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Kim Davis update--The left doubles down

I spoke too soon. In my previous post I expressed pleasure that Brian Mason, Kim Davis's deputy clerk who is issuing homosexual couples marriage licenses, had cooperated with her in altering the form. But it turns out he isn't. He and his lawyer are worried about the fact that the forms may be invalid--which I agree, they may be. But they aren't willing to just sit around being worried and being glad that the federal judge doesn't seem worried enough to threaten to throw Davis and/or Mason in jail. No, Mason, acting through his lawyer, has pro-actively attempted to get Davis in more trouble by a court filing alleging that the licenses are now invalid though they were valid when issued during Davis's imprisonment with the (factually false) statement that they were authorized by the county clerk.

The legal reasoning here is a tad tortuous. The forms that stated they were issued under the authorization of the "county clerk" were valid even though that was false? But now that they have been altered to remove that authorization they aren't valid? The best I can do at an argument for this is to say that the earlier forms did contain a false statement (that they were issued under the county clerk's authorization) and therefore did not bear on their face their legally questionable nature! One would have to know the legal circumstances surrounding the date of issue in order to raise a doubt about them.

In any event, I am disgusted at Brian Mason's actions. If Judge Bunning didn't consider the validity issue worth his while to get involved in spontaneously, it is sheer mischief-making for Mason to attempt to force Bunning's hand. Davis has announced to all the world that the licenses are dubiously valid. She said the same about the licenses issued without her authorization that falsely said they were authorized by her! Couples who nonetheless (probably for reasons of making a political statement) come and get the licenses from her office are taking their own risks with full knowledge. And Mason is free to raise such doubts verbally as well when he hands out the papers, in the interests of full disclosure. But to attempt to get Davis thrown back in jail is petty. Moreover, given that Bunning has made no move on the matter spontaneously, it is rather transparently false for Mason to say that his lawyer's new filing is done out of fear that Bunning will jail him. Bunning is perfectly capable of taking action on his own if he thinks someone needs to be jailed! He did it once already. Mason and his lawyer are trying to raise a problem where the judge doesn't seem to think one exists, and this brings up the very real possibility that they are doing so for ideological reasons.

The ACLU has filed in agreement with Mason that Davis has violated the court order. No surprise there.

Comments (8)

Two points. First, I have been in a position where an official form was put in front of me to sign, and it simply did NOT represent the facts. I altered the form, made it correctly state the right things, got rid of the "official form XX-YYY" on the bottom, and changed the title of the document from "Form XX" to "Information Sheet" or something like that. Then I signed it and handed it over. And I explicitly told the official I was not handing them a Form XX.

Since I was not representing that the document I signed is the official form, I did not commit any fraud or anything related to it in NOT using the official form. I wasn't using the official form because the official form was doing something that wasn't appropriate to what I intended to do, so I refused to use it. (It was a minor issue and the recipient chose not to make an issue of it. It was mainly to record that an approval had been obtained, and my document explained why the approval the official form was meant to report did not apply in my case.) The point is, making a different document is not necessarily out of order - as long as you go about it the right way.

When she returned to work, Davis altered the marriage forms by removing her name, making deputy clerk Brian Mason initial the form instead of sign it, and then requiring the form to be notarized.

Either the new document created by Davis is a marriage license or not.

I don't know if Davis left the words "Marriage License" at the top, or anything like that. If she didn't, but created a document that doesn't even purport to be the Marriage License" specified by the state of Kentucky, then all it is is some voluntary piece of paper. If it isn't a marriage license, Brian Mason can use it without claiming it constitutes a marriage license. It is just a document. What's the big deal?

If they ARE marriage licenses (even though different from the usual form) then he can use them as marriage licenses. What's the problem?

If Brian Mason thinks that the ORIGINAL forms, with her name on them, are valid when he signs them against her direct orders, he is free to continue to try to sign them against her direct orders. This would be just as disobedient now as it was when she was in jail, I don't see how her getting out of jail changes that. The fact that she has now directed him to use some other document means he can either use that other document AND disobediently issue the false licenses with her name (and thereby issue - in his mind - licenses that are just as valid as the ones issued while she was in jail), or he can obediently use the new document WITHOUT also issuing a false license with her name, or he can just refuse both altogether. She STILL hasn't given her OK for him to issue a license in her name, so his attempt to use the old form would not constitute any NEW kind of disobedience on his part. He was willing before, what's the problem? He hasn't the manhood to defy her to her face? Wow, that's a real story to tell the guys: my female boss went to jail for standing up for what she believes in, and I disobeyed her while she was in jail but I stopped when she got out.

Second point: I don't think the answer to the legal question can be had without understanding what it is to be a "deputy".

When you freely deputize someone to act for you, you mean that they can make the decisions and judgment calls that you decide to put in their hands. If you deputize them explicitly for X purpose, and not for X + Y purposes, they are not acting as a deputy if they make a determination about Y. However, anything and everything they decide about X, as long as those decisions are not contrary to your instructions to them, are made "under your authority." When you are free to deputize or not deputize someone to stand in your stead, and you do so, you are conceding them permission to act FOR you. So, when they act, they act WITH your authority and the decision made is then made UNDER your authority - even if it is not the exact same decision you might have made.

However, if you entirely are free to deputize or not deputize someone and you appoint them your deputy on an ad hoc basis, and if they act against explicit and direct orders, such act is not made under your authority. In certain contexts at least, if you can substantiate that you ordered them NOT to approve Z, and they went ahead and did it anyway, that act of theirs can be legally determined to be unauthorized and void. Certainly in the moral sense (apart from the legal sense) if your deputy defies your express orders about a matter under your jurisdiction, their act is certainly not made "under your authority". Otherwise there could no meaning to deputizing and delegating authority.

However, there are a couple of ways this can become muddy. If you hold an appointed position, and whoever appoints you ALSO appoints someone to act as your stand-in, as your "deputy", this implies that the deputy has at least some kind of authority to act without getting it from you. If you are hurt and they step into your role, they can act even directly contrary to your express wishes without such an act being invalidated, because their authority to act isn't your authority to begin with.

Secondly, if the role of "deputy clerk" is expressly determined by state law, and your capacity as clerk is solely whether to hire someone on to that post, not to prescribe their duties, then again the deputy doesn't get their authority to act from your giving them orders, they get it from the state law that erects their position. So again, such a deputy could defy your express orders because their authority to act isn't from you to begin with.

So which type of arrangement is the Kentucky deputy county clerk? I can't tell. The only think I can find that seems (very) remotely on point is this rather cryptic statute:

The office of county clerk, rather than the individual holder of the office, shall be liable for the acts or omissions of deputy clerks. When a deputy clerk omits to act or acts in such a way as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk shall be liable to the clerk for all damages and costs which are caused by the deputy's act or omission.

Whether the clerk appoints a deputy or not, and the salary paid, seem to be up to the county officials. I don't think that I would be able to easily establish that deputy clerks have state-mandated roles and authority to act independently of the clerk's authority, simply by virtue of the office of deputy.

If that's the right conclusion (and I don't hold it at all strongly), then whether or not Davis "interfered" with the deputies after she got out of jail, they STILL had no authority to issue a license in direct contravention of her express orders. And if that is so, her creating a new document that the deputies could give out DID NOTHING for or against their ability to issue the ordinary marriage license - the new document (and orders to use it) didn't "take away" any prior power they had to use the standard license, because they didn't have any such authority once she told them back in June not to issue licenses under her name.

Deputy Mason may think he is out-witting her on this. I don't see how.

So Davis is Mason's boss right? And by law in Kentucky isn't Davis ultimately the one responsible for what is and is not on the licenses for Rowan County? She was elected county clerk right? And isn't the job description of deputies something like acting under the supervision of the elected county clerk?

In other words, Mason needs to do his job or resign.

I suspect that she _would_ fire Mason if he kept issuing the unchanged form or the only-partially-changed form stating that this is issued under her authorization (since it's not). That seems to be the implication, though left tacit. Presumably that is the ground for his complaining to the court.

What seems so back-stabbing about it to me is that the court was taking no notice of these new changes, though presumably the judge read about them in the news or could have done so just like the rest of us. All previous indications were that the judge was making no attempt to draw conclusions about the question of legal validity, that being a matter of Kentucky law and he being a federal judge. Of course, that's weird, because there was the definite appearance that the judge was _creating_ as situation in which legally invalid licenses were being issued. But that was precisely the problem the judge raised by inducing the clerks (under threat of jail) to issue licenses while Davis was in jail and refusing to authorize them! Once pieces of paper were being handed out, however, the judge appeared to wash his hands of all potential consequences from their possible invalidity. Mason is now trying to _force_ the judge to take notice of the changes and to put further pressure on Davis. The pretense that he is afraid that _he_ will get in trouble from the judge if he doesn't loudly insist that the judge take notice is very shaky. I think Mason is retaliating against Davis, despite her having been so explicitly non-retaliatory against him.

I thought today's reading at mass was on point for this, (Wisdom 2:12 and 17:20):

The wicked say:
Let us beset the just one, because he is obnoxious to us;
he sets himself against our doings,
reproaches us for transgressions of the law
and charges us with violations of our training.
Let us see whether his words be true;
let us find out what will happen to him.
For if the just one be the son of God, God will defend him
and deliver him from the hand of his foes.
With revilement and torture let us put the just one to the test
that we may have proof of his gentleness
and try his patience.
Let us condemn him to a shameful death;
for according to his own words, God will take care of him.

And by law in Kentucky isn't Davis ultimately the one responsible for what is and is not on the licenses for Rowan County?

GW, Kentucky state law is pretty explicit about what information must be on the marriage license. It specifies further that such license constitutes an authorization by the county clerk for a duly appointed wedding minister to administer the vows. It further specifies that the county clerk is to use the form set out by the Department for Libraries and Archives. It seems probable that if Davis made up her own form that is significantly unlike the form specified by the Department for Libraries and Archives, and calls that a "Marriage License", she is stepping well outside her legal authority.

If I were in her position, and like her trying to deflect the problem by making the document different, I would (a) take off the name "Marriage License", (b) put in a substitute title, something like "Record of Legal Status for Marriage" or something along those lines, (c) put in language that specifies that the applicant meets all of the requirements under Kentucky law for getting married EXCEPT that of being man and woman, (d) cite the Kentucky law that requires the couple to be man and woman, (e) and cite that the Supreme Court (and local federal court) rulings that purport to dismiss that last requirement. I might or might not attempt to go on to say something like "if, under Kentucky law, the complementarity of the sexes of the couple is irrelevant, then this document records that the couple specified have met the requirements for marriage under the authority of the state of Kentucky. No implication is made herein regarding the clerk of this county's authorization for marriage."

The Buzzfeed photo linked from my previous post shows that the phrase "Marriage License" is still on the bottom. My own opinion though is that it is morally permissible for her _not_ to fire her deputy for issuing it, because a) she isn't authorizing its issuance, b) she has called attention to its possible legal invalidity herself, c) it now doesn't say she's authorizing it. In other words, it isn't as though _she_ is calling that a marriage license. If it were up to her, these documents wouldn't be given out either. She tried to work this out as a compromise with her deputy who was determined to issue _something_ called a "marriage license" and even said he would do so against her orders. Her idea seems to be that, if he insists on issuing something called a "marriage license," then it cannot be done as authorized by her. That does, of course, call its validity into question, but his issuing it against her authority while she was in jail already did so. This merely makes explicit on the form the fact that this is being done without her authorization. It thus makes the form to that degree more honest.

So much for trying to work things out with the deputy. Now he's trying to get her in trouble for not continuing to allow the lying forms to be issued--the ones that said they were issued by the authorization of the county clerk.

So much for trying to work things out with the deputy. Now he's trying to get her in trouble for not continuing to allow the lying forms to be issued--the ones that said they were issued by the authorization of the county clerk.

I wonder what she actually told this guy. For example, suppose she just said "Whatever you do, YOU MAY NOT TELL A LIE FROM THIS OFFICE. You know that I do not and will not authorize gay "marriages". So if you, personally, issue a marriage license to gays which says "authorized by the Rowan County clerk" you will be telling a lie. Since I forbid you to tell a lie in an official act, what are you going to do?"

In other words, if she got it as part of the record that her direct orders were to forbid his using public documents to tell a lie, what is he going to accuse her of? "My mean old nasty boss won't let me tell official lies"?

The whole approach is very postmodern, so the whole notion of telling a lie is irrelevant. And that's what really undermines the rule of law.

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