If you are wondering "Where does the Kim Davis thing go from here?"... [View all]

[jberryhill]

Rather than do this scattershot, I figured I'd put a bunch of these in one place.

Discussions of the Kim Davis goings-on are frequently punctuated with comments such as "someone should sue her" or various other sentiments to that effect. While I realize that civil procedure is not a subject of popular fascination, I sometimes wonder what folks think got her in front of a judge in the first place.

If you are discriminated against by a government official, you have the right to sue that official under 42 U.S.C. 1983 (https://www.law.cornell.edu/uscode/text/42/1983). That is a federal law that says, "you can sue a government official who violates your constitutional rights and, if you win, your attorney can get paid by the other side". The availability of attorney's fees in 1983 cases is the reason why there are civil rights advocacy groups which refer cases to attorneys. It is a feature of the system. It is why there are attorneys who look for civil rights cases. Granted, there are lots of motivations involved, but the legal profession is one of the few occupations where a substantial portion of the general public doesn't think they should make a living by doing good things. I await the arrival of a plumber to fix my pipes pro bono, or for the state to provide me with a plumber if things get really bad for me.

The interesting thing about the show so far, is that the couples most frequently seen in YouTube videos having their license denied, are NOT plaintiffs in the proceeding which has seen the most action.

Obergefell was decided on June 26, 2015.

The cases pending against Kim Davis in the US District Court for the Eastern District of Kentucky, thus far are:

Miller et al v. Davis et al, 2015-cv-00044, 07/02/2015

Ermold et al v. Davis et al, 2015-cv-00046, 07/10/2015

Yates et al v. Davis et al, 2015-cv-00062, 08/25/2015

The amazing things to me here, are the docket numbers. I can't believe that eastern Kentucky gets an entire US federal district court which, by the end of August had only accumulated 62 civil lawsuits. I guess they must spend the rest of their time busting people for smuggling meth or something, but, dang, I'd love to get a bench where there are only 62 cases with most of year already gone.

I guess that's what happens if your dad pitched a famous no-hitter, and then became a senator.

Adam Yates and Will Smith (the "et al&quot have gotten their license:

?w=650

...thus rendering a good deal of their case moot.

The only things that have happened in their case are that the complaint was filed, the judge assigned, and a subpoena served and returned:

08/25/2015 1 COMPLAINT (Filing fee $400; receipt number 0643-3291855), filed by James Yates, Will Smith. (Attachments: # 1 Civil Cover Sheet, # 2 Case Assignment, # 3 Summons Kim Davis Rowan County Clerk, # 4 Summons Blevins Rowan Co. Judge Executive)(KSS) (Entered: 08/26/2015)

08/25/2015 2 Summons Issued as to Kim Davis, Rowan County, Kentucky; Summons issued and returned to counsel electronically for service. (KSS) (Entered: 08/26/2015)

08/26/2015 Conflict Check run. (KSS) (Entered: 08/26/2015)

08/26/2015 3 ORDER OF RECUSAL: IT IS HEREBY ORDERED that this matter be and hereby is reassigned to Honorable Judge David L. Bunning, Judge of the Eastern District of Kentucky, for all further proceedings. Signed by Judge Henry R. Wilhoit, Jr on 8/26/2015.(KSS)cc: COR (Entered: 08/26/2015)

08/26/2015 ***FILE SUBMITTED TO CHAMBERS of Bunning for review upon entry of 3 Order of Recusal (KSS) (Entered: 08/26/2015)

09/02/2015 4 SUMMONS Returned Executed by James Yates, Will Smith via Certified Mail to Kim Davis served on 8/31/2015, answer due 9/21/2015; Kim Davis served on 8/31/2015, answer due 9/21/2015. (Stilz, William) (Entered: 09/02/2015)

09/02/2015 5 SUMMONS Returned Executed by James Yates, Will Smith via Certified Mail to Rowan County, Kentucky served on 8/31/2015, answer due 9/21/2015. (Stilz, William) (Entered: 09/02/2015)

Given that they have gotten their license and are now married, this case is pretty much a placeholder to recover costs, fees and whatever, if any, compensatory and punitive damages end up on the table.

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The Ermold case, filed by David Ermold and David Moore, involves the couple who made the @SitNextToKimDavis twitter account famous:



They have also now received their license.



Likewise, the Ermold case has been pretty much put on hold, pending the outcome of festivities in the Miller case:


07/10/2015 1 COMPLAINT ( Filing fee $400; receipt number 0643-3257752), filed by David Moore, David Ermold. (Attachments: # 1 Exhibit A Letter of Governor Beshear, # 2 Civil Cover Sheet, # 3 Summons)(SMT) (Additional attachment(s) added on 7/10/2015: # 4 Case Assignment) (SMT). (Entered: 07/10/2015)

07/10/2015 Conflict Check run. (SMT) (Entered: 07/10/2015)

07/10/2015 2 Summons Issued as to Kim Davis, Kim Davis; Summons issued and returned to counsel electronically (SMT) (Entered: 07/10/2015)

07/10/2015 3 ORDER REASSIGNING CASE. Case reassigned to Judge David L. Bunning for all further proceedings. Judge Henry R. Wilhoit, Jr no longer assigned to case. Signed by Judge Henry R. Wilhoit, Jr on 7/10/15.(SMT)cc: COR (Entered: 07/10/2015)

07/10/2015 Conflict Check run. (SMT) (Entered: 07/10/2015)

07/13/2015 4 AFFIDAVIT of Service for Summons served on Kim Davis on 07/10/2015, filed by David Ermold, David Moore. (Szczygielski, Thomas) (Entered: 07/13/2015)

07/22/2015 5 MOTION for Jonathan D. Christman to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266167) (Attachments: # 1 Exhibit A - Certificate of Good Standing)(Christman, Jonathan) (Entered: 07/22/2015)

07/22/2015 6 MOTION for Roger K. Gannam to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266639) (Attachments: # 1 Exhibit A)(Gannam, Roger) (Entered: 07/22/2015)

07/23/2015 BAR STATUS Check completed as to Jonathan D. Christman re 5 MOTION for Jonathan D. Christman to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266167). (SMT) (Entered: 07/23/2015)

07/23/2015 BAR STATUS Check completed as to Roger K. Gannam re 6 MOTION for Roger K. Gannam to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266639). (SMT) (Entered: 07/23/2015)

07/23/2015 NOTICE RE: DOCUMENT CONVERSION REQUIREMENT TO Jonathan Christman re 5 MOTION for Jonathan D. Christman to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266167) ; Error: the pleading was scanned instead of converted into PDF format directly from the native word application. Use a scanner ONLY if you cannot electronically prepare your documents with a word processing software package and convert them to PDF format. No further action required by counsel. cc: COR (SMT) (Entered: 07/23/2015)

07/23/2015 NOTICE OF DOCKET MODIFICATION TO Roger Gannam re 6 MOTION for Roger K. Gannam to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266639) ; Error: attachments were insufficiently described as Exhibit A; Entry by attorney; Correction: the clerk renamed the attachments. Attachments must be adequately described. Exhibit A (Incorrect); Exhibit A Affidavit of John Doe (Correct); No further action required by counsel cc: COR (SMT) (Entered: 07/23/2015)

07/23/2015 ***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 5 MOTION for Jonathan D. Christman to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266167), 6 MOTION for Roger K. Gannam to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643-3266639) (SMT) (Entered: 07/23/2015)

07/23/2015 7 VIRTUAL ORDER: granting 5 Motion to Appear Pro Hac Vice by Jonathan D. Christman; granting 6 Motion to Appear Pro Hac Vice by Roger K. Gannam as counsel for Kim Davis. Signed by Judge David L. Bunning on 7/23/15. (SMT)cc: COR (Entered: 07/23/2015)

07/25/2015 8 NOTICE OF APPEARANCE by Kim Davis, Kim Davis. (Donahue, Anthony) (Entered: 07/25/2015)

07/30/2015 9 Proposed Agreed Order/Stipulation to Extend Time to Respond to Plaintiffs' Complaint by Kim Davis, Kim Davis. (Attachments: # 1 Certificate of Service)(Christman, Jonathan) (Entered: 07/30/2015)

07/31/2015 ***FILE SUBMITTED TO CHAMBERS of Bunning for review: re 9 Proposed Agreed Order/Stipulation to Extend Time to Respond to Plaintiffs' Complaint by Kim Davis, Kim Davis (SMT) (Entered: 07/31/2015)

07/31/2015 10 AGREED STIPULATION TO EXTEND TIME TO RESPOND TO PLAINTIFF COMPLAINT; 1) pla comp was filed on 7/10/15 and served on Davis the same day, ddl to answer is 7/31/15; 2) ddl to answer in 0:15cv44 is 8/4/15; this stip does not affect any ddl in that matter 3) Davis has requested, and pla have agreed to stip to a brief ext to 8/4/15 the same date in the Miller case 4) parties stip to entry of an order by this court to ext Kim Davis answer due 8/4/2015; Kim Davis answer due 8/4/2015. Signed by Judge David L. Bunning on 7/30/15.(SMT)cc: COR (Entered: 07/31/2015)

08/04/2015 11 MOTION to Dismiss by Kim Davis, Kim Davis (Attachments: # 1 Memorandum in Support of Defendant Kim Davis' Motion to Dismiss Plaintiffs' Complaint, # 2 Proposed Order Granting Defendant Kim Davis' Motion to Dismiss Plaintiffs' Complaint)(Christman, Jonathan) (Entered: 08/04/2015)

08/25/2015 12 RESPONSE in Opposition re 11 MOTION to Dismiss by Kim Davis, Kim Davis filed by David Ermold, David Moore. (Buckles, Joseph) (Entered: 08/25/2015)

08/26/2015 13 ORDER re 11 MOTION to Dismiss by Kim Davis, Kim Davis filed by Kim Davis ; briefing is STAYED pending review of the court's decision in Miller v. Davis by the 6CCA; a briefing schedule on the motions will be set by subsequent order after 6CCA renders its decision.. Signed by Judge David L. Bunning on 8/26/15.(SMT)cc: COR (Entered: 08/26/2015)

Now, when you file a lawsuit, you have a number of procedural options, depending on what you are asking for and how soon you want it (if your case merits "really soon" treatment).

The Miller case was filed on behalf of a number of couples whose licenses were denied, requested class action status on behalf of all couples similarly situated, and furthermore was filed with a motion for a preliminary order.

A "preliminary order" is appropriate in circumstances where (a) from a first glance it looks like you have a pretty clear case and there are no important facts in serious dispute, (b) the law is really clear, and (c) it looks like you'll have a good chance of winning when the case is eventually tried. For example, let's say you put a piano on my foot. Now, sure, I can sue you for having done that, but the first thing I'm probably going to want is for the court to order you to get the piano off of my foot. Where (a) it's your piano, (b) you put it there, and (c) it's on my foot, then there is a good chance the court is going to say, "Well, okay, we'll get to the details later, but first get that piano off of his foot." That doesn't get me any money or a final judgment against you, but it does either (a) get the piano off my foot, or (b) get you a contempt ruling if you don't.

So, collectively, all of these cases were assigned to Judge Bunning, and since the Millar case was looking for a preliminary order, the other two have basically been put on ice for the time being since the parties in them have already gotten married, and the eventual outcome in Millar is going to control the outcome in those two other cases. What will be of tangential interest to vultures such as myself is how the judge handles attorney fee awards to the attorneys in the Yates and Ermold cases, if class status is granted in the Miller case, once we eventually get to the "Tell 'em what they've won, Johnny!", phase of the proceedings, which will be quite some time from now absent a settlement of some sort.

Okay, so, having seen the docket in the Yates and Ermold proceedings, I'm going to post the docket of the Miller case in Reply #1 to this post, since it is so long. And I want you to remember what that thing looks like the next time you say, "Some lawyer oughtta file a suit over..." as if lawyers have nothing to do with their spare time.

Thus far, this case has generated three appeals at the 6th Circuit Court of Appeals (the relevant federal appeal court, one notch below the Supreme Court). Appeals to the circuit court are by right, you can appeal anything you like. There are some procedural rules to whether the circuit court is going to give it hefty consideration, such as whether it is a final order, a preliminary order, or some other procedural posture that merits various levels of review.

The first appeal taken was of the court's denial of a stay of the preliminary order that Davis had to end her "no marriage licenses" policy. One of the most misunderstood aspects of this whole circus is that Davis was not denying licenses to same sex couples. She was denying licenses to ALL couples, in order to avoid issuing licenses to same sex couples. Many nitwit observers on the right believe this distinction to make a legal difference. Bottom line - it doesn't. There is no mystery as to why she stopped issuing all licenses.

So, when the preliminary order issued, Davis filed an appeal of the preliminary order, and also filed an appeal of the order denying her request to stay the preliminary order pending the appeal on the order itself. The stay was likewise denied by the 6th Circuit, and by the Supreme Court. The underlying appeal of the order remains pending.

That preliminary order was actually amended slightly, to extend generally to any qualified couple seeking to be married, at the hearing where Davis confirmed her refusal to comply with it, and was placed in custody for contempt. Hence the additional appeal filed in this case is of that order as well.

The Appeal cases before the 6th Circuit are thus:

April Miller, et al v. Kim Davis, 06cae, 15-5880 08/13/2015
" 15-5961 09/01/2015
" 15-5978 09/08/2015

Now, none of these cases are over. Far from it. From a procedural standpoint, despite all of the public festivities thus far, these cases have barely started. Once all the hoopla from the prelminary order in Miller, and its appeals, is over, then the court will take up the motions to dismiss (there are a number of perfunctory grounds for dismissal of a lawsuit), discovery will be scheduled and likely be pretty short since there are few disputed facts anyway, and then there will be motions for summary judgement. Summary judgement is appopriate where there are no disputed issues of fact in the case, and the outcome can be determined by applying relevant law to the collection of undisputed facts. Personally, I cannot imagine any of these cases having triable determinative facts at issue.

The obvious ground for dismissal is mootness as to those plaintiffs who have gone ahead and gotten their licenses. There is still a matter of attorney fees in the Millar case, since a court order issuing from that case was required in order for those plaintiffs to get their licenses. Mootness is not the end of the story though, since this is a situation susceptible to repetition while evading judicial review (Roe v. Wade is a good example of that, since abortion cases tended to work their way through the courts a lot slower than human gestation). By the time the ball gets rolling here, though, the Kentucky legislature would do well to come up with a procedural accomodation of some kind, since the goalpost defining "victory" for Davis and the other clerks is now "getting their name off of the form" instead of being able to deny the issue of licenses to qualified applicants outright.

But if you were wondering "what's next?", the answer is that there is a whole lot more "next" in store, absent a settlement among the parties reduced to an order which ensures that Rowan County will not be denying qualified applicants from obtaining marriage licenses, whatever the mechanics of obtaining those licenses might wind up being.