into their office and he [Mason] tells me the following: Kim Davis came to the office and confiscated all the original forms, and provided a changed form which deletes all mentions of the County, fills in one of the blanks that would otherwise be the County with the Court's styling, deletes her name, deletes all of the deputy clerk references, and in place of deputy clerk types in the name of Brian Mason, and has him initial rather than sign. There is now a notarization beside his initials in place of where otherwise signatures would be. I discussed with Mr. Mason in my opinion he had done nothing wrong and is continuing to follow his sworn testimony to the court, however *it also appears to this counsel those changes were made in some attempt to circumvent the court's orders and may have raised to the level of interference against the court's orders*. Mr. Mason is concerned because he is in a difficult position that he continues to issue the licenses per the court's order, but is issuing licenses which had some remote questionable validity, but now with these changes may in fact have some substantial questions about validity. It is part of this report to notify the court of the changes and it is expected there will be other parties to the action that will bring a request to this court for a review on whether or not her [Davis's] actions are against the orders of the court and the likelihood that the validity of these marriages licenses would have to be entertained if not in federal district court, state courts. Again Mr. Mason's concern is he does not want to be the party that is issuing invalid marriage licenses and he is trying to follow the court's mandate as well as his superior ordering him to issue only these changed forms and only with initials and only as notarized, which in the last example I have seen are not even notarized. To date, upon the filing of this report the circumstances remain the same, and counsel addresses this court with the newest information he has available. 5. Also today, in a pleading concerning their motion for class certification, the plaintiffs wrote: Davis has modified the marriage licenses currently provided by her office to state that they are issued only “Pursuant to Federal Court Order #15-CY-44 DLB.” . . . Additional material alterations made by Davis to the licenses issued by her office include requiring her clerk to issue licenses in his capacity as a “notary public” rather than a deputy clerk of the Rowan County Clerk’s Office. . . . These alterations call into question the validity of the marriage licenses issued, create an unconstitutional two-tier system of marriage licenses issued in Kentucky, and do not comply with this Court’s September 3 Order prohibiting Davis from interfering with the issuance of marriage licenses. Plaintiffs are exploring legal options to address these material alterations.
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