Kentucky Clerk Kim Davis Never Should Have Gone to Jail

[KamaAina]

http://www.newrepublic.com/article/122758/kentucky-clerk-kim-davis-never-should-have-gone-jail

Judges are guilty of this, too, and recently we have seen two prime examples: the depiction, in David Simon’s HBO miniseries Show Me a Hero, of federal District Judge Leonard Sand’s efforts to enforce housing desegregation in Yonkers, New York, in the 1980s and 1990s; and federal District Judge David Bunning’s punishment of Kim Davis, a clerk in Rowan County, Kentucky, who was jailed last week for refusing to issue marriage licenses to gay couples, then released on Tuesday. In each case, the judge’s focus on demanding a show of submission likely delayed compliance with the underlying principle of equal protection of the laws, and diverted attention from that basic principle to a claim of judicial authority....

So Davis is in the wrong. But once she refused to comply with the court’s order to issue marriage licenses equally, the question became what to do about it. Like many district judges in his position, Judge Bunning chose to initiate the authority-submission cycle. He found Davis in contempt of court and ordered her to jail until she agreed to comply with his original order (or resign). Notably, the plaintiffs in the case—same-sex couples who want to get a marriage license in their home county, as is their right—specifically disavowed any desire to have Davis placed in jail as a contempt sanction. They asked the court to impose financial penalties instead, on the premise that those penalties would eventually encourage Davis to comply with the court’s original order without, presumably, making her into a martyr....

Many members of the public—and even lawyers and judges—assume that contempt is the only power that federal judges have to enforce their orders. That is not true. The Supreme Court has long held that when a defendant fails to comply with an injunction, the court has the power to issue a further order imposing broader obligations, even outside of the contempt process, to ensure compliance. In Rowan County, Bunning could have simply ordered that, if Davis would not carry out her constitutional obligation to issue marriage licenses on an equal basis, she would be forbidden to issue marriage licenses at all. Under Kentucky law, the responsibility for issuing marriage licenses would then devolve onto Rowan County Judge/Executive Walter “Doc” Blevins, who had expressed willingness to issue the licenses on an equal basis. To ensure that Davis did not reap a windfall from that decision, Bunning could have ordered the county to withhold whatever portion of Davis’s salary was attributable to her marriage-license duties and to use that money to reimburse the judge/executive’s office. And she can still be held personally liable for compensatory and even punitive damages for refusing, after the Supreme Court’s decision, to perform her duties because she did not wish to issue marriage licenses to same-sex couples.

Had Bunning followed such a course, he would have ensured that same-sex couples could exercise their constitutional rights to marriage equality. And he would plausibly have achieved that result more quickly—and would certainly have done so with less drama—than by sending Davis to jail for contempt. Once Davis was in jail, her deputies issued marriage licenses to which she had refused to attach her name. Bunning released Davis from jail Tuesday after all of the plaintiffs received their licenses from the deputy clerks, but there remains a dispute over the legal status of licenses signed by the deputies. Judge Bunning could have resolved any question about the legal status of the couples’ marriages, without sending anyone to jail, simply by barring Davis from issuing any marriage licenses and letting the judge/executive do it.

[hollysmom]

1. so she should have been burned at the stake?

A religious martyr should be burned at the stake.

I don't think a judge can rearrange country responsibilities like that and change payroll procedures, that would have ended up in court for a long time. it just does not sound right. This woman was tying things up with appeal to all courts as it was. I am up to hear other opinions though. Certainly ones more knowledgeable than mine.

[Aerows]

4. If I were a vegetarian

should I be allowed to deny you a fishing or hunting license?

[hollysmom]

6. besides having a hard day and being punch drunk, I was questioning the suggestion that a

judge could arbitrarily reassign job duties. Of course I don't support the little law breaker - I wanted her to go down like a real religious martyr - fed to lions or burned at the stake.

[Aerows]

16. I replied to the wrong post and posted in the wrong forum

I messed up and this should have been in cooking and baking

Sorry.

[csziggy]

19. Allowing a county judge to take over marriage licenses is part of the law

In Kentucky:

Marriages
County judges/executive may perform marriage ceremonies. They may also authorize justices of
the peace and fiscal court commissioners in their respective counties to perform marriages
(KRS 402.050). In the absence of the county clerk, the county judge/executive may issue a
marriage license (KRS 402.240).
http://www.lrc.ky.gov/lrcpubs/ib114.pdf

So that would not be a bad solution - if a county judge can be found that is not as pigheaded as Kim Davis. Considering the judge in Oregon that is being weird, the possibilities are endless!

[Old Codger]

2. BUT

I agree she never should have been jailed at all, the monetary side would have actually done much more damage to her overall. If it was devolved to the judge to do that portion of her job she would have in effect been getting away with imposing her religious beliefs on the system,and would not have been upholding her oath of office. She should be impeached for dereliction,and stripped of all benefits including retirement that would be the truly correct way to handle it...

[Erich Bloodaxe BSN]

11. I don't think so.

I think that if he had simply imposed fines, the rw haters of gays would simply have paid those fines for her, through the Samaritan fund or whatever it's called. Tossing her in jail was the only way to make sure she personally had 'skin in the game'.

[Old Codger]

12. I agree

With tossing her in jail to a point only. She is now a martyr in their book, that will allow them to use her as a rallying point and, in their eyes she is now a hero. That is not what we need to happen really. She needs to pay much steeper penalty than a few days in a jail. Losing her job is, in my mind, the only real honest price she should pay, not a few days in jail and not some paltry fine that the mass of idiots that see her as a hero will most likely pay for her. She is guilty of malfeasance and should be tried for that and impeached.

[Frank Cannon]

22. A martyr to whom? Other crazy people.

Her little stunt didn't get get traction with anyone who hadn't already made up their small minds.

[Old Codger]

24. Yep

In her small minded warped world that is all that counts.... has nothing to do with reality or anything we "normally sane" people think or feel...

[Warren DeMontague]

3. Judges don't like it when people refuse to follow a court order. Not hard to understand.

in a country where countless people are languishing in prison for years on end because they were caught smoking pot, this is hardly the most egregious piece of judicial authoritarianism going.

[Aerows]

5. They don't

and it is foolhardy to believe you won't end up in jail on contempt charges if you defy a court ruling.

[marym625]

7. I would assume

The federal judge knows the law and what he can do. If this is correct, then I agree fines and allowing someone else to handle marriage licenses is a good idea.

However, I think he's trying to cause her to either do her sworn duty or resign. Allowing her to just not be paid for what she's not doing, means she won.

Perhaps both should happen. She remains in jail until she does her duty or resigns while the other person hands out the licenses

[Lee-Lee]

8. Issuing marriage licenses is such a small portion of what the clerk does

That withholding her salary pro-rated to just what the portion of her job is marriage licenses wouldn't really have much impact.

[ProfessorGAC]

26. Exactly!

Instead of making $88 grand she'd make $87,600. She wouldn't change her behavior over 8 bucks before taxes per week.

[NV Whino]

9. I think the judge made exactly the right decision.

A fine would have had no effect at all. He is still offering her alternatives, which she appears to be refusing.

[zappaman]

10. I disagree.

Wholeheartedly.

[kelliekat44]

13. So GOP believes in obeying the law until they don't?

Why aren't the Dems putting out ads about how the GOP favors disobeying laws? How about painting the RW fanatics as lawless?

[bullwinkle428]

14. Contempt of court ALWAYS tends to piss off judges!

[PoliticAverse]

15. Why is there dispute over the legal status of the licenses signed by the deputies?

Kentucky law specifically allows deputy clerks to sign licenses:

http://www.lrc.ky.gov/Statutes/statute.aspx?id=36475

1) A marriage license which provides for the entering of:

...

(c) The date and place the license is issued, and the signature of the county clerk
or deputy clerk issuing the license.

The attorney for the county indicated that the licenses issued by the deputy clerks are valid.

[KamaAina]

17. Apparently they changed the name "Kim Davis" to "Rowan County".

[EV_Ares]

18. Jail is way too good for her.

[B Calm]

20. But her jail time proved one thing, the tax payers in her county are

wasting $80,000.00 a year. Her imprisonment proved that she is not needed.

[Frank Cannon]

25. Indeed.

Just another freeloader living off the public dime. And she's got her family involved in this scam.

[gollygee]

21. People are put in jail for much stupider reasons than ignoring a court order

http://www.huffingtonpost.com/2014/10/04/unbelievable-arrest-jail-crimes_n_5921234.html

7. Spitting On The Ground

Here's another common behavior that can actually get you arrested and jailed, at least briefly, depending on where you are. In one more ridiculous incident, Joseph Stoiber was confronted by a police officer while walking around his Florida neighborhood last year. It was around 2 a.m., and the officer was suspicious of what was in Stoiber's pocket, The Ledger reported. The cop asked if he could search Stoiber, but Stoiber refused. According to The Ledger, the officer began to pat Stoiber down anyway, and then Stoiber -- who had chewing tobacco in his mouth -- spat on the ground. It was apparently enough to land Stoiber in jail, where he was released on a $250 bail.

The arresting officer and another officer who later appeared at the scene were eventually disciplined for the pat-down and misconduct during their encounter.

8. Farting

In 2012, school districts in Meridian, Mississippi, came under heavy scrutiny for overseeing what the Justice Department called a "school-to-prison pipeline," in which students were regularly referred to juvenile detention centers for even the most minor infractions. In a letter unveiling the findings of a federal investigation, the Justice Department explained that some students had been incarcerated for things like “dress code violations, flatulence, profanity and disrespect.”

And in 2008, a 13-year-old Florida student was arrested and hauled off to the police station after disrupting class by farting and turning off other kids' computers. He was charged with disruption of school function and later released into the care of his mother.

[geek tragedy]

23. Physically removing her was the only way the law was going to get followed there.

Rejecting the authority of a federal court should have real consequences, not illusory ones like charging her fines someone else will gladly pay on her behalf.