Kim Davis' attorney: Judge's order for release didn't resolve legal issues

GRAYSON, Ky. (Christian Examiner) – The attorney for Rowan County Clerk Kim Davis, who refused to issue marriage licenses to same-sex couples, says his client's release from a Kentucky jail after confinement "for exercising her sincerely-held religious beliefs" is not the end of the legal saga.

Liberty Counsel's Mat Staver said in a statement after Davis' release Sept. 8 that he was pleased his client was no longer in jail for contempt of court, but he added "she can never recover the past six days of her life spent in an isolated jail cell, where she was incarcerated like a common criminal because of her conscience and religious convictions. She is now free to return to her family, her coworkers and the office where she has faithfully served for the past 27 years."

Just before Davis' release, Staver said Liberty Counsel had filed over the weekend an appeal of Judge David Bunning's contempt order with the Sixth Circuit Court of Appeals. Whether or not the circuit court will hear the appeal and lift the contempt charge remains to be seen, but such an outcome is highly unlikely since Davis is now out of jail.

Staver also said he believes his client's due process rights were violated during her interaction with the judge.

"The plaintiffs [the couples requesting licenses] never requested jail but instead requested fines," Staver said. "Judge Bunning limited Kim's response to five pages when the rules allow 20 pages. It appeared that Judge Bunning prearranged for the Carter County Detention Center jailer to be present at the hearing without ever notifying the parties he intended from the outset to send Kim Davis to jail.

The plaintiffs [the couples requesting licenses] never requested jail but instead requested fines. Judge Bunning limited Kim's response to five pages when the rules allow 20 pages. It appeared that Judge Bunning prearranged for the Carter County Detention Center jailer to be present at the hearing without ever notifying the parties he intended from the outset to send Kim Davis to jail. Judge Bunning never provided for lesser fines but went straight to punishment, thus essentially converting a civil contempt into a criminal contempt without notifying Kim Davis. Liberty Counsel also argues that Judge Bunning's Contempt Order violated principles of federalism because he injected the federal government into the management of a state agency. Finally, Liberty Counsel argues the Contempt Order violated the federal Religious Freedom Restoration Act because imprisonment is not the least restrictive means to achieve the government's interest when it infringes on religious freedom.

"Judge Bunning never provided for lesser fines but went straight to punishment, thus essentially converting a civil contempt into a criminal contempt without notifying Kim Davis. Liberty Counsel also argues that Judge Bunning's Contempt Order violated principles of federalism because he injected the federal government into the management of a state agency. Finally, Liberty Counsel argues the Contempt Order violated the federal Religious Freedom Restoration Act because imprisonment is not the least restrictive means to achieve the government's interest when it infringes on religious freedom."

Bunning said at the time he sent Davis to jail that he believed any fines he levied against the clerk would not have a punitive effect since they would likely be paid by others.

One of the reasons Staver alleges Davis's due process rights were violated is that no order for Davis to be incarcerated was written by the judge. In criminal contempt cases, such orders are usually written and the rights of the accused are invoked (a jury trial sometimes takes place, but in most cases defendants have a chance to mount a defense).

Staver wrote in his appeal that the "district court rejected notions that it was holding a criminal proceeding" even though "at the very outset of the hearing, and throughout, the district court repeatedly cited the criminal contempt section (18 USC § 401) as the authority for its contempt proceeding."

Sentences for contempt, however, are rare and hardly ever uniform in nature. Punishments for direct contempt, or for disobedience to a judge in a court room during proceedings, are usually more severe than indirect or "constructive" contempt charges, which are issued for actions outside of the presence of the judge. A judge then has the option of deeming the contempt civil or criminal. A contempt charge is considered criminal if the punishment is seen as a "vindication of the authority of the court and punishment for disobedience already accomplished," according to the U.S. Attorney.

In Davis' case, Bunning found her in direct contempt of a judicial order. He then moved forward with criminal contempt because, he said last week, Davis had defied the Supreme Court in refusing to comply with its directives in Obergefell v. Hodges, the case that legalized same-sex marriage nationwide.

That normally would have resulted in a written charge to which Davis and her attorney could respond. However, according to federal criminal contempt procedure, a judge is not required to negotiate a punishment once he determines defiance of a court order has occurred.

While Davis was in jail, Bunning inquired of the employees of the Rowan County clerk's office to determine if they objected to issuing marriage licenses to same-sex couples. Five of the six said they would; the lone dissenter was Davis's son. The office has since issued the licenses.

Staver, however, has said the marriage licenses Rowan County issued are invalid because they do not bear the signature of the county clerk.

Judge Bunning seems to think they are. In his two-page order, Bunning wrote that though the marriage licenses "have been altered so that 'Rowan County' rather than 'Kim Davis' appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court's finding that the deputy clerks have complied with the Court's Order."

Bunning also said in the ruling Davis will remain out of jail as long as she does not interfere "directly or indirectly" with the issuance of marriage licenses in Rowan County.