Post on 09-Apr-2018
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION
APRIL MILLER, ET AL.,
Plaintiffs,
v.
KIM DAVIS, ET AL.,
Defendants.
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CIVIL ACTION
0:15-CV-00044-DLB
DISTRICT JUDGE
DAVID L. BUNNING
KIM DAVIS,
Third-Party Plaintiff,
v.
STEVEN L. BESHEAR, in his official
capacity as Governor of Kentucky, and
WAYNE ONKST, in his official capacity
as State Librarian and Commissioner,
Kentucky Department for Libraries and
Archives,
Third-Party Defendants.
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EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND
MOTION TO STAY SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL
Pursuant to Local Rule 7.1 and Federal Rule of Appellate Procedure 8(a)(1),
Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned counsel,
hereby moves on an expedited basis for this Court to enter a stay of the September 3, 2015
injunction order (D.E. 74) pending appeal of that order to the Sixth Circuit. Because this matter
has been fully briefed in the Sixth Circuit, Davis asks this Court for an expedited decision on
Case: 0:15-cv-00044-DLB Doc #: 113 Filed: 09/18/15 Page: 1 of 4 - Page ID#: 2200
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her stay motion. In support thereof, Davis incorporates by reference the memorandum of law that
is attached to this Motion, and her prior briefing on this same motion to the Sixth Circuit.
Davis originally filed this motion in the Sixth Circuit on September 11, 2015 based in large
part upon this Court’s consideration of the request for an expanded injunction without notice and
its remarks at the September 3, 2015 hearing, including: “We’ll just include that [the order
expanding the original injunction] as part of the appeal. . . . And the Sixth Circuit can certainly
decide if that’s appropriate.” D.E.78, Contempt Hr’g, PgID 1580-81 (emphasis added). Based
upon the district court’s actions and foregoing statements, Davis understood a motion for a stay of
the expanded injunction to be “impracticable” under Federal Rule of Appellate Procedure 8(a)(1),
and sought relief from the Sixth Circuit.1 An expedited briefing schedule was set on this motion in
the Sixth Circuit. On September 15, 2015, Plaintiffs and the Third-Party Defendants filed response
briefs to Davis’ emergency motion for a stay of the expanded injunction.2 On September 16, 2015,
Davis filed her reply brief.3 On September 17, 2015, the Sixth Circuit denied Davis’ motion for a
stay because Davis “has not sought a stay pending appeal in the district court as required by Federal
Rule of Appellate Procedure 8(a)(1),” and concluded that it would not be impracticable for Davis
to move this Court for a stay pending appeal.4
Accordingly, Davis now moves this Court for immediate and expedited consideration of
her Motion to Stay this Court’s September 3, 2015 injunction order. As noted above, the matter is
already substantively briefed by the parties. See Exs. A-D. Therefore, Davis asks for an expedited
decision from this Court on her Motion.
1 A copy of Davis’ Motion to Stay filed in the Sixth Circuit (without exhibits) is attached as Exhibit “A.” 2 A copy of the Plaintiffs’ and Third-Party Defendants’ response briefs are attached as Exhibits “B” and “C,”
respectively. 3 A copy of Davis’ reply brief in support of the Motion to Stay is attached as Exhibit “D.” 4 A copy of the Sixth Circuit’s order dated September 17, 2015 is attached as Exhibit “E.”
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WHEREFORE, Defendant/Third-Party Plaintiff Kim Davis respectfully requests that this
Court enter an order staying its September 3, 2015 injunction order pending appeal, in the form of
the proposed order attached hereto.
DATED: September 18, 2015 Respectfully submitted:
A.C. Donahue
Donahue Law Group, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
Tel: (606) 677-2741
Fax: (606) 678-2977
ACDonahue@DonahueLawGroup.com
/s/ Jonathan D. Christman
Horatio G. Mihet
Roger K. Gannam
Jonathan D. Christman
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
Tel: (800) 671-1776
Fax: (407) 875-0770
hmihet@lc.org
rgannam@lc.org
jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff
Kim Davis
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF
filing system and therefore service will be effectuated by the Court’s electronic notification system
upon all counsel or parties of record:
Daniel J. Canon Jeffrey C. Mando
L. Joe Dunman Claire Parsons
Laura E. Landenwich ADAMS, STEPNER, WOLTERMANN &
CLAY DANIEL WALTON ADAMS, PLC DUSING, PLLC
462 S. Fourth Street, Suite 101 40 West Pike Street
Louisville, KY 40202 Covington, KY 41011
dan@justiceky.com jmando@aswdlaw.com
joe@justiceky.com cparsons@aswdlaw.com
laura@justiceky.com
Attorneys for Defendant Rowan County
William Ellis Sharp
ACLU OF KENTUCKY William M. Lear, Jr.
315 Guthrie Street, Suite 300 Palmer G. Vance II
Louisville, KY 40202 STOLL KEENON OGDEN PLLC
sharp@aclu-ky.org 300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
Attorneys for Plaintiffs william.lear@skofirm.com
gene.vance@skofirm.com
Attorneys for Third-Party Defendants Steven
L. Beshear, Governor of Kentucky, and
Wayne Onkst, State Librarian and
Commissioner for Kentucky Department for
Libraries and Archives
DATED: September 18, 2015 /s/ Jonathan D. Christman
Jonathan D. Christman
Attorney for Defendant/Third-Party Plaintiff
Kim Davis
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION
APRIL MILLER, ET AL.,
Plaintiffs,
v.
KIM DAVIS, ET AL.,
Defendants.
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CIVIL ACTION
0:15-CV-00044-DLB
DISTRICT JUDGE
DAVID L. BUNNING
KIM DAVIS,
Third-Party Plaintiff,
v.
STEVEN L. BESHEAR, in his official
capacity as Governor of Kentucky, and
WAYNE ONKST, in his official capacity
as State Librarian and Commissioner,
Kentucky Department for Libraries and
Archives,
Third-Party Defendants.
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DEFENDANT/THIRD-PARTY PLAINTIFF KIM DAVIS’ MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO
STAY SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL
Horatio G. Mihet A.C. Donahue
Roger K. Gannam DONAHUE LAW GROUP, P.S.C.
Jonathan D. Christman P.O. Box 659
LIBERTY COUNSEL Somerset, Kentucky 42502
P.O. Box 540774 Tel: (606) 677-2741
Orlando, Florida 32854 Fax: (606) 678-2977
Tel: (800) 671-1776 ACDonahue@DonahueLawGroup.com
Fax: (407) 875-0770
hmihet@lc.org / rgannam@lc.org /
jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff Kim Davis
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Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned
counsel, respectfully submits this Memorandum of Law in Support of her Emergency Motion for
Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order Pending Appeal.
I. INTRODUCTION
On August 12, 2015, this Court entered a preliminary injunction ordering Davis to issue
marriage licenses to the named Plaintiffs (hereinafter, the “Injunction”). Davis immediately filed
a notice of appeal of the Injunction, bringing it within the jurisdiction of the Sixth Circuit, and
depriving this Court of jurisdiction to alter or expand the Injunction’s scope. But this Court did
just that, without fair notice or hearing, by entering a new injunction order on September 3, 2015
that materially expanded the original Injunction while it was already on appeal to the Sixth Circuit
(hereinafter, the “Expanded Injunction”). When this Court granted the Expanded Injunction, this
Court expressly acknowledged that the Expanded Injunction was relief that Plaintiffs “did not
request” in the “original motion” for a preliminary injunction, and which this Court did not grant
in its original Injunction.1 In fact, just seven days ago, this Court confirmed that its September 3,
2015 order undeniably “expanded its ruling” already on appeal to the Sixth Circuit.2 The
Expanded Injunction abrogates well-established principles of jurisdiction and due process in the
federal court system while an appeal is pending.
Davis timely appealed the Expanded Injunction to the Sixth Circuit, and sought an
emergency stay of the Expanded Injunction. Quite apart from Davis’ religious liberty interests
involved in her appeal of the original Injunction on the merits, her appeal of the Expanded
1 See D.E. 78, Contempt Hr’g, PgID 1578:20-25. 2 See D.E. 103, Sept. 11, 2015 Order, PgID 2177 (emphasis added).
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Injunction, and her request for stay of the Expanded Injunction, involve only the issue of this
Court’s acting without jurisdiction.
Davis originally filed her motion to stay the Expanded Injunction in the Sixth Circuit based
in large part upon this Court’s consideration of the request for an expanded injunction without
notice and its remarks at the September 3, 2015 hearing, including: “We’ll just include that [the
order expanding the original injunction] as part of the appeal. . . . And the Sixth Circuit can
certainly decide if that’s appropriate.”3 Based upon this Court’s actions and foregoing
statements, Davis understood a motion for a stay of the expanded injunction to be “impracticable”
under Federal Rule of Appellate Procedure 8(a)(1), and sought relief directly from the Sixth
Circuit. On September 17, 2015, after full briefing on the motion and despite this Court’s foregoing
directive, the Sixth Circuit denied on technical grounds Davis’ motion for a stay because Davis
did not first seek a stay pending appeal in this Court. Davis now timely moves this Court for
immediate consideration and to stay its far-reaching expansion of the original Injunction pending
the Sixth Circuit’s decision on the merits of Davis’ appeal of the Expanded Injunction. Because
this matter has been fully briefed in the Sixth Circuit, Davis asks this Court for an expedited
decision on her stay motion.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Injunction.
On July 2, 2015, less than one week after the Supreme Court decided Obergefell v. Hodges
and the Kentucky Governor issued a directive ordering all county clerks to personally authorize
the issuance of Kentucky marriage licenses to same-sex couples, Plaintiffs filed this lawsuit
demanding that Davis authorize and approve their Kentucky marriage licenses, despite widespread
3 See D.E.78, Contempt Hr’g, PgID 1580-81 (emphasis added).
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availability of licenses and Davis’ undisputed religious conscience objection to same-sex
“marriage.”4 D.E. 1, Compl.
Plaintiffs filed the action on behalf of themselves and a putative class consisting of “all
present and future individuals who, though legally eligible to marry in Kentucky, will be denied a
marriage license pursuant to the Defendant’s policy.” D.E. 1, Compl., PgID 9. “Named Plaintiffs”
also moved for a preliminary injunction to bar Davis “from enforcing the challenged policy of
refusing to issue marriage licenses against them” D.E. 2, Pls.’ Mot. Prelim. Inj., PgID 34
(emphasis added)), and submitted a proposed Order enjoining Davis “from enforcing the policy of
refusing to issue marriage licenses to any future marriage license applications submitted by the
Named Plaintiffs” D.E. 2-2, Proposed Prelim. Inj. Order (emphasis added).
This Court scheduled a full evidentiary hearing on the injunction motion, to occur on July
13, 2015—just eleven days after the motion was filed. D.E. 5, Order. Plaintiffs did not, however,
obtain service of process on Davis prior to the hearing. D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015,
PgID 105:15-107:7. Thus, Davis’ counsel appeared specially and objected to this Court’s
proceeding with the hearing, without having obtained jurisdiction over Davis through service of
process. D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2, 117:1-10.
This Court overruled counsel’s objection to proceeding without Davis, took evidence, and heard
argument on Plaintiffs’ preliminary injunction motion. D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015,
PgID 117:1-119:7. After allowing all of Plaintiffs’ evidence and hearing argument, this Court
“continued in progress” the July 13, 2015 hearing (D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015,
PgID 207:2-4), and concluded the hearing on July 20, 2015 (D.E. 26, Prelim. Inj. Hr’g Tr. July 20,
4 Expressly to avoid disparate treatment of any couple, Davis discontinued the issuance of all marriage licenses
after Obergefell. D.E. 26, Prelim. Inj. Hr’g Tr. July 20, 2015, PgID 259:6-16.
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2015). Plaintiffs’ evidence at both hearings was limited exclusively to the named Plaintiffs’
claims.5
On August 12, 2015, this Court granted Plaintiffs’ motion for preliminary injunction by its
Memorandum Opinion and Order. D.E. 43. Exactly as requested by Plaintiffs in their motion and
proposed order (D.E. 2, 2-2), the Injunction enjoins Davis “from applying her ‘no marriage
licenses’ policy to future marriage license requests submitted by Plaintiffs.” D.E. 43, Inj., PgID
1173 (emphasis added).) Thus, there was complete agreement between what Plaintiffs requested
and what this Court ordered.6
B. Plaintiffs’ Request For Class Certification.
On August 2, 2015, Plaintiffs filed a motion for class certification. D.E. 31, Pls.’ Mot. Class
Cert. On August 11, 2015, Davis filed a motion for extension of time to respond to Plaintiffs’ class
certification motion, requesting that the Court set a response date for ninety (90) days after this
Court ruled on all of the motions pending before this Court at that time.7 D.E. 42, Mot. Ext. Time
Respond. Plaintiffs filed no written opposition to this motion in the time allotted under the
Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs’ time to oppose expired,
showing that “Plaintiffs’ failure to file a timely written opposition constitutes a waiver of any
5 Because the relief sought by Plaintiffs in their preliminary injunction motion was personal to them, no
evidence was presented on their Complaint’s class allegations or request for class-wide relief. Plaintiffs did not file
their motion for class certification until August 2, 2015. 6 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction motion against Davis, this Court
scheduled no preliminary injunction hearing on Davis’ own motion for preliminary injunction against Third-Party
Defendants Gov. Beshear and Commr. Onkst (D.E. 39), and effectively denied the motion by ordering a stay (on the
court’s own motion) of all proceedings on Davis’ motion pending the Sixth Circuit’s decision on the merits of Davis’
appeal of the Injunction against her. D.E. 58, Order Aug. 25, 2015, PgID 1289. Davis appealed to the Sixth Circuit
this Court’s effectual denial of her preliminary injunction motion (D.E. 66, Notice of Appeal), which appeal is
docketed in that Court at Case No. 15-5961. Gov. Beshear and Commr. Onkst filed a motion to dismiss that appeal,
which the Sixth Circuit denied on September 15, 2015. 7 These pending motions included Plaintiffs’ motion for preliminary injunction (D.E. 2), Davis’ motion to
dismiss Plaintiffs’ Complaint (D.E. 32), and Davis’ motion for preliminary injunction (D.E. 39).
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opposition to Davis’ motion for extension of time.” D.E. 56, Reply Br. Supp. Mot. Ext. Time
Respond, PgID 1289.
On August 25, 2015, this Court granted Davis’ motion for extension of time. D.E. 57,
Virtual Order Aug. 25, 2015 (“Plaintiffs having filed no opposition to the MOTION, IT IS
ORDERED that Defendant Davis’ response to said motion is due 30 days after the Sixth Circuit
Court of Appeals renders its decision on the appeal of the Court's granting of Plaintiffs’ motion
for a preliminary injunction.”) (emphasis added). The effect of this order was to stay all
proceedings on Plaintiffs’ class certification motion until the Sixth Circuit decides the appeal of
the Injunction on the merits.
C. Plaintiffs’ Motion To “Clarify” The Injunction And The “Hearing.”
Despite the unambiguous agreement between what Plaintiffs requested in their motion for
preliminary injunction and what this Court granted in the Injunction, Plaintiffs manufactured a
disingenuous motion to “clarify” the Injunction to encompass a class of persons not covered by
the Injunction. D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj. Specifically, Plaintiffs moved:
for an order to clarify or, in the alternative, to modify the preliminary
injunction to state unambiguously that the preliminary injunction
applies not only to future marriage license requests submitted by
the four named Plaintiff couples in this action, but also to
requests submitted by other individuals who are legally eligible
to marry in Kentucky.
D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1488 (emphasis added). Thus, rather than a motion
to “clarify,” Plaintiffs actually sought to convert the Injunction’s relief, which was limited and
personal to them by their own request, into a class-wide preliminary injunction even though (1)
they had never previously requested a class-wide injunction (D.E. 2-2, Proposed Prelim. Inj.
Order), (2) they presented no actual evidence regarding the purported “other members of the
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putative class” (D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489); and (3) their actual motion
for class certification was stayed (D.E. 57, Virtual Order Aug. 25, 2015).
Plaintiffs filed their motion to “clarify” the Injunction on September 1, 2015, three weeks
after this Court entered its Injunction. D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1488-91.
Moreover, Plaintiffs’ motion to “clarify” was filed on the heels of, or “contemporaneously with”
(Plaintiffs’ words), their motion to hold Davis in contempt of court for violating the Injunction by
failing to authorize a marriage license for one Plaintiff couple. D.E. 67, Pls.’ Contempt Mot.
Within minutes of Plaintiffs’ filing the contempt motion, this Court scheduled a contempt hearing
to occur two days later, ordered Davis and all of her deputy clerks to be present at the hearing, and
limited Davis to filing a five-page opposition by close of business the next day (which Davis did).8
D.E. 69, Order Sept. 1, 2015, PgID 1496; see also D.E. 72, Contempt Resp., PgID 1540-46.
Approximately forty-eight hours later, on September 3, 2015, this Court commenced the
hearing it had exclusively noticed for Plaintiffs’ contempt motion. D.E. 69, Order Sept. 1, 2015,
PgID 1496 (“IT IS ORDERED that this matter be, and is, hereby set for a hearing on Plaintiff's
Motion to Hold Defendant Kim Davis in Contempt of Court DE[67] on Thursday, September 3,
2015 at 11:00 a.m. in Ashland, Kentucky.”); D.E. 78, Contempt Hr’g. Before taking up the
contempt motion, however, and without any advance notice to Davis, this Court called up
Plaintiffs’ motion to “clarify” the Injunction. D.E. 78, Contempt Hr’g, PgID 1570:21-1571:22,
1572:19-1573:19. Davis’ counsel objected to proceeding on the motion to “clarify” due to lack of
fair notice, and due to this Court’s lack of jurisdiction to expand the Injunction because it was
already on appeal. D.E. 78, Contempt Hr’g, PgID 1573:20-1580:19.
8 In her response brief opposing Plaintiffs’ contempt motion, Davis specifically stated that she opposed
Plaintiffs’ thinly-veiled motion to “clarify” the Injunction, and intended to file a written opposition in accordance with
the Local Rules (21 days after service). D.E. 72, Contempt Resp., PgID 1542.
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This Court acknowledged that the motion to “clarify” was not noticed for hearing. D.E. 78,
Contempt Hr’g, PgID 1571:18-20 (“The case wasn’t noticed for that hearing.”). This Court also
acknowledged that the so-called “clarification” sought by Plaintiffs was, in fact, to add relief to
the Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. D.E.
78, Contempt Hr’g, PgID 1578:20-25 (“I recognize they did not request it in the original
motion.” (emphasis added). Nonetheless, over Davis’ objection, and without taking any evidence
to support this class-wide relief, this Court granted the expansion of the Injunction. D.E. 78,
Contempt Hr’g, PgID 1580:3-15. After expanding the Injunction, this Court immediately passed
the issue to the Sixth Circuit. D.E. 78, Contempt Hr’g, PgID 1580-81 (“We’ll just include that as
part of the appeal. . . . And the Sixth Circuit can certainly decide if that’s appropriate.”).
Having expanded the Injunction, this Court then proceeded with hearing the only motion
the court noticed for hearing, Plaintiffs’ contempt motion. D.E. 78, Contempt Hr’g, PgID 1581:18-
19 (“Let me now turn to the actual merits of the matter that’s before the Court.”). The court ordered
Davis to jail as a contempt sanction for Davis’ refusal to issue a marriage license, in violation of
her conscience, to one Plaintiff couple.9 D.E. 78, Contempt Hr’g, PgID 1659:22-1661:25. The
condition for Davis’ release would be her compliance with the Expanded Injunction, not the
original Injunction D.E. 78, Contempt Hr’g, PgID 1661:18-1662:16. This Court then appointed
criminal defense counsel for each of Davis’ deputy clerks—all of whom had been summoned in
advance to the hearing—and interrogated each deputy clerk as to whether each of them would
9 This Court memorialized this most severe of contempt sanctions against Davis by a mere “minutes” order
(D.E. 75 (the “Contempt Order”)); no formal written order has been entered. (D.E. 78, Contempt Hr’g, PgID 1651:21-
24 (“I haven’t decided if I’m going to enter a written order or not. I probably will enter some sort of written order
following up the Court’s decision.”).) Davis separately appealed the Contempt Order to the Sixth Circuit (D.E. 83,
Contempt Order Notice of Appeal), which appeal has been docketed as Case No. 15-5978.
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issue marriage licenses without Davis’ authorization. D.E. 78, Contempt Hr’g, PgID 1667:19-
1730:6.
On September 8, 2015, the sixth day of Davis’ incarceration, Plaintiffs filed a status report,
showing this Court that the Plaintiffs had received marriage licenses from the deputy clerks.10 D.E.
84, Status Report. Following the status report, this Court ordered Davis released, stating in its order
the court was “satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue
marriage licenses” under the Injunction. D.E. 89 (the “Release Order”), PgID 1827-28. The
Release Order commands, however, “Davis shall not interfere in any way, directly or indirectly,
with the efforts of her deputy clerks to issue marriage licenses,” on pain of new sanctions for
contempt. D.E. 89, Release Order, PgID 1828. The order also requires the deputy clerks, through
their appointed criminal defense counsel (see D.E. 106-111), to file status reports with this Court
every fourteen days. D.E. 89, Release Order, PgID 1828.
D. Davis’ Emergency Motion To Stay Expanded Injunction.
On September 11, 2015, Davis filed an emergency motion in the Sixth Circuit requesting
an order staying the September 3, 2015 Expanded Injunction pending appeal. As noted above,
Davis originally filed this motion in the Sixth Circuit based in large part upon this Court’s
consideration of the request for an expanded injunction without notice and its remarks at the
September 3, 2015 hearing, including: “We’ll just include that [the order expanding the original
injunction] as part of the appeal. . . . And the Sixth Circuit can certainly decide if that’s
10 The status report showed that three of the four Plaintiff couples had received marriage licenses. D.E. 84,
Status Report, PgID 1798. Plaintiffs had previously shown this Court, however, that as of August 13, 2015, Plaintiffs
Burke and Napier were “making new wedding arrangements.” D.E. 46, Pls.’ Resp. Mot. Stay Prelim. Inj., PgID 1235.
This fourth couple has never testified in this case or otherwise supplied verified proof that they are qualified to obtain
a marriage license, or that they have not received one, both prerequisites to injunctive relief. D.E. 29, Resp. Pls.’ Mot.
Prelim. Inj., PgID 359. Moreover, based on the status report, this Court found, “Plaintiffs have obtained marriage
licenses . . . .” D.E. 89, Release Order, PgID 1827.
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appropriate.” D.E.78, Contempt Hr’g, PgID 1580-81 (emphasis added). Based upon this Court’s
actions and foregoing statements, Davis understood a motion for a stay of the expanded injunction
to be “impracticable” under Federal Rule of Appellate Procedure 8(a)(1), and sought relief from
the Sixth Circuit.11 An expedited briefing schedule was set on this motion in the Sixth Circuit. On
September 15, 2015, Plaintiffs and the Third-Party Defendants filed response briefs to Davis’
emergency motion for a stay of the expanded injunction.12 On September 16, 2015, Davis filed her
reply brief.13 On September 17, 2015, the Sixth Circuit denied Davis’ motion for a stay because
Davis “has not sought a stay pending appeal in the district court as required by Federal Rule of
Appellate Procedure 8(a)(1),” and concluded that it would not be impracticable for Davis to move
this Court for a stay pending appeal.14
Accordingly, Davis now moves this Court for immediate and expedited consideration of
her Motion to Stay this Court’s September 3, 2015 injunction order. As indicated above, the matter
is already substantively briefed by the parties. See Exs. A-D. Therefore, Davis asks for an
expedited decision from this Court on her Motion.
III. STANDARD OF REVIEW
In deciding a motion for stay pending appeal, Sixth Circuit courts evaluate the same four
factors that are traditionally considered in evaluating a motion for preliminary injunction: “(1) the
likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood
that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be
11 A copy of Davis’ Motion to Stay filed in the Sixth Circuit (without exhibits) is attached as Exhibit “A.” 12 A copy of the Plaintiffs’ and Third-Party Defendants’ response briefs are attached as Exhibits “B” and “C,”
respectively. 13 A copy of Davis’ reply brief in support of the Motion to Stay is attached as Exhibit “D.” 14 A copy of the Sixth Circuit’s order dated September 17, 2015 is attached as Exhibit “E.”
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harmed if the court grants the stay; and (4) the public interest in granting the stay.” Mich. Coal. of
Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
IV. ARGUMENT
A. Davis Has A Strong Likelihood Of Success On The Merits Of Her Appeal Of
The Expanded Injunction To Warrant An Immediate Stay Pending Appeal.
This Court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. As
such, Davis has a strong likelihood of success in obtaining reversal of the Expanded Injunction on
the merits of her appeal. “[A] a district court may not alter or enlarge the scope of its judgment
pending appeal . . . .” N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). “The
standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may
enforce its judgment but not expand upon it.” Am. Town Ctr. v. Hall 83 Associates, 912 F.2d
104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391,
95-1258, 1995 WL 469430, *18 (6th Cir. 1995) (“[S]ince the district court's . . . orders were already
on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds
which it had required defendants to provide in its . . . orders.” (emphasis added)); City of
Cookeville, Tenn. v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 388, 394 (6th Cir.
2007) (“The district court did not have jurisdiction to issue the injunction because the
injunction sought to expand the district court’s previous order.”) (emphasis added);
The Sixth has drawn a crucial distinction between expansion (or enlargement) of orders,
including injunctions, and enforcement of them. See Cookeville, 484 F.3d at 394 (citing Am. Town
Ctr., 912 F.2d at 110). Thus, nothing in Federal Rule of Civil Procedure 62(c)15 (which Plaintiffs
cited in their thinly-veiled motion to “clarify”) permits an expansion or enlargement of an
15 In relevant part, this Rule provides that “While an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction
on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c).
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11
injunction order on appeal. In this matter, this Court did not “modify” its original Injunction—
instead, by its own words, it significantly “expanded” the Injunction and provided relief that
Plaintiffs did not originally request. But any amendment of an order without jurisdiction is a
“nullity.” Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) (“Since the district court was
without jurisdiction to amend its order . . . the Amended Order . . . is a nullity.”); United States v.
Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) (“In the present case, the district court's order is
‘null and void since that court was without jurisdiction . . . after the appeal had been taken.’”).
Plaintiffs’ Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis
to issue licenses to the “Named Plaintiffs.” The resulting Injunction enjoined Davis to issue
licenses, expressly and only, to the “Plaintiffs.” The scope of the Injunction could not be clearer.
There is no “confusion as to the Order’s scope,” as Plaintiffs facetiously allege in their thinly-
veiled motion to “clarify.” D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489. Thus, expanding
the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world
who wants a marriage license in Rowan County—can in no way be described as a clarification.
The expansion of the class is an expansion of the Injunction, which this Court had no jurisdiction
to do. Thus, the Expanded Injunction is a nullity.
In fact, this Court unambiguously agrees that it “expanded” its preliminary injunction while
it was on appeal to the Sixth Circuit. In granting the Expanded Injunction, this Court explicitly
recognized that the so-called “clarification” sought by Plaintiffs was, in fact, to add relief to the
Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. D.E. 78,
Contempt Hr’g, PgID 1578:20-25 (“I recognize they did not request it in the original motion.”
(emphasis added)). Even more recently, this Court expressly acknowledged, again, its expansion
of the injunction: “On September 3, 2015, the Court granted Plaintiffs’ Motion Pursuant to Rule
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12
62(c) to Clarify the Preliminary Injunction Pending Appeal and expanded its ruling to include
other individuals who are legally eligible to marry in Kentucky. (Docs. #68 and 74).” D.E. 103,
Sept. 11, 2015 Order, PgID 2177 (emphasis added). Accordingly, because Davis has a strong
likelihood of succeeding on the merits of her appeal of the Expanded Injunction, this Court should
immediately stay the Expanded Injunction pending appeal.
B. The Remaining Factors Also Favor Staying This Court’s Expanded Injunction
Because It Is Null And Void.
Because the likelihood of success on Davis’ appeal of the Expanded Injunction is clear
based upon this Court’s lack of jurisdiction, this Court need not even make specific findings on
the other factors weighed in granting a stay since “fewer factors” are dispositive. See Six Clinics
Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997). Nevertheless, the
remaining factors provide additional support for granting a stay of the Expanded Injunction.
Because orders exceeding a district court’s jurisdiction are “null and void,” Holloway, 740
F.2d at 1382, no public interest is served by upholding this Court’s Expanded Injunction. The filing
of a notice of appeal (which Davis filed the same day the original Injunction was entered) is a point
of “jurisdictional significance,” conferring jurisdiction on the appellate court and divesting this
Court of same. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). To permit
the Expanded Injunction to stand while Davis’ appeal is pending sets a dangerous and harmful
precedent for parties challenging by right injunction orders in the appellate court. Such persons
(like Davis) could be subjected to competing obligations and onerous burdens for exercising their
appellate rights, with potentially grave (and escalating) consequences.
Those consequences to Davis are real in this case. This Court has already found Davis in
contempt for allegedly violating the original Injunction, and incarcerated Davis for six days as a
sanction for the purported contempt. This immeasurable harm and loss of freedom, coupled with
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13
this Court’s ominous directives in its September 8, 2015 release order—stating that any
interference with the issuance of marriage licenses “to all legally eligible couples” will “be
considered a violation of this Order and appropriate sanctions will be considered” (D.E. 89,
Release Order, PgID 1828)—demonstrate that, according this Court, any violation of its Expanded
Injunction (rather than its original injunction), will be cause for further contempt proceedings.16
Such mandates hold Davis hostage on an order it had no lawful jurisdiction to entertain, let alone
authority to enter. These burdens and threats are unnecessary and improper. As an order of
enforcement, the Release Order serves no purpose with respect to the original Injunction because
only the Plaintiffs were granted relief in the original Injunction, and this Court is already “satisfied”
that Plaintiffs have received their ordered relief. D.E. 89, Release Order, PgID 1827-28.17 Thus,
this Court only has an enforcement interest under the Expanded Injunction which, as shown herein,
is “null and void” as exceeding this Court’s jurisdiction. See Holloway, 740 F.2d at 1382. Only a
stay of the Expanded Injunction pending Davis’ appeal will avoid this improper exercise of
enforcement power.
16 In weighing the harm that will occur as a result of granting or denying a stay, Sixth Circuit courts generally
consider three factors: “(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the
adequacy of the proof provided.” Michigan Coal., 945 F.2d at 154. The “key word” in this consideration is
“irreparable,” and the harm must be “both certain and immediate, rather than speculative or theoretical.” Id. Given the
strength of Davis’ position on the merits, her required showing on irreparable injury is reduced. “The probability of
success that must be demonstrated is inversely proportional to the amount of irreparable injury [the moving party] will
suffer absent the say. Simply stated, more of one excuses less of the other.” Mich. Coal., 945 F.2d at 153 (internal
citation omitted). In other words, “a stay may be granted with either a high probability of success and some injury or
vice versa.” State of Ohio v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). Nonetheless, Davis’s
harm from the denial of a stay is both real and irreparable. 17 Moreover, the Plaintiffs in other cases pending against Davis in this Court, David Ermold, et al. v. Kim Davis,
et al., No. 15-cv-00046-DLB, and James Yates, et al. v. Kim Davis, et al., No. 15-cv-00062-DLB, have also secured
marriage licenses not authorized by Davis. See, e.g., Marriage Licenses Issued in Kentucky, but Debate Continues,
N.Y. TIMES, Sept. 4, 2015, available at http://www.nytimes.com/2015/09/05/us/kim-davis-same-sex-
marriage.html?_r=0 (last accessed Sept. 18, 2015); David Ermold and David Moore finally issued marriage license,
DAILYMAIL.COM, Sept. 4, 2015, available at http://www.dailymail.co.uk/video/news/video-1212676/David-Ermold-
David-Moore-finally-issued-marriage-license.html (last accessed Sept. 18, 2015).
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14
In stark contrast to the threat of sanctions hanging over Davis each day she enters her office
while waiting for a merits decision from the Sixth Circuit on her appeals, Plaintiffs will suffer no
harm if the Expanded Injunction is stayed pending appeal. Plaintiffs have already received the
benefits of the Injunction, to the “satisfaction” of this Court. D.E. 89, Release Order, PgID 1827-
28. Plaintiffs received no additional relief from the Expanded Injunction; staying its enforcement
pending Davis’s appeal cannot harm them. Accordingly, because there is no public interest in
enforcing an order that is null and void, this Court should immediately stay the Expanded
Injunction pending appeal.
V. CONCLUSION
For all the foregoing reasons, and those set forth in Davis’ briefing on this Motion filed in
the Sixth Circuit, which is attached hereto and incorporated by reference here, Davis’ Emergency
Motion for Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order
Pending Appeal should be granted.
DATED: September 18, 2015 Respectfully submitted:
A.C. Donahue
Donahue Law Group, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
Tel: (606) 677-2741
Fax: (606) 678-2977
ACDonahue@DonahueLawGroup.com
/s/ Jonathan D. Christman
Horatio G. Mihet
Roger K. Gannam
Jonathan D. Christman
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
Tel: (800) 671-1776
Fax: (407) 875-0770
hmihet@lc.org
rgannam@lc.org
jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff
Kim Davis
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF
filing system and therefore service will be effectuated by the Court’s electronic notification system
upon the following counsel or parties of record:
Daniel J. Canon Jeffrey C. Mando
L. Joe Dunman Claire Parsons
Laura E. Landenwich ADAMS, STEPNER, WOLTERMANN &
CLAY DANIEL WALTON ADAMS, PLC DUSING, PLLC
462 S. Fourth Street, Suite 101 40 West Pike Street
Louisville, KY 40202 Covington, KY 41011
dan@justiceky.com jmando@aswdlaw.com
joe@justiceky.com cparsons@aswdlaw.com
laura@justiceky.com
Attorneys for Defendant Rowan County
William Ellis Sharp
ACLU OF KENTUCKY William M. Lear, Jr.
315 Guthrie Street, Suite 300 Palmer G. Vance II
Louisville, KY 40202 STOLL KEENON OGDEN PLLC
sharp@aclu-ky.org 300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
Attorneys for Plaintiffs william.lear@skofirm.com
gene.vance@skofirm.com
Attorneys for Third-Party Defendants Steven
L. Beshear, Governor of Kentucky, and
Wayne Onkst, State Librarian and
Commissioner for Kentucky Department for
Libraries and Archives
DATED: September 18, 2015 /s/ Jonathan D. Christman
Jonathan D. Christman
Attorney for Defendant/Third-Party Plaintiff
Kim Davis
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No. 15-5880
__________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________________________
APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE;
STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON
SKAGGS; and BARRY SPARTMAN,
Plaintiffs-Appellees,
v.
KIM DAVIS, Individually,
Defendant-Appellant.
__________________________
On Appeal From The United States District Court
For The Eastern District of Kentucky
In Case No. 15-cv-00044 Before The Honorable David L. Bunning
__________________________
APPELLANT KIM DAVIS’ EMERGENCY MOTION FOR IMMEDIATE
CONSIDERATION AND MOTION TO STAY DISTRICT COURT’S
SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL
__________________________
A.C. Donahue Horatio G. Mihet, Counsel of Record
DONAHUE LAW GROUP, P.S.C. Roger K. Gannam
P.O. Box 659 Jonathan D. Christman
Somerset, Kentucky 42502 LIBERTY COUNSEL
(606) 677-2741 P.O. Box 540774
ACDonahue@DonahueLawGroup.com Orlando, Florida 32854
(800) 671-1776
hmihet@lc.org / rgannam@lc.org /
jchristman@lc.org
Counsel for Appellant Kim Davis
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Pursuant to Fed. R. App. P. 8(a)(2) and 27, Appellant Kim Davis (“Davis”)
hereby moves this Court, on an emergency basis, for a stay pending appeal of the
district court’s September 3, 2015 injunction order. (R.74.)
INTRODUCTION
This appeal began with the district court’s entry of its August 12, 2015
preliminary injunction ordering Davis to issue marriage licenses to the named
Plaintiffs. (R.43 (the “Injunction”).) Davis immediately filed a notice of appeal of
the Injunction, bringing it within this Court’s jurisdiction, and depriving the district
court of jurisdiction to alter or expand the Injunction’s scope.1 (R.44 (Injunction and
notice of appeal attached hereto as Exhibit A).) But the district court did just that,
without fair notice or hearing, by entering a new injunction order that materially
expanded the original Injunction while it was already on appeal to this Court. (R.74
(the “Expanded Injunction”).) The district court’s Expanded Injunction lays waste
to well-established principles of jurisdiction and due process in the federal court
system while an appeal is pending. And, under color of the Expanded Injunction, the
district court has coopted a supervisory role over the operations of the Rowan
County, Kentucky Clerk’s Office.
1 Davis presented substantial arguments against the merits of the Injunction in
its motion to stay the Injunction pending appeal filed herein. (Doc. 15-1.) Davis will
fully address the merits of the Injunction in her opening brief on the merits, to be
filed with this Court at the appropriate time.
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Davis timely appealed the Expanded Injunction. (R.82 (Expanded Injunction
and notice of appeal attached hereto as Exhibit B).) Quite apart from Davis’ religious
liberty interests involved in her appeal of the original Injunction on the merits, her
appeal of the Expanded Injunction, and this request for stay, involve only the issue
of the district court’s acting without jurisdiction. The district court’s far-reaching
expansion of the original Injunction must be reversed, and should be stayed pending
this Court’s decision on the merits.
STATEMENT OF FACTS
The Injunction
On July 2, 2015, less than one week after the Supreme Court decided
Obergefell v. Hodges and the Kentucky Governor issued a directive ordering all
county clerks to personally authorize the issuance of Kentucky marriage licenses to
same-sex couples, Plaintiffs filed this lawsuit demanding that Davis authorize and
approve their Kentucky marriage licenses, despite widespread availability of
licenses and Davis’ undisputed religious conscience objection to same-sex
“marriage.”2 (R.1, Compl.)
2 Expressly to avoid disparate treatment of any couple, Davis discontinued the
issuance of all marriage licenses after Obergefell. (R.26, Prelim. Inj. Hr’g Tr. July
20, 2015, PgID 259:6-16.)
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Plaintiffs filed the action on behalf of themselves and a putative class
consisting of “all present and future individuals who, though legally eligible to marry
in Kentucky, will be denied a marriage license pursuant to the Defendant’s policy.”
(R.1, Compl., PgID 9.) “Named Plaintiffs” also moved for a preliminary injunction
to bar Davis “from enforcing the challenged policy of refusing to issue marriage
licenses against them” (R.2, Pls.’ Mot. Prelim. Inj., PgID 34 (emphasis added)), and
submitted a proposed Order enjoining Davis “from enforcing the policy of refusing
to issue marriage licenses to any future marriage license applications submitted by
the Named Plaintiffs” (R.2-2, Proposed Prelim. Inj. Order (emphasis added)).
The district court hastily scheduled a full evidentiary hearing on the injunction
motion, to occur on July 13, 2015—just eleven days after the motion was filed. (R.5,
Order.) Plaintiffs did not, however, obtain service of process on Davis prior to the
hearing. (R.21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 105:15-107:7.) Thus,
Davis’ counsel appeared specially and objected to the district court’s proceeding
with the hearing, without having obtained jurisdiction over Davis through service of
process. (R.21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2,
117:1-10.) Deeming the fundamental jurisdictional defects mere “Road blocks to
getting to the merits,” the district court overruled counsel’s objection to proceeding
without Davis, took evidence, and heard argument on Plaintiffs’ preliminary
injunction motion. (R.21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 117:1-119:7.)
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After allowing all of Plaintiffs’ evidence and hearing argument, the district court
“continued in progress” the July 13, 2015 hearing (R.21, Prelim. Inj. Hr’g Tr. July
13, 2015, PgID 207:2-4), and concluded the hearing on July 20, 2015 (R.26, Prelim.
Inj. Hr’g Tr. July 20, 2015). Plaintiffs’ evidence at both hearings was limited
exclusively to the named Plaintiffs’ claims.3
On August 12, 2015, the district court granted Plaintiffs’ motion for
preliminary injunction by its Memorandum Opinion and Order (R.43 (the
“Injunction”).) Exactly as requested by Plaintiffs in their motion and proposed order
(R.2, 2-2), the Injunction enjoins Davis “from applying her ‘no marriage licenses’
policy to future marriage license requests submitted by Plaintiffs.” (R.43, Inj.,
PgID 1173 (emphasis added).) Thus, there was complete agreement between what
Plaintiffs requested and what the district court ordered.4
3 Because the relief sought by Plaintiffs in their preliminary injunction motion
was personal to them, no evidence was presented on their Complaint’s class
allegations or request for class-wide relief. Plaintiffs did not file their motion for
class certification until August 2, 2015. 4 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction
motion against Davis, the district court brushed away any urgency regarding Davis’
own motion for preliminary injunction against Third-Party Defendant Governor
Beshear (R.39), and effectively denied the motion by ordering a stay (on the court’s
own motion) of all proceedings on Davis’ motion pending this Court’s decision on
the merits of Davis’ appeal of the Injunction against her. (R.58, Order Aug. 25, 2015,
PgID 1289.) Davis appealed to this Court the district court’s effectual denial of her
preliminary injunction motion (R.66, Notice of Appeal), which appeal is docketed
at Case No. 15-5961.
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Plaintiffs’ Request For Class Certification
On August 2, 2015, Plaintiffs filed a motion for class certification. (R.31, Pls.’
Mot. Class Cert.). On August 11, 2015, Davis filed a motion for extension of time
to respond to Plaintiffs’ class certification motion, requesting that the Court set a
response date for ninety (90) days after the district court ruled on all of the motions
pending before the district court at that time.5 (R.42, Mot. Ext. Time Respond.)
Plaintiffs filed no written opposition to this motion in the time allotted under
the Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs’ time
to oppose expired, showing that “Plaintiffs’ failure to file a timely written opposition
constitutes a waiver of any opposition to Davis’ motion for extension of time.”
(R.56, Reply Br. Supp. Mot. Ext. Time Respond, PgID 1289.)
On August 25, 2015, the district court granted Davis’ motion for extension of
time. (R.57, Virtual Order Aug. 25, 2015 (“Plaintiffs having filed no opposition to
the MOTION, IT IS ORDERED that Defendant Davis’ response to said motion is
due 30 days after the Sixth Circuit Court of Appeals renders its decision on the
appeal of the Court's granting of Plaintiffs’ motion for a preliminary injunction.”).)
5 These pending motions included Plaintiffs’ motion for preliminary injunction
(R.2), Davis’ motion to dismiss Plaintiffs’ Complaint (R.32), and Davis’ motion for
preliminary injunction (R.39).
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The effect of this order was to stay all proceedings on Plaintiffs’ class certification
motion until this Court decides the appeal of the Injunction on the merits.
Plaintiffs’ Motion to “Clarify” the Injunction and the “Hearing”
Despite the unambiguous agreement between what Plaintiffs requested in
their motion for preliminary injunction and what the district court granted in the
Injunction, Plaintiffs manufactured a disingenuous motion to “clarify” the Injunction
to encompass a class of persons not covered by the Injunction. (R.68, Pls.’ Mot.
“Clarify” Prelim. Inj.) Specifically, Plaintiffs moved:
for an order to clarify or, in the alternative, to modify the
preliminary injunction to state unambiguously that the
preliminary injunction applies not only to future
marriage license requests submitted by the four named
Plaintiff couples in this action, but also to requests
submitted by other individuals who are legally eligible
to marry in Kentucky.
(R.68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1488 (emphasis added).) Thus, rather
than a motion to “clarify,” Plaintiffs actually sought to convert the Injunction’s
relief, which was limited and personal to them by their own request, into a class-
wide preliminary injunction even though (1) they had never previously requested a
class-wide injunction (R.2-2, Proposed Prelim. Inj. Order), (2) they presented no
actual evidence regarding the purported “other members of the putative class” (R.68,
Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489); and (3) their actual motion for class
certification was stayed. (R.57, Virtual Order Aug. 25, 2015.)
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Plaintiffs filed their motion to “clarify” the Injunction on September 1, 2015,
three weeks after the district court entered its Injunction. (R.68, Pls.’ Mot. “Clarify”
Prelim. Inj., PgID 1488-91.) Moreover, Plaintiffs’ motion to “clarify” was filed on
the heels of, or “contemporaneously with” (Plaintiffs’ words), their motion to hold
Davis in contempt of court for violating the Injunction by failing to authorize a
marriage license for one Plaintiff couple. (R.67, Pls.’ Contempt Mot.) Within
minutes of Plaintiffs’ filing the contempt motion, the district court scheduled a
contempt hearing to occur two days later, ordered Davis and all of her deputy clerks
to be present at the hearing, and limited Davis to filing a five-page opposition by
close of business the next day (which Davis did).6 (R.69, Order Sept. 1, 2015, PgID
1496; see also R.72, Contempt Resp., PgID 1540-46.)
Approximately forty-eight hours later, on September 3, 2015, the district court
commenced the hearing it had exclusively noticed for Plaintiffs’ contempt motion.
(R.69, Order Sept. 1, 2015, PgID 1496 (“IT IS ORDERED that this matter be, and
is, hereby set for a hearing on Plaintiff's Motion to Hold Defendant Kim Davis in
Contempt of Court DE[67] on Thursday, September 3, 2015 at 11:00 a.m. in
Ashland, Kentucky.”); R.78, Contempt Hr’g (the hearing transcript, attached hereto
6 In her response brief opposing Plaintiffs’ contempt motion, Davis specifically
stated that she opposed Plaintiffs’ thinly-veiled motion to “clarify” the Injunction,
and intended to file a written opposition in accordance with the Local Rules (21 days
after service). (R.72, Contempt Resp., PgID 1542.)
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as Exhibit C).) Before taking up the contempt motion, however, and without any
advance notice to Davis, the district court called up Plaintiffs’ motion to “clarify”
the Injunction. (R.78, Contempt Hr’g, PgID 1570:21-1571:22, 1572:19-1573:19.)
Davis’ counsel objected to proceeding on the motion to “clarify” due to lack of fair
notice, and due to the district court’s lack of jurisdiction to expand the Injunction
because it was already on appeal. (R.78, Contempt Hr’g, PgID 1573:20-1580:19.)
The district court acknowledged that the motion to “clarify” was not noticed
for hearing. (R.78, Contempt Hr’g, PgID 1571:18-20 (“The case wasn’t noticed for
that hearing.”).) The district court also acknowledged that the so-called
“clarification” sought by Plaintiffs was, in fact, to add relief to the Injunction which
was not sought by Plaintiffs in their motion for preliminary injunction. (R.78,
Contempt Hr’g, PgID 1578:20-25 (“I recognize they did not request it in the
original motion.” (emphasis added)).) Nonetheless, over Davis’ objection, and
without taking any evidence to support this class-wide relief, the district court
granted the expansion of the Injunction. (R.78, Contempt Hr’g, PgID 1580:3-15.)
After expanding the Injunction, the court immediately passed the issue to this Court.
(R.78, Contempt Hr’g, PgID 1580-81 (“We’ll just include that as part of the appeal.
. . . And the Sixth Circuit can certainly decide if that’s appropriate.”).)
Having expanded the Injunction, the district court then proceeded with
hearing the only motion the court noticed for hearing, Plaintiffs’ contempt motion.
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(R.78, Contempt Hr’g, PgID 1581:18-19 (“Let me now turn to the actual merits of
the matter that’s before the Court.”).) The court ordered Davis to jail as a contempt
sanction for Davis’ refusal to issue a marriage license, in violation of her conscience,
to one Plaintiff couple.7 (R.78, Contempt Hr’g, PgID 1659:22-1661:25.) The
condition for Davis’ release would be her compliance with the Expanded Injunction,
not the original Injunction (R.78, Contempt Hr’g, PgID 1661:18-1662:16.) The
district court then appointed criminal defense counsel for each of Davis’ deputy
clerks—all of whom had been summoned in advance to the hearing—and
interrogated each deputy clerk as to whether each of them would issue marriage
licenses without Davis’ authorization. (R.78, Contempt Hr’g, PgID 1667:19-
7 The district court memorialized this most severe of contempt sanctions against
Davis by a mere “minutes” order (R.75 (the “Contempt Order”)); no formal written
order has been entered. (R.78, Contempt Hr’g, PgID 1651:21-24 (“I haven’t decided
if I’m going to enter a written order or not. I probably will enter some sort of written
order following up the Court’s decision.”).) Davis separately appealed the Contempt
Order to this Court (R. 83, Contempt Order Notice of Appeal), which appeal has
been docketed as Case No. 15-5978. Davis also filed therein, on September 8, 2015,
an emergency motion to stay the Contempt Order pending appeal. As shown in
Davis’ emergency motion to stay the Contempt Order, and as will be more fully
developed in Davis’ brief on the merits of that order at the appropriate time, the
district court failed to provide Davis requisite due process in the contempt
proceedings. Among other fundamental errors, the district court provided no notice
that it would significantly expand and alter its Injunction at the contempt hearing,
while the Injunction was already on appeal, and then confine Davis to prison based
upon the ultra vires and expanded preliminary injunction.
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1730:6.) All but one (Davis’ son) were coerced by the threat of contempt sanctions
to answer “yes.”8 (Id.)
On September 8, 2015, the sixth day of Davis’ incarceration, Plaintiffs filed a
status report, showing the district court that the Plaintiffs had received marriage
licenses from the deputy clerks.9 (R.84, Status Report.) Following the status report,
the district court ordered Davis released, stating in its order the court was “satisfied
that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage
licenses” under the Injunction. (R.89 (the “Release Order”), PgID 1827-28.) The
Release Order commands, however, “Davis shall not interfere in any way, directly
8 One deputy clerk, Kristie Plank, has the primary responsibility within the
Rowan County Clerk’s Office for servicing automobile dealers, a critical position
within the office which does not include the issuance of marriage licenses. (R.78,
Contempt Hr’g, PgID 1698:25-1705:5.) She expressed concern with assenting to the
issuance of marriage licenses to the extent it would interfere with her legitimate
existing responsibilities. (Id.) Another deputy clerk, Melissa Thompson, tearfully
agreed to issue licenses under the court’s order, but was clearly under duress, stating,
“I don’t really want to, but I will comply with the law. I’m a preacher’s daughter,
and this is the hardest thing I’ve ever done in my life . . . . None of us hate anybody.
It’s just hard.” (R.78, Contempt Hr’g, 1692:17-1697:8.) 9 The status report showed that three of the four Plaintiff couples had received
marriage licenses. (R.84, Status Report, PgID 1798.) Plaintiffs had previously shown
the court, however, that as of August 13, 2015, Plaintiffs Burke and Napier were
“making new wedding arrangements.” (R.46, Pls.’ Resp. Mot. Stay Prelim. Inj.,
PgID 1235.) This fourth couple has never testified in this case or otherwise supplied
verified proof that they are qualified to obtain a marriage license, or that they have
not received one, both prerequisites to injunctive relief. (R.29, Resp. Pls.’ Mot.
Prelim. Inj., PgID 359.) Moreover, based on the status report, the district court found,
“Plaintiffs have obtained marriage licenses . . . .” (R.89, Release Order, PgID 1827.)
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or indirectly, with the efforts of her deputy clerks to issue marriage licenses,” on
pain of new sanctions for contempt. (R.89, Release Order, PgID 1828.) The order
also requires the deputy clerks, through their appointed criminal defense counsel, to
file status reports with the district court every fourteen days. (R.89, Release Order,
PgID 1828.)
Emergency Motion to Stay
Davis now moves this Court for an order staying the September 3, 2015
Expanded Injunction pending appeal. Seeking a ruling from the district court on a
stay request is “impracticable” under Fed. R. App. P. 8(a)(2)(A)(i), due to the
extraordinary doggedness of the district court to expand the Injunction, without
jurisdiction or fair notice and opportunity to be heard, and the district court’s haste
to pass the matter to this Court for determination—“the Sixth Circuit can certainly
decide if that’s appropriate” (R.78, Contempt Hr’g, PgID 1580-81). Accordingly,
Davis now seeks a stay from this Court.
ARGUMENT
In deciding a motion for stay pending appeal, this Court balances the same
four factors that are traditionally considered in evaluating a motion for preliminary
injunction: “(1) the likelihood that the party seeking the stay will prevail on the
merits of the appeal; (2) the likelihood that the moving party will be irreparably
harmed absent a stay; (3) the prospect that others will be harmed if the court grants
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the stay; and (4) the public interest in granting the stay.” Mich. Coal. of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
I. Davis has a sufficient likelihood of success on the merits of her appeal
to warrant an immediate stay of the Expanded Injunction.
The district court had no jurisdiction to enter the Expanded Injunction. Thus,
it is a nullity. There is no doubt as to Davis’ likelihood of success in obtaining
reversal of the Expanded Injunction on the merits.
“[A] a district court may not alter or enlarge the scope of its judgment pending
appeal . . . .” N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987).
“The standard for jurisdiction after the filing of the notice of appeal . . . is that a
district court may enforce its judgment but not expand upon it.” Am. Town Ctr. v.
Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf.
United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th
Cir. 1995) (“[S]ince the district court's . . . orders were already on appeal, the district
court lacked jurisdiction . . . to reduce the number of mental health beds which it
had required defendants to provide in its . . . orders.” (emphasis added)).
Any amendment of an order without jurisdiction is a “nullity.” Workman v.
Tate, 958 F.2d 164, 168 (6th Cir. 1992) (“Since the district court was without
jurisdiction to amend its order . . . the Amended Order . . . is a nullity.”); United
States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) (“In the present case, the
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district court's order is ‘null and void since that court was without jurisdiction . . .
after the appeal had been taken.’”).
Plaintiffs’ Motion for Preliminary Injunction expressly, and only, sought to
enjoin Davis to issue licenses to the “Named Plaintiffs.” The resulting Injunction
enjoined Davis to issue licenses, expressly and only, to the “Plaintiffs.” The scope
of the Injunction could not be clearer. There is no “confusion as to the Order’s
scope,” as Plaintiffs facetiously allege in their thinly-veiled motion to “clarify.”
(R.68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489.) Thus, expanding the class of
persons entitled to licenses pursuant to the Injunction—to include anyone in the
world who wants a marriage license in Rowan County—can in no way be described
as a clarification. The expansion of the class is an expansion of the Injunction, which
the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity,
and unquestionably is due to be reversed on the merits.
II. Davis is substantially more harmed than the named Plaintiffs absent a
stay of the Expanded Injunction pending appeal.
In weighing the harm that will occur as a result of granting or denying a stay,
this Court generally considers three factors: “(1) the substantiality of the injury
alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof
provided.” Michigan Coal., 945 F.2d at 154. The “key word” in this consideration
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is “irreparable,” and the harm must be “both certain and immediate, rather than
speculative or theoretical.” Id.
Given the strength of Davis’ position on the merits, her required showing on
irreparable injury is reduced. “The probability of success that must be demonstrated
is inversely proportional to the amount of irreparable injury [the moving party] will
suffer absent the say. Simply stated, more of one excuses less of the other.” Mich.
Coal., 945 F.2d at 153 (internal citation omitted). In other words, “a stay may be
granted with either a high probability of success and some injury or vice versa.”
State of Ohio v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987).
Nonetheless, Davis’s harm from the denial of a stay will be both real and irreparable.
Pursuant to the Release Order, the district court is now supervising the
operations and personnel of the Rowan County Clerk’s Office, including Davis as
the Clerk, and her deputy clerks. (R.89, Release Order, PgID 1828.) Far from being
straightforward, however, the Release Order’s command that “Davis shall not
interfere in any way, directly or indirectly, with the efforts of her deputy clerks to
issue marriage licenses” substantially and ambiguously interferes with Davis’ ability
to manage the legitimate affairs of her office which are unrelated to her individual
position on marriage licensing.
For example, Davis’ management judgment to assign a particular deputy clerk
or clerks exclusively to non-marriage-licensing duties—based on the needs of the
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office10—could be deemed “interfere[nce] . . . in any way, directly or indirectly, with
the efforts of her deputy clerks to issue marriage licenses . . . .” (R.89, Release Order,
PgID 1828.) Furthermore, the Release Order’s directive conflicts with Davis’ own
legal duty, as an employer, to consider and grant as appropriate any deputy clerk’s
request for religious accommodation relating to marriage licenses11 under laws like
Title VII and the Kentucky RFRA. These ambiguous burdens on Davis’
management of the affairs of her office all carry the specter of new (and presumably,
more severe) contempt sanctions, and the threat is indefinite because the Expanded
Injunction opens the Injunction’s relief to everyone (in the world) who may desire a
Kentucky marriage license issued in Rowan County. The harm from having to
operate under this constant threat is irreparable, for even success on the merits of
Davis’ appeals cannot restore the months of constant strain imposed on Davis, her
office, and her employees by the district court’s intrusive supervision.
The foregoing burdens and threats of contempt sanctions are more than
hypothetical; Davis has already spent six days in jail that Plaintiffs could obtain
the relief ordered by the original Injunction (while its merits are still on appeal). But,
such burdens and threats are unnecessary and improper. As an order of enforcement,
the Release Order serves no purpose with respect to the original Injunction because
10 See supra, n. 8. 11 See supra, n. 8.
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only the Plaintiffs were granted relief in the original Injunction, and the district court
is already “satisfied” that Plaintiffs have received their ordered relief. (R.89, Release
Order, PgID 1827-28.) Thus, the district court only has an enforcement interest
under the Expanded Injunction which, as shown herein, is null and void as exceeding
the district court’s jurisdiction. Only a stay of the Expanded Injunction pending
Davis’ appeal will avoid this onerous and improper exercise of enforcement power.
In stark contrast to the threat of sanctions hanging over Davis each day she
enters her office while waiting for relief from an impartial audience in this Court on
her appeals, Plaintiffs will suffer no harm if the Expanded Injunction is stayed
pending appeal. Plaintiffs have already received the benefits of the Injunction, to the
“satisfaction” of the district court. (R.89, Release Order, PgID 1827-28.) Plaintiffs
received no additional relief from the Expanded Injunction; staying its enforcement
pending Davis’s appeal cannot harm them.
III. The public interest favors granting a stay.
No public interest is served by upholding an order exceeding a district court’s
jurisdiction. To the contrary, the public is only served by the disregard of any such
order, which is “null and void.” See Holloway, 740 F.2d at 1382.
Furthermore, the federal court supervision over Davis’ office imposed by the
Release Order, in enforcement of the Expanded Injunction, violates established
principles of federalism and comity, usurping the role of a publicly elected official
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in the Commonwealth of Kentucky and invading the province, discretion, and affairs
of her office. It is also contrary to contempt principles, for in devising enforcement
remedies, federal courts are to “take into account the interests of state and local
authorities in managing their own affairs, consistent with the Constitution.” Milliken
v. Bradley, 433 U.S. 267, 280-81 (1977). Indeed, it is incumbent upon federal district
courts that sanctions imposed against state officials should be the “least intrusive”
remedy available. See Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984);
Spallone v. U.S., 493 U.S. 265, 276 (1990). The public is not served by the violation
of such principles for any length of time.
As shown herein, from the commencement of this case, Plaintiffs have
received procedural preferences, notwithstanding even fundamental jurisdictional
defects. Davis has received the opposite, culminating in incarceration for
conscience, and the threat of more severe sanctions under an invalid order which the
district court had no jurisdiction to enter. For all of the foregoing reasons, Davis
requests the following:
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RELIEF REQUESTED
Appellant Kim Davis respectfully requests that this Court: (1) grant
immediate consideration and (2) enter an order staying the district court’s September
3, 2015 Expanded Injunction pending final resolution of the appeal in this Court.
DATED: September 10, 2015
Respectfully submitted:
A.C. Donahue
Donahue Law Group, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
ACDonahue@DonahueLawGroup.com
/s/ Roger K. Gannam
Horatio G. Mihet, Counsel of Record
Roger K. Gannam
Jonathan D. Christman
Liberty Counsel, P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
hmihet@lc.org / rgannam@lc.org /
jchristman@lc.org
Counsel for Appellant Kim Davis
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CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of September, 2015, I caused the
foregoing document to be filed electronically with the Court, where it is available
for viewing and downloading from the Court’s ECF system, and that such electronic
filing automatically generates a Notice of Electronic Filing constituting service of
the filed document upon the following:
William Ellis Sharp Daniel Mach
ACLU of Kentucky Heather L. Weaver
315 Guthrie Street, Suite 300 ACLU Foundation
Louisville, KY 40202 915 15th Street, NW, Suite 6th Floor
sharp@aclu-ky.org Washington, DC 20005
dmach@aclu.org
Daniel J. Canon hweaver@aclu.org
Laura E. Landenwich
Leonard Joe Dunman James D. Esseks
Clay Daniel Walton Adams, PLC Ria Tabacco Mar
462 S. Fourth Street, Suite 101 ACLU Foundation
Louisville, KY 40202 125 Broad Street, 18th Floor
dan@justiceky.com New York, NY 10004
laura@justiceky.com jesseks@aclu.org
joe@justiceky.com rmar@aclu.org
Counsel for Appellees
William M. Lear, Jr.
Palmer G. Vance II
Stoll Keenon Ogden PLLC
300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
william.lear@skofirm.com
gene.vance@skofirm.com
Counsel for Third Party Defendants-Appellees
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/s/ Roger K. Gannam
Roger K. Gannam
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
rgannam@lc.org
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Case No. 15-5880
UNITED STATES COURT OF APPEALS for the
SIXTH CIRCUIT
APRIL MILLER, PH.D.; KAREN ANN ROBERTS; SHANTEL BURKE;
STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY;
L. AARON SKAGGS; BARRY SPARTMAN
Plaintiffs-Appellees,
v.
KIM DAVIS
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
APPELLEES’ RESPONSE OPPOSING MOTION TO STAY
DISTRICT COURT’S SEPTEMBER 3, 2015 INJUNCTION ORDER
Daniel J. Canon
Laura E. Landenwich
L. Joe Dunman
CLAY DANIEL WALTON & ADAMS, PLC
462 South Fourth Street, Suite 101
Louisville, KY 40202
ACLU OF KENTUCKY Cooperating
Attorneys
Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, DC 20005
William E. Sharp
Legal Director
ACLU OF KENTUCKY
315 Guthrie Street, Suite 300
Louisville, KY 40202
Ria Tabacco Mar
James D. Esseks
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, NY 10004
Counsel for Plaintiffs-Appellees
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Pursuant to Federal Rule of Appellate Procedure 27(a)(3), Plaintiffs-
Appellees, April Miller, Karen Roberts, Shantel Burke, Stephen Napier,
Jody Fernandez, Kevin Holloway, L. Aaron Skaggs and Barry Spartman
(collectively referred to as Plaintiffs), by counsel, submit their response
opposing Defendant-Appellant Davis’ motion to stay the September 3, 2015
order modifying the District Court’s preliminary injunction ruling.
Davis has already asked three courts – the District Court, this Court,
and the United States Supreme Court – to excuse her from performing her
official duties. All three courts have declined to make an exception for
Davis. In denying Davis’ earlier motion for a stay, this Court found that
there is “little or no likelihood that the Clerk in her official capacity will
prevail on appeal” because Davis, as “the holder of the Rowan County
Clerk’s office . . . [must] act in conformity with the United States
Constitution as interpreted by a dispositive holding of the United States
Supreme Court.” [RE #28-1 (15-5880): Order, at 2.] That conclusion is not
limited to the four named Plaintiff couples, as the District Court correctly
found when it modified its August 12 preliminary injunction to enjoin Davis
from applying her “no marriage licenses” policy to other couples who are
legally eligible to marry in Kentucky. Davis’ latest attempt to avoid the
obligations of her office should likewise be denied.
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FACTS
The parties detailed the facts of this case when they litigated
Defendant-Appellant Davis’ initial emergency motion for a stay. [See RE
#15-1 (15-5880): Emergency Motion for Immediate Consideration and
Motion to Stay District Court’s August 12, 2015 Order Pending Appeal; RE
#25 (15-5880): Appellees’ Response Opposing Motion to Stay.] Rather than
reassert those facts, Appellees incorporate by reference their earlier
statement of facts and include here only those additional facts that will aid
the Court in its resolution of Davis’ present emergency stay motion.
After this Court denied Davis’ previous stay motion, Davis sought an
emergency stay of the August 12 preliminary injunction from the Supreme
Court. [Davis v. Miller, et al., No. 15A250 (Aug. 31, 2015).] In a one-line
order, the Supreme Court denied that request without asking for a response
from Plaintiffs-Appellees and without any apparent dissent. Davis v. Miller,
No. 15A250, -- S.Ct. --, 2015 WL 5097125, at *1 (U.S. Aug. 31, 2015).
Rather than comply with the preliminary injunction ruling, however,
Davis chose to disregard it. The morning after the Supreme Court denied her
stay application, Davis directed her employees to continue enforcing her “no
marriage licenses” policy. [RE #43 (15-5880): Exhibit C to Davis’
Emergency Motion for Stay of September 3rd Injunction Order (“9/3/15
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Hrg. Transcript”), Page ID# 1621, 1631 (Kim Davis’ testimony admitting
that she directed her deputy clerks to disregard District Court’s preliminary
injunction and Supreme Court’ denial of stay request to continue enforcing
her “no marriage licenses” policy).] That decision resulted in Plaintiffs
Miller and Roberts again being denied a marriage license on September 1,
2015. [Id. at Page ID #1638-39.] Left with no other recourse, Plaintiffs filed
a motion asking the District Court to hold Davis in contempt for her
continued refusal to comply with the August 12 preliminary injunction
ruling. [RE #67 (0:15-cv-00044): Plaintiffs’ Motion to Hold Kim Davis in
Contempt of Court, Page ID #1477.] Plaintiffs also filed a motion to clarify
or modify the preliminary injunction ruling to bar Davis from enforcing her
“no marriage licenses” policy against any eligible applicants, not just the
named plaintiffs. [RE #68 (0:15-cv-00044): Plaintiffs’ Motion Pursuant to
Rule 62(c) to Clarify the Preliminary Injunction Pending Appeal, Page ID
#1488.]
At the contempt hearing, the District Court afforded Davis’ counsel an
opportunity to respond to Plaintiffs’ Rule 62(c) motion. [RE #43 (15-5880):
9/3/15 Hrg. Transcript, Page ID# 1571-1580.] After hearing argument from
Davis’ counsel, the District Court granted Plaintiffs’ motion and entered its
September 3 Order modifying the earlier preliminary injunction. [RE #43
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(15-5880): 9/3/15 Order, Page ID#1557.] In doing so, the District Court
noted that Plaintiffs filed this case as a class action and explained that, even
though it had stayed the class certification issue, allowing the August 12th
preliminary injunction “to apply to some, but not others, simply doesn’t
make practical sense.” [RE #43 (15-5880): 9/3/15 Hrg. Transcript, Page ID
#1581.] The District Court also noted that, after Plaintiffs here filed suit, two
related cases were filed by couples seeking to marry. [Id. at Page ID #1573.]
Those cases raise identical legal issues, and the reasoning behind the August
12 preliminary injunction applies with equal force to the plaintiff couples in
those cases. [Id. at Page ID# 1576-1577.] Thus, the District Court’s
September 3 Order modified the August 12 preliminary injunction to bar
Davis, in her official capacity, from enforcing her “no marriage licenses”
policy against any applicants who are legally eligible to marry. [Id.] While
several of the named Plaintiff couples sought and received marriage licenses
following the issuance of the September 3 Order, one couple – Shantel
Burke and Stephen Napier – has not yet done so.
Davis did not thereafter seek a stay of that ruling in the District Court.
Rather, she requested certification for an immediate appeal from the
September 3 ruling. [RE #43 (15-5880): 9/3/15 Hrg. Transcript, Page ID#
1580.] Davis then filed the present motion asking this Court for an
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emergency stay. As further explained below, the motion for an emergency
stay should be denied because Davis has not shown that it was impracticable
to apply for a stay from the District Court, the District Court retained
jurisdiction to modify its preliminary injunction ruling on September 3,
2015, and it properly exercised that jurisdiction to give effect to its earlier
decision. For the same reasons that this Court denied Davis’ motion for a
stay of the August 12 preliminary injunction, Davis’ present motion for a
stay should be denied.
LEGAL STANDARD
In evaluating whether to grant a requested stay, courts must consider
four factors: “(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies.” Ohio State Conference of N.A.A.C.P. v.
Husted, 769 F.3d 385, 387 (6th Cir. 2014) (internal quotations and citations
omitted). Of these, the “‘first two factors . . . are the most critical.’” Id.
(quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). As discussed below, all
of the factors weigh in favor of denying the requested stay.
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ARGUMENT
I. THE STAY MOTION SHOULD BE DENIED BECAUSE
DAVIS FAILED TO REQUEST A STAY IN THE DISTRICT
COURT AND HAS NOT SHOWN THAT DOING SO WOULD
HAVE BEEN IMPRACTICABLE.
Even before reaching the relevant factors for evaluating stay requests,
Davis’ motion should be denied because she failed to first seek a stay of the
September 3 Order in the District Court. “The cardinal principle with respect
to stay applications under Rule 8 is that the relief ordinarily must first be
sought in the lower court.” Wright & Miller, 16A Federal Prac. & Proc.
§ 3954 (4th ed.). It is undisputed that Davis failed to comply with this
prerequisite to appellate review. [RE #43 (15-5880): Davis’ Motion to Stay,
11.]
An applicant is excused from this general requirement only if she can
“show that moving first in the district court would be impracticable.” Fed.
R. App. P. 8(a)(2)(A)(i). The entirety of Davis’ argument regarding the
impracticability of her seeking a stay below is limited to a single sentence in
which she cites the District Court’s “extraordinary doggedness” as a basis
for bypassing review there. [RE #43 (15-5880): Davis’ Motion to Stay, 11.]
But “doggedness” does not justify bypassing the District Court
altogether. Even if it could, Davis has not explained how. Davis’ motion
should be denied, and the District Court should be afforded the opportunity
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to address it in the first instance. See, e.g., Baker v. Adams Cnty./Ohio Valley
Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002) (denying motion for a stay
pending appeal because the defendant failed to seek relief in the district
court); S.E.C. v. Dunlap, 253 F.3d 768, 774 (4th Cir. 2001) (same).
II. BECAUSE THE DISTRICT COURT RETAINED
JURISDICTION TO ENTER ITS SEPTEMBER 3 ORDER,
DAVIS IS UNLIKELY TO SUCCEED ON APPEAL.
Rule 62(c) of the Federal Rules of Civil Procedure provides that a
district court retains jurisdiction to modify a preliminary injunction pending
an appeal. Specifically, Rule 62(c) provides:
When an appeal is taken from an interlocutory or final
judgment granting, dissolving, or denying an injunction, the
court in its discretion may suspend, modify, restore, or grant an
injunction during the pendency of the appeal upon such terms
as to bond or otherwise as it considers proper for the security of
the rights of the adverse party.
Fed.R.Civ.P. 62(c). Thus, Rule 62(c) creates an exception to the general rule
that an appeal divests the district court of jurisdiction. N.L.R.B. v. Cincinnati
Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987) (“[T]the rule depriving a
district court of jurisdiction over matters pending on appeal ‘is neither a
creature of statute nor . . . absolute in character.’” (quoting Island Creek
Coal Sales Co. v. City of Gainesville, 764 F.2d 437 (6th Cir. 1985)).
As noted by this Court, sister circuits have variously analyzed Rule
62(c), generally applying one of two standards for determining whether a
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particular modification is authorized by the rule. Basicomputer Corp. v.
Scott, 973 F.2d 507, 513 (6th Cir. 1992). Specifically, some circuits construe
Rule 62(c) to permit only those modifications that “preserve the status quo.”
George S. Hofmeister Family Trust v. Trans Industries of Ind., Inc., 2007
WL 128932, at *2 (E.D. Mich. 2007) (citing Coastal Corp. v. Tex. E. Corp.,
869 F.2d 817 (5th Cir. 1989); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389
(9th Cir. 1984); Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2nd Cir.
1962)). Other circuits, however, construe Rule 62(c) to permit modifications
after an appeal is filed “when the district court’s action ‘preserve[s] the
integrity of the proceeding in the court of appeals.’” Id. (quoting Ortho
Pharm. Corp. v. Amgen, Inc., 887 F.2d 460 (3rd Cir. 1989)).
While this Court has not adopted or rejected either approach,
Basicomputer, 973 F.2d at 513, the Court need not reach that question in the
present appeal because the District Court’s September 3 Order satisfies both
standards.
Under the “preserve the integrity of the proceedings” standard, the
District Court’s September 3 Order ensures that Davis, in asserting an appeal
that has “little to no likelihood of success,” will be unable to continue to
enforce her “no marriage licenses” policy against the plaintiffs in those
companion cases still pending in the District Court, or against the members
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10
of the putative class. And given Davis’ established refusal to comply with
the District Court’s valid court order, the modification of the August 12
preliminary injunction is necessary to preserve the integrity of the
proceedings by avoiding the unnecessary multiplication of litigation,
including appellate litigation, that would result from her continuing to
enforce her “no marriage licenses” policy against those who are legally
eligible to marry.
Similarly, under the “maintain the status quo” standard, the District
Court properly entered its September 3 Order barring Davis, in her official
capacity, from enforcing the “no marriage licenses” policy against the name
Plaintiffs and all applicants who are otherwise eligible to marry –i.e., the
members of the putative class. The District Court’s Order simply restored
the status quo that existed prior to Davis’ adoption of the challenged (and
unlawful) “no marriage licenses” policy. And in so doing, the Order does not
undermine the ability of this Court to exercise jurisdiction over the pending
appeal –a proposed formulation for the “maintain the status quo standard.”
See S & S Sales Corp. v. Marvin Lumber & Cedar Co., 457 F. Supp. 2d 903,
906 (E.D. Wis. 2006) (“Maintaining the status quo means that a controversy
will still exist once the appeal is heard. Any action on the district court’s part
which has the effect of divesting the court of appeals of its jurisdiction over
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11
the matter, by eliminating the controversy prior to the hearing on the appeal
is inappropriate.” (quoting 12 Moore’s Federal Practice § 62.06[1] (3d ed.
2006))). The question in that pending appeal will remain the same: May
Defendant-Appellant, in her official capacity, deny marriage license
applicants their fundamental right to marry and refuse compliance with
Obergefell because of her personal religious beliefs. See, e.g., Natural Res.
Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1167 (9th Cir. 2001)
(upholding order modifying injunction after notice of appeal filed because
the modifications “did not materially alter the status of the consolidated
appeal” in that “[t]hey left unchanged the core questions before the appellate
panel deciding the consolidated appeal”).
Thus, under either analytical framework, Rule 62(c) provides ample
justification (and jurisdiction) for the District Court’s September 3 Order
modifying the preliminary injunction in this case.
Davis’ argument that the District Court lacked authority to modify the
August 12 preliminary injunction because she had already appealed that
ruling ignores Rule 62(c), and the cases on which she relies fail even to
mention it. [RE #43: Davis’ Emergency Motion to Stay, 12-13 (citing
N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585 (6th Cir. 1987) (holding
that district court retained jurisdiction “to enforce and clarify” prior
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12
subpoena enforcement order during appeal with no discussion of Rule
62(c)); Am Town Ctr. v. Hall 83 Associates, 912 F.2d 104 (6th Cir. 1990)
(appeal from district court order dismissing complaint divested district court
of jurisdiction to enjoin state court proceedings involving different parties
and claims with no discussion of Rule 62(c)); United States v. Michigan,
Nos. 94-2391, 95-1258, 1995 WL 469430 (6th Cir. 1995) (unpublished)
(appeal divested district court of jurisdiction to reduce the number of mental
health beds previously ordered without discussing or analyzing Rule 62(c));
Workman v. Tate, 958 F.2d 164 (6th Cir. 1992) (in habeas case, holding,
without discussing Rule 62(c), that remand solely to consider prisoner’s
request for release pending appeal did not confer jurisdiction upon district
court to amend earlier ruling granting habeas petition); United States v.
Holloway, 740 F.2d 1373 (6th Cir. 1984) (in criminal case, district court
lacked jurisdiction to consider motion under Fed. R. Crim. P. 35 to correct
sentence after appeal filed).]
Moreover, even though the District Court previously stayed the class
certification issue, the District Court was well within its authority to enjoin
Davis from enforcing her “no marriage licenses” policy to all eligible
couples, regardless of whether or not those couples are named Plaintiffs in
this case. “District courts have the power to order injunctive relief covering
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13
potential class members prior to class certification” pursuant to their
‘“general equity powers.’” Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577,
at *2 (N.D. Ill. Dec. 10, 2013) (quoting 3 Newberg on Class Actions § 9:45
(4th ed. 2002)); see, e.g., Welch v. Brown, No. 12-13808, 2013 WL
3224416, at *3 (E.D. Mich. June 25, 2013) (rejecting defendant’s argument
that preliminary injunction should apply only to named plaintiffs and not
putative class members); Strouchler v. Shah, 891 F. Supp. 2d 504, 517
(S.D.N.Y. 2012) (same); Thomas v. Johnston, 557 F. Supp. 879, 916 n.29
(W.D. Tex. 1983) (“It appears to be settled . . . that a district court may, in
its discretion, award appropriate classwide injunctive relief prior to a formal
ruling on the class certification issue based upon either a conditional
certification of the class or its general equity powers.”). Broad preliminary
injunctive relief is appropriate “when activities of the defendant are directed
generally at a class of persons.” Lee, 2013 WL 6490577, at *2. That is
certainly true here, where Davis testified at the contempt hearing that she
would continue to cause irreparable harm, not only to the named Plaintiff
couples, but also to all putative class members, by refusing to comply with
the August 12 preliminary injunction. [RE #43 (15-5880): 9/3/15 Hrg.
Transcript, Page ID# 1621, 1631 (Kim Davis’ testimony admitting that she
directed her deputy clerks to disregard District Court’s preliminary
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14
injunction and Supreme Court’ denial of stay request to continue enforcing
her “no marriage licenses” policy).] The District Court was not required to
“ignore the alleged harm to putative class members” simply because it had
not yet certified a class. Strouchler, 891 F. Supp. 2d at 517.1
Indeed, “‘[i]n the civil rights field, it is common to find an immediate
need for preliminary injunctive relief . . . without a formal class ruling.’” Ill.
League of Advocates for Developmentally Disabled v. Ill. Dep’t of Human
Servs., No. 13 C 1300, 2013 WL 3287145, at *3 (N.D. Ill. June 28, 2013)
(quoting 3 Newberg on Class Actions § 9:45). Federal district courts thus
routinely enjoin state officials from enforcing unconstitutional policies
across the board, even where class certification has not been sought. See,
e.g., Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 WL
3634834, at *5 (D. Colo. July 23, 2014) (granting preliminary injunction
enjoining state officials from denying marriage licenses to same-sex couples,
or denying recognition of otherwise valid out-of-state marriages entered into
by same-sex couples, not only to named plaintiff couples); De Leon v. Perry,
975 F. Supp. 2d 632, 666 (W.D. Tex. 2014) (same); see also Evans v. Utah,
21 F. Supp. 3d 1192, 1215 (D. Utah 2014) (granting preliminary injunction
1 In addition, because the District Court has multiple similar cases on its
docket, “the interest of efficiency and economy compel entry” of class-wide Footnote continued on next page
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15
enjoining state officials from applying state’s marriage bans retroactively to
same-sex couples, not only to named plaintiff couples).
III. DENYING THE REQUESTED STAY WOULD NOT RESULT
IN IRREPARABLE INJURY TO DEFENDANT.
As before, denying Davis’ requested stay will not result in irreparable
harm to her. To the extent that Davis is facing potential contempt sanctions,
any “harm” results from her own choice to disobey federal courts orders, not
from the orders themselves. In any event, the threat of contempt for willful
violations of the District Court’s valid orders is not “irreparable injury” that
would justify a stay.
The issue on a motion for a stay is whether compliance with the
order sought to be stayed would result in irreparable injury, not
whether sanctions imposed for a contempt of court would cause
irreparable injury. . . . It would surely be anomalous to permit
the contumacious appellant to satisfy the irreparable injury
component by pointing to the consequences of his own
contempt . . . .
In re Frankel, 192 B.R. 623, 630 (Bankr. S.D.N.Y. 1996) (emphasis added).
See also Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468,
1480 (9th Cir. 1992) (“It is well established that even the assertion of
constitutional rights may be burdened by requiring those who assert them to
risk contempt.”).
Footnote continued from previous page
preliminary injunctive relief at this stage. Cf. Lee, 2013 WL 6490577, at *2.
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16
IV. A STAY, IF GRANTED, WOULD RESULT IN ONGOING,
IRREPARABLE HARM TO MEMBERS OF THE PUTATIVE
CLASS.
If the District Court’s September 3 Order were stayed, Defendant
Davis’ policy of refusing to issue licenses to qualified applicants –i.e.,
members of the putative class of plaintiffs –would directly and substantially
burden their fundamental right to marry, in that it would preclude them from
obtaining marriage licenses in Rowan County even though such licenses are
a legal prerequisite for marriage in Kentucky. KRS § 402.080. As previously
noted, the Rowan County Clerk’s office issued approximately two hundred
marriage licenses per year prior to the Obergefell decision thus enabling
roughly four hundred people, annually, to exercise their fundamental right to
marry. [RE #26 (15-5880): 7/20/15 Hrg. Transcript, Page ID #243 (212
licenses issued in 2014); id. (99 licenses issued in first half of 2015).] If the
requested stay were granted, no one would be permitted to obtain a marriage
license in Rowan County during the pendency of Davis’ appeal even though
this Court has previously concluded that “[t]here is thus little or no
likelihood that the Clerk in her official capacity will prevail on appeal.” [RE
#28-1 (15-5880): Order.]
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17
IV. THE PUBLIC INTEREST FAVORS DENYING THE
REQUESTED STAY.
The public has an interest in treating all families equally under the
Constitution. Cf. Latta v. Otter, 771 F.3d 496 (9th Cir. 2014) (“The public’s
interest in equality of treatment of persons deprived from important
constitutional rights . . . also supports dissolution of the stay of the district
court’s order.”). The public interest thus also supports denying the requested
stay and allowing the District Court’s September 3 ruling modifying the
preliminary injunction to take effect.
Federalism does not compel a different result. Enjoining a public
official, in her official capacity, from committing future violations of others’
federally protected rights is perfectly compatible with notions of federalism
and comity because “the availability of prospective relief of the sort awarded
in Ex parte Young gives life to the Supremacy Clause.” Green v. Mansour,
474 U.S. 64, 68 (1985).
CONCLUSION
Because all of the relevant factors weigh in favor of denying the
requested stay, including that Davis is unlikely to succeed on the merits of
her appeal and that she will not suffer a legally cognizable irreparable injury
if the stay were denied, Plaintiffs respectfully request that the motion for a
stay be denied.
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18
Respectfully submitted,
/s/ William E. Sharp
Daniel J. Canon
Laura E. Landenwich
L. Joe Dunman
CLAY DANIEL WALTON & ADAMS, PLC
462 South Fourth Street
Suite 101
Louisville, KY 40202
(502) 561-2005
ACLU OF KENTUCKY Cooperating
Attorneys
dan@justiceky.com
laura@justiceky.com
joe@justiceky.com
Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, DC 20005
(202) 675-2330
dmach@aclu.org
William E. Sharp
Legal Director
ACLU OF KENTUCKY
315 Guthrie Street, Suite 300
Louisville, KY 40202
(502) 581-9746
sharp@aclu-ky.org
Ria Tabacco Mar
James D. Esseks
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, NY 1004
(212) 549-2627
rmar@aclu.org
jesseks@aclu.org
Counsel for Plaintiffs-Appellees
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CERTIFICATE OF SERVICE
I hereby certify that I caused a true and correct copy of
APPELLEES’ RESPONSE OPPOSING MOTION TO STAY
DISTRICT COURT’S SEPTEMBER 3, 2015 INJUNCTION ORDER to
be served September 15, 2015, by operation of this Court’s electronic filing
system, on the following:
Jonathan D. Christman
Horatio G. Mihet
Roger Gannam
Liberty Counsel
PO Box 540774
Orlando. FL 32854
jchristman@lc.org
hmihet@lc.org
rgannam@lc.org
A.C. Donahue
DONAHUE LAW GROUP, P.S.C.
P.O. Box 659
Somerset, KY 42502
ACDonahue@DonahueLawGroup.com
Counsel for Kim Davis
/s/ William E. Sharp
William E. Sharp
ACLU OF KENTUCKY
315 Guthrie Street, Suite 300
Louisville, KY 40202
(502) 581-9746
sharp@aclu-ky.org
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Case No. 15-5880
IN THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
APRIL MILLER, PH.D., KAREN ANN ROBERTS, SHANTEL BURKE,STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY,
L. AARON SKAGGS, and BARRY W. SPARTMANPlaintiffs/Appellees
v.
KIM DAVIS, INDIVIDUALLYThird-Party Plaintiff/Defendant/Appellant
v.
STEVEN L. BESHEAR and WAYNE ONKST,IN THEIR OFFICIAL CAPACITIES
Third-Party Defendants/Appellees
Appeal fromUnited States District Court for the Eastern District of Kentucky
Case No. 15-cv-044-DLBHonorable David L. Bunning, Presiding
RESPONSE TO EMERGENCY MOTION FOR IMMEDIATECONSIDERATION AND MOTION TO STAY DISTRICT COURT’S
SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL [DE 43]
WILLIAM M. LEAR, JR.PALMER G. VANCE IISTOLL KEENON OGDEN PLLC300 West Vine Street, Suite 2100Lexington, Kentucky 40507Counsel for Steven L. Beshear and WayneOnkst in their Official Capacities
September 15, 2015
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1
Come the appellees Steven L. Beshear, in his official capacity as Governor
of Kentucky, and Wayne Onkst, in his official capacity as State Librarian and
Commissioner of Kentucky Department for Libraries and Archives (collectively
“State Appellees”), by counsel, and pursuant to the briefing letter of September 11,
2015, respectfully tender their response in opposition to the Emergency Motion for
Immediate Consideration and Motion to Stay District Court’s September 3, 2015
Injunction Order Pending Appeal (the “Motion”) [DE 43] of the appellant Kim
Davis. To the extent the Motion involves the State Appellees, it must be denied
because Davis’ claims against the State Appellees must be dismissed.
I. FACTUAL AND PROCEDURAL BACKGROUND
This Motion is the latest in Appellant Kim Davis’ (“Davis”) ongoing efforts
to avoid compliance with Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Davis is
the elected Clerk of Rowan County, Kentucky, and, along with her deputy clerks,
is responsible for issuing marriage licenses to qualified couples. See KRS Ch. 402.
Following Obergefell, Davis’ office stopped issuing marriage licenses because she
contends that issuing licenses to same-sex couples violates her rights to free
exercise of religion, free speech, and to be free from religious tests for holding
office. [See, e.g. DE 29, Davis Response to Motion for Preliminary Injunction,
Page ID 318-646]. Plaintiffs/Appellees (“Plaintiffs”) are a group of same-sex and
opposite-sex couples residing in Rowan County who brought suit against Davis for
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2
unlawfully restricting exercise of their fundamental right of marriage. [DE 1,
Complaint, Page ID 1].
The District Court entered a preliminary injunction that enjoins Davis in her
official capacity from applying her “no marriage licenses” policy. [DE 43,
Memorandum Opinion and Order (“Preliminary Injunction”), Page ID 1146-73].
The District Court thoughtfully analyzed each of Davis’ constitutional arguments
and found each to be without merit. [Id. at 16-28, Page ID 1161-73]. Davis filed
this interlocutory appeal from the Preliminary Injunction. [DE 44, Notice of
Appeal, Page ID 1174]. The District Court thereafter clarified the scope of the
Preliminary Injunction, finding that Davis is enjoined from applying her “no
marriage licenses” policy not just to the Plaintiffs but to all qualified couples. [DE
74, Order (“Clarified Injunction”), Page ID 1557]. Davis has now appealed from
that Order as well. [DE 82, Amended Notice of Appeal, Page ID 1785].1
This Court previously denied Davis’ request for a stay of the Preliminary
Injunction pending appeal, finding that her position “cannot be defensibly argued”
and that “[t]here is thus little or no likelihood” of success on appeal. [DE 28 at 3].
1 Davis willfully defied the Preliminary Injunction and Clarified Injunction byrefusing to issue marriage licenses to qualified couples. [DE 67, Motion forContempt, Page ID 1477-87]. The District Court found Davis to be in contemptand remanded her to federal custody. [DE 75, Order, Page ID 1558-59]. TheDistrict Court released Davis from custody after finding that Davis’ deputy clerkswould issue licenses and directing Davis not to interfere in their issuance. [DE 96,Order, Page ID 1899].
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3
The United States Supreme Court likewise denied Davis’ request for a stay of the
Preliminary Injunction. [DE 30].
The present Motion now seeks the same relief as to the Clarified Injunction
– a stay pending appeal. Davis states that the latest stay is sought not because of
her constitutional objections to issuing same-sex marriage licenses but “only the
issue of the district court’s acting without jurisdiction” to enter the Clarified
Inunction. [Motion at 2].
In an apparent attempt to shift blame for her refusal to follow the law, Davis
impleaded the State Appellees by Third-Party Complaint. [DE 34, Third-Party
Complaint, Page ID 745-92]. Davis alleges that “Kentucky’s marriage policies, as
effected by Governor Beshear and Commissioner Onkst” are unlawful, and she
seeks declaratory and injunctive relief from these policies. [Id. at ¶¶ 46-147].
Davis contends that “Kentucky marriage policies” violate her rights of free
exercise of religion, free speech, and constitute an unlawful religious test for
holding office. [Id.]. Notably, these are the same constitutional allegations raised
as defenses to Plaintiffs’ claims and rejected by the District Court and this Court.
State Appellees have moved to dismiss the Third-Party Complaint on
numerous grounds, including Eleventh Amendment immunity, lack of standing,
and failure to state a claim upon which relief can be granted. [DE 92, Motion to
Dismiss Third-Party Complaint, Page ID 1845]. State Appellees’ motion is
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4
pending with the District Court. The District Court recently denied Davis’ request
for an injunction against the State Appellees. [DE 103, Memorandum Order, Page
ID 2175-80]. The present Motion is likewise without merit and should be denied.
II. ARGUMENT
To the extent Davis’ Motion affects the State Appellees, it must be denied.2
The State Appellees are entitled to dismissal of claims against them in the District
Court, and consequently should not be parties to this appeal. As noted above, the
State Appellees timely moved to dismiss the Third-Party Complaint and that
motion is currently pending. [DE 92, Motion to Dismiss Third-Party Complaint,
Page ID 1845].
State Appellees are entitled to a ruling on their Motion to Dismiss before this
Court considers Davis’ present motion both because it would be dispositive of all
claims against the State Appellees and because Eleventh Amendment immunity
has been raised. See, e.g. Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(immunity must be resolved “at the earliest possible stage in litigation”). The State
Appellees’ arguments are more fully set forth in their Motion to Dismiss Third-
Party Complaint, which is incorporated herein by reference. Because the State
2 Neither this appeal nor the present Motion appears to raise issues that actuallyinvolve the State Appellees. Yet, Davis has named State Appellees as parties tothe appeal.
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5
Appellees are entitled to dismissal of Davis’ claims against them, the Motion must
be denied.
III. CONCLUSION
For the reasons set forth above, the State Appellees respectfully request
entry of an Order denying Davis’ Emergency Motion for Immediate Consideration
and Motion to Stay District Court’s September 3, 2015 Injunction Order Pending
Appeal [DE 43].
Respectfully submitted,
STOLL KEENON OGDEN PLLC300 West Vine Street, Suite 2100Lexington, Kentucky 40507-1380(859) 231-3000(859) 253-1093 facsimile
By: /s/ Palmer G. Vance IIWilliam M. Lear, Jr.Palmer G. Vance II
Counsel for Appellees GovernorSteven L. Beshear and CommissionerWayne Onkst in their Official Capacities
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6
CERTIFICATE OF SERVICEI hereby certify that I have filed the foregoing with the Court’s ECF system
on the 15th day of September 2015, which simultaneously serves a copy to thefollowing via electronic mail:
Daniel J. CanonLaura E. LandenwichLeonard Joe DunmanCLAY DANIEL WALTON ADAMS, PLCdan@dancanonlaw.comlaura@justiceky.comjoe@justiceky.comCOUNSEL FOR PLAINTIFFS
William Ellis SharpACLU OF KENTUCKYsharp@aclu-ky.orgCOUNSEL FOR PLAINTIFFS
James D. EsseksRia Tabacco MarDaniel MachHeather WeaverAMERICAN CIVIL LIBERTIES UNIONjesseks@aclu.orgrmar@aclu.orgdmach@aclu.orghweaver@aclu.orgCOUNSEL FOR PLAINTIFFS
Anthony Charles DonahueDONAHUE LAW GROUP, PSCacdonahue@donahuelawgroup.comCOUNSEL FOR KIM DAVIS
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7
Mathew D. StaverHoratio G. MihetRoger K. GannamJonathan D. ChristmanLIBERTY COUNSELcourt@lc.orghmihet@lc.orgrgannam@lc.orgjchristman@lc.orgCOUNSEL FOR KIM DAVIS
/s/ Palmer G. Vance IICounsel for Appellees GovernorSteven L. Beshear and CommissionerWayne Onkst in their Official Capacities
119363.152876/4428555.5
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No. 15-5880
__________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________________________
APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE;
STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON
SKAGGS; and BARRY SPARTMAN,
Plaintiffs-Appellees,
v.
KIM DAVIS, Individually,
Defendant-Appellant.
__________________________
On Appeal From The United States District Court
For The Eastern District of Kentucky
In Case No. 15-cv-00044 Before The Honorable David L. Bunning
__________________________
APPELLANT KIM DAVIS’ REPLY IN SUPPORT OF EMERGENCY
MOTION TO STAY DISTRICT COURT’S SEPTEMBER 3, 2015
INJUNCTION ORDER PENDING APPEAL
__________________________
A.C. Donahue Mathew D. Staver, Counsel of Record
DONAHUE LAW GROUP, P.S.C. Horatio G. Mihet
P.O. Box 659 Roger K. Gannam
Somerset, Kentucky 42502 Jonathan D. Christman
(606) 677-2741 LIBERTY COUNSEL
ACDonahue@DonahueLawGroup.com P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
court@lc.org / hmihet@lc.org /
rgannam@lc.org / jchristman@lc.org
Counsel for Appellant Kim Davis
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1
Appellant Kim Davis (“Davis”) hereby submits this Reply in support of her
motion for a stay pending appeal of the district court’s September 3, 2015 injunction
order (hereinafter, the “Expanded Injunction”).
INTRODUCTION
In opposing a stay of the Expanded Injunction pending appeal, Plaintiffs do
not dispute, nor can they, any of the following facts: (1) Plaintiffs did not originally
request a class-wide injunction, choosing instead to seek relief only for the “Named
Plaintiffs” specifically; (2) the district court did not originally grant a class-wide
injunction, instead granting precisely (and only) what Plaintiffs requested; (3)
Plaintiffs did not oppose a stay of class-based proceedings after the original
injunction was already on appeal to this Court; (4) the district court granted the
Expanded Injunction without notice and without allowing Davis the opportunity to
submit any written opposition; and, (5) the district court expressly acknowledged
that the Expanded Injunction was relief that Plaintiffs “did not request” in the
“original motion” for a preliminary injunction. Additionally, Plaintiffs fail to bring
to this Court’s attention the district court’s most recent confirmation from five days
ago that its September 3, 2015 order undeniably “expanded its ruling” already on
appeal to this Court. (R.103, Sept. 11, 2015 Order, PgID 2177 (emphasis added).)1
1 This September 11, 2015 order denying a motion for injunction pending
appeal was entered by the district court after Davis filed her Emergency Motion to
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To its credit, the district court has been consistent and unmistakably clear in
what it did in granting the Expanded Injunction—but it simply had no jurisdiction
to do it when it did. Rather than conceding the district court’s plain error in light of
the undisputed facts, the district court’s own statements, and binding precedent from
this Court, Plaintiffs engage in revisionist history, hollow distraction, willful
omission of the district court’s most recent statements directly on point, and pure
speculation in hopes that this Court will similarly ignore basic principles of
jurisdiction and due process. Simply put, Davis’ appeal of the August 12, 2015
injunction deprived the district court of any jurisdiction to alter or expand that
injunction. Intervention by this Court is therefore necessary to stay the Expanded
Injunction.
REPLY ARGUMENT
I. Obtaining A Stay Of The Expanded Injunction From The District Court
Is Impracticable.
Contrary to Plaintiffs’ suggestion, the record in this case demonstrates that
moving for a stay of the Expanded Injunction in the district court would be
impracticable. This conclusion is not based upon a “single sentence” in the Motion,
see Pls.’ Resp., at 7, but rather, the obvious deduction of the circumstances
Stay the September 3, 2015 Injunction Order Pending Appeal (hereinafter,
“Motion”) in this Court. Otherwise, Davis would have cited it in her Motion.
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surrounding, and specific directives provided by, the district court when it granted
the Expanded Injunction at the September 3, 2015 contempt hearing.
As set forth previously, the district court took up Plaintiffs’ motion to “clarify”
just 48 hours after it was filed, at the beginning of a hearing noticed only for a
contempt motion on the district court’s original and limited injunction, and without
giving Davis an opportunity to submit a written opposition. Over against counsel’s
objections to the lack of notice, due process, and jurisdiction to expand the injunction
on appeal, the district court nonetheless granted the Expanded Injunction and flatly
stated that “We’ll just include that as part of the appeal. . . And the Sixth Circuit
can certainly decide if that’s appropriate.” (R.78, Contempt Hr’g, PgID 1580-81
(emphasis added).) The message from the district court was self-evident: if Davis
does not like it, she can take it up with this Court. As such, the ordinary course of
first filing a motion for a stay of an order in the district court is unnecessary here.2
2 The cases cited by Plaintiffs do not compel a different result. In Baker v.
Adams Cnty., 310 F.3d 927, 931 (6th Cir. 2002), the party seeking a stay in that case
sought relief in this Court that would require “significant judicial oversight” by a
court without first proposing such relief in the district court. In S.E.C. v. Dunlap,
253 F.3d 768, 774 (4th Cir. 2001), the party seeking a stay failed to timely appeal
the order at issue and then later sought to intervene in the appeal and seek a stay
from the appellate court rather than the district court. Here, staying the Expanded
Injunction requires no ongoing oversight, Davis timely appealed the Expanded
Injunction, and the district court unambiguously punted the matter to this Court.
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II. Davis Has A Strong Likelihood Of Success On The Merits Of Her Appeal
Of The “Expanded” (In The District Court’s Own Words) Injunction.
The district court agrees that it “expanded” its preliminary injunction while it
was on appeal to this Court. In granting the Expanded Injunction, the district court
explicitly recognized that the so-called “clarification” sought by Plaintiffs was, in
fact, to add relief to the Injunction which was not sought by Plaintiffs in their motion
for preliminary injunction. (R.78, Contempt Hr’g, PgID 1578:20-25 (“I recognize
they did not request it in the original motion.” (emphasis added)).) Even more
recently, four days before Plaintiffs filed their opposition in this Court, the district
court expressly acknowledged, again, its expansion of the injunction: “On
September 3, 2015, the Court granted Plaintiffs’ Motion Pursuant to Rule 62(c) to
Clarify the Preliminary Injunction Pending Appeal and expanded its ruling to
include other individuals who are legally eligible to marry in Kentucky. (Docs. #68
and 74).” (R.103, Sept. 11, 2015 Order, PgID 2177 (emphasis added).)
Under well-established Sixth Circuit precedent, the district court had no
jurisdiction to expand its injunction that was already on appeal to this Court.3 This
3 See, e.g., City of Cookeville, Tenn. v. Upper Cumberland Elec. Membership
Corp., 484 F.3d 380, 388, 394 (6th Cir. 2007) (“The district court did not have
jurisdiction to issue the injunction because the injunction sought to expand the
district court's previous order.”) (emphasis added); N.L.R.B. v. Cincinnati Bronze,
Inc., 829 F.2d 585, 588 (6th Cir. 1987); Am. Town Ctr. v. Hall 83 Assocs., 912 F.2d
104, 110-11 (6th Cir. 1990).
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Court has drawn a crucial distinction between expansion (or enlargement) of orders,
including injunctions, and enforcement of them. See Cookeville, 484 F.3d at 394
(citing Am. Town Ctr., 912 F.2d at 110). Thus, nothing in Federal Rule of Civil
Procedure 62(c)4 permits an expansion or enlargement of an injunction order on
appeal to this Court. In this matter, the district court did not “modify” its original
injunction—instead, by its own words, it significantly “expanded” the injunction and
provided relief that Plaintiffs did not originally request. As such, the cases cited by
Plaintiffs as authority for modifying an injunction are inapplicable.
Moreover, modifications of injunction orders on appeal to allegedly preserve
a “status quo” are limited to maintaining the status quo “between the parties” to the
injunction on appeal, not non-parties. See, e.g., George S. Hofmeister Family Trust
v. Trans Indus. of Ind., No. 06-13984, 2007 WL 128932, at *2 (E.D. Mich. 2007).
The district court cannot “alter the status of the case as it rests before the court of
appeals.” Coastal Corp. v. Tex. E. Corp., 869 F.2d 817, 820 (5th Cir. 1989). Further,
Plaintiffs’ unfounded reference to “plaintiffs” in “companion cases” who will
allegedly be unable to obtain marriage licenses if this Court stays the Expanded
4 In their opposition, Plaintiffs do not quote the correct language of Rule 62(c),
as it currently exists in the Federal Rules of Civil Procedure. See Pls.’ Resp., at 8. In
relevant part, the rule actually provides that “While an appeal is pending from an
interlocutory order or final judgment that grants, dissolves, or denies an injunction,
the court may suspend, modify, restore, or grant an injunction on terms for bond or
other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c).
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Injunction is either woefully uninformed (at best) or intentionally misleading and
disingenuous to this Court, for it is widely reported that those very plaintiffs obtained
marriage licenses on the same day as the Plaintiffs here (R.78, Status Report, PgID
1798).5 Plaintiffs’ further speculation and hearsay-laden rhetoric about other persons
is also unsupported, and irrelevant to the district court’s lack of jurisdiction.
Additionally, the district court was not attempting to “preserve the integrity
of the proceedings” in this Court. See Pls.’ Resp., at 10. To the contrary, the district
court acknowledged it was granting new relief not previously requested by Plaintiffs
and doing what it deemed to “make practical sense”—a makeshift standard that
directly contravenes well-established precedent. Jurisdiction is not a results-oriented
analysis, as Plaintiffs’ misplaced arguments and the district court’s conclusion
suggest. Nor is it determined by pragmatism. To the contrary, like service of process
(which the district court described as “road blocks to getting to the merits,” R.21,
5 Plaintiffs and the district court are presumably referring to the cases of David
Ermold, et al. v. Kim Davis, et al., No. 15-cv-00046-DLB, and James Yates, et al. v.
Kim Davis, et al., No. 15-cv-00062-DLB, both of which are also pending in the
United States District Court for the Eastern District of Kentucky. The named
Plaintiffs in those cases have secured marriage licenses not authorized by Davis. See,
e.g., Marriage Licenses Issued in Kentucky, but Debate Continues, N.Y. TIMES,
Sept. 4, 2015, available at http://www.nytimes.com/2015/09/05/us/kim-davis-same-
sex-marriage.html?_r=0 (last accessed Sept. 16, 2015); David Ermold and David
Moore finally issued marriage license, DAILYMAIL.COM, Sept. 4, 2015, available at
http://www.dailymail.co.uk/video/news/video-1212676/David-Ermold-David-
Moore-finally-issued-marriage-license.html (last accessed Sept. 16, 2015).
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Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 117:1-119:7), jurisdiction is foundational
to the rule of law and preliminary to a federal court’s authority to render lawful
decisions. Without it, a federal court order is null and void. As such, what actually
challenges the integrity of the proceedings in this case is the Expanded Injunction,
which the district court had no authority to enter, and which should therefore be
stayed.
Furthermore, in this matter, it is of no consequence whatsoever that a district
court can grant class-wide injunctive relief before certifying a class. It is likewise of
no consequence that some district courts have granted injunctive relief that benefits
a purported class of persons even without a pending class action complaint.6 The
cases cited by Plaintiffs as the purported authority for the district court’s Expanded
Injunction involve a district court power to enter an original injunction, rather than
6 The cases of Lee v. Orr, No. 13-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec.
10, 2013), Strouchler v. Shah, 891 F. Supp. 2d 504, 517 (S.D.N.Y. 2012), Thomas
v. Johnston, 557 F. Supp. 879, 916 n.29 (W.D. Tex. 1983), Welch v. Brown, No. 12-
13808, 2013 WL 3224416, at *3 (E.D. Mich. June 25, 2013), Ill. League of
Advocates for Developmentally Disabled v. Ill. Dep’t of Human Servs., No. 13-1300,
2013 WL 3287145, at *3 (N.D. Ill. June 28, 2013), Burns v. Hickenlooper, No. 14-
1817, 2014 WL 3634834, at *5 (D. Colo. July 23, 2014), De Leon v. Perry, 975 F.
Supp. 2d 632, 666 (W.D. Tex. 2014), and Evans v. Utah, 21 F. Supp. 3d 1192, 1215
(D. Utah 2014), are therefore easily distinguished. Unlike this matter, the foregoing
cases relied upon by Plaintiffs all involve injunctions entered where a motion for
injunctive relief was specifically sought on behalf of both named plaintiffs and
those similarly situated and/or the original injunction order entered by the
district court specifically granted class-based relief. Neither of these critical
factual predicates exist in this case.
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its power to expand injunctions after they have been appealed and after the district
court has been divested of its jurisdiction. Indeed, the critical, and only, inquiry that
matters here is what the district court granted in its original injunction before that
order was appealed to this Court, and before that appeal deprived the district court
of jurisdiction to expand or enlarge that injunction. And “what” the district court
ordered in this case in its original August 12, 2015 injunction is undisputed: an
injunction limited exclusively to the named Plaintiffs in this case. (R.78, Contempt
Hr’g, PgID 1578:20-25; R.103, Sept. 11, 2015 Order, PgID 2177.) Accordingly,
what the Plaintiffs could have requested in their original injunction, and what the
district court could have ordered prior to the appeal of that injunction, are misplaced
inquiries that are inconsequential and have no bearing on jurisdiction.
III. The Remaining Factors Also Favor Staying A District Court Order That
Is Null And Void.
Because the likelihood of success on Davis’ appeal of the Expanded
Injunction is clear based upon the district court’s lack of jurisdiction, this Court need
not even make specific findings on the other factors weighed in granting a stay since
“fewer factors” are dispositive. See Six Clinics Holding Corp., II v. Cafcomp Sys.,
Inc., 119 F.3d 393, 399 (6th Cir. 1997). Nevertheless, the remaining factors provide
additional support for granting a stay of the Expanded Injunction.
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Because orders exceeding a district court’s jurisdiction are “null and void,”
U.S. v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984), no public interest is served
by upholding the district court’s Expanded Injunction. The filing of a notice of
appeal is a point of “jurisdictional significance,” conferring jurisdiction on this Court
and divesting the district court of same. Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982). To permit the district court to grant the Expanded
Injunction sets a dangerous and harmful precedent for parties challenging by right
injunction orders in this Court. Such persons (like Davis) could be subjected to
competing obligations and onerous burdens for exercising their appellate rights, with
potentially grave (and escalating) consequences.
Those consequences to Davis are real in this case. The district court has
already found Davis in contempt for allegedly violating the district court’s original
August 12, 2015 injunction order, and incarcerated Davis for six days as a sanction
for the purported contempt. This immeasurable harm and loss of freedom, coupled
with the district court’s ominous threats in its September 8, 2015 release order—
stating that any interference with the issuance of marriage licenses “to all legally
eligible couples” will “be considered a violation of this Order and appropriate
sanctions will be considered” (R.89, Release Order, PgID 1828)—demonstrate that,
according to the district court, any violation of its Expanded Injunction (rather than
its original injunction), will be cause for further contempt proceedings. Such threats
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hold Davis hostage on an order the district court had no lawful jurisdiction to
entertain, let alone authority to enter.
RELIEF REQUESTED
For the reasons set forth above and in prior briefing, Appellant Kim Davis
respectfully requests that this Court: (1) grant immediate consideration and (2) enter
an order staying the district court’s September 3, 2015 Expanded Injunction pending
final resolution of the appeal in this Court.
DATED: September 16, 2015 Respectfully submitted:
A.C. Donahue
Donahue Law Group, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
ACDonahue@DonahueLawGroup.com
/s/ Jonathan D. Christman
Mathew D. Staver, Counsel of Record
Horatio G. Mihet
Roger K. Gannam
Jonathan D. Christman
Liberty Counsel, P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
court@lc.org / hmihet@lc.org /
rgannam@lc.org / jchristman@lc.org
Counsel for Appellant Kim Davis
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CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of September, 2015, I caused the
foregoing document to be filed electronically with the Court, where it is available
for viewing and downloading from the Court’s ECF system, and that such electronic
filing automatically generates a Notice of Electronic Filing constituting service of
the filed document upon the following:
William Ellis Sharp Daniel Mach
ACLU of Kentucky Heather L. Weaver
315 Guthrie Street, Suite 300 ACLU Foundation
Louisville, KY 40202 915 15th Street, NW, Suite 6th Floor
sharp@aclu-ky.org Washington, DC 20005
dmach@aclu.org
Daniel J. Canon hweaver@aclu.org
Laura E. Landenwich
Leonard Joe Dunman James D. Esseks
Clay Daniel Walton Adams, PLC Ria Tabacco Mar
462 S. Fourth Street, Suite 101 ACLU Foundation
Louisville, KY 40202 125 Broad Street, 18th Floor
dan@justiceky.com New York, NY 10004
laura@justiceky.com jesseks@aclu.org
joe@justiceky.com rmar@aclu.org
Counsel for Appellees
William M. Lear, Jr.
Palmer G. Vance II
Stoll Keenon Ogden PLLC
300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
william.lear@skofirm.com
gene.vance@skofirm.com
Counsel for Third Party Defendants-Appellees
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/s/ Jonathan D. Christman
Jonathan D. Christman
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
jchristman@lc.org
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No. 15-5880
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APRIL MILLER, et al.,
Plaintiffs-Appellees,
v.
KIM DAVIS, in her individual and official capacity
as Rowan County Clerk,
Defendant-Appellant,
v.
STEVEN L. BESHEAR, in his official capacity as
Governor of Ky.; WAYNE ONKST, in his official
capacity as State Librarian and Commissioner,
Kentucky Department of Libraries and Archives,
Third Party Defendants-Appellees.
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O R D E R
Before: KEITH, ROGERS, and DONALD, Circuit Judges.
Defendant Kim Davis is before this court seeking review of a preliminary injunction
entered on August 12, 2015, enjoining her, in her official capacity, “from applying her ‘no
marriage licenses’ policy to future marriage license requests submitted by the Plaintiffs.” She
also appeals the September 3, 2015 order modifying the preliminary injunction to enjoin her
from applying her no-marriage-license policy to future marriage license requests submitted by
individuals who are eligible to marry in Kentucky. On August 28, 2015, we denied Davis’s
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No. 15-5880
-2-
motion for a stay of the August 12 preliminary injunction pending appeal. She now moves for a
stay pending appeal of the September 3 preliminary injunction. The plaintiffs and the third-party
defendants oppose the motion for a stay.
Davis has not sought a stay pending appeal in the district court as required by Federal
Rule of Appellate Procedure 8(a)(1). Davis argues that it would be impracticable to seek a stay
pending appeal because of the “extraordinary doggedness of the district court to expand the
Injunction, without jurisdiction or fair notice and opportunity to be heard.” This is not valid
reason to excuse moving the district court for a stay pending appeal in the context of this case.
Davis’s motion for a stay of the September 3 preliminary injunction pending appeal is
DENIED for failure to comply with Rule 8(a)(1).
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Deborah S. Hunt Clerk
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988 Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: September 17, 2015
Mr. Daniel J. Canon Law Offices 462 S. Fourth Street Suite 1730 Louisville, KY 40202 Mr. Jonathan D. Christman Liberty Counsel P.O. Box 540774 Orlando, FL 32854 Mr. Anthony Charles Donahue Donahue Law Group P.O. Box 659 Somerset, KY 42502-0659 Mr. Leonard Joe Dunman Clay, Daniel, Walton & Adams 462 S. Fourth Street Suite 101 Louisville, KY 40202 Mr. James D. Esseks ACLU 125 Broad Street 18th Floor New York, NY 10004 Mr. Roger K. Gannam Liberty Counsel P.O. Box 540774 Orlando, FL 32854
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Mr. Lawrence John Joseph Law Office 1250 Connecticut Avenue Suite 200 Washington, DC 20036 Ms. Laura E. Landenwich Clay, Daniel, Walton & Adams 462 S. Fourth Street Suite 101 Louisville, KY 40202 Mr. William M. Lear Jr. Stoll Keenon Ogden 300 W. Vine Street Suite 2100 Lexington, KY 40507 Mr. Daniel Mach American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005 Mr. Horatio Gabriel Mihet Liberty Counsel 1053 Maitland Center Commons Second Floor Maitland, FL 32751 Mr. William E. Sharp American Civil Liberties Union of Kentucky General Counsel 315 Guthrie Street Suite 300 Louisville, KY 40202 Mr. Mathew D. Staver Liberty Counsel P.O. Box 540774 Orlando, FL 32854 Ms. Ria Tabacco Mar ACLU 125 Broad Street 18th Floor
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New York, NY 10004 Mr. Palmer G. Vance II Stoll Keenon Ogden 300 W. Vine Street Suite 2100 Lexington, KY 40507 Ms. Heather L. Weaver American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005
Re: Case No. 15-5880, April Miller, et al v. Kim Davis Originating Case No. : 0:15-cv-00044
Dear Counsel,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Michelle M. Davis Case Manager Direct Dial No. 513-564-7025
cc: Mr. Robert R. Carr Enclosure
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION
APRIL MILLER, ET AL.,
Plaintiffs,
v.
KIM DAVIS, ET AL.,
Defendants.
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CIVIL ACTION
0:15-CV-00044-DLB
DISTRICT JUDGE
DAVID L. BUNNING
KIM DAVIS,
Third-Party Plaintiff,
v.
STEVEN L. BESHEAR, in his official
capacity as Governor of Kentucky, and
WAYNE ONKST, in his official capacity
as State Librarian and Commissioner,
Kentucky Department for Libraries and
Archives,
Third-Party Defendants.
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[PROPOSED] ORDER
This Court, having reviewed Defendant/Third-Party Plaintiff Kim Davis’ Emergency
Motion for Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order
Pending Appeal, the prior briefing on this same Motion in the Sixth Circuit, and for good cause
shown, GRANTS Kim Davis’ Motion to Stay September 3, 2015 Injunction Order Pending
Appeal.
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2
IT IS HEREBY ORDERED that the September 3, 2015 Injunction Order entered by this
Court is stayed pending resolution of the merits of Davis’ appeal of that order to the Sixth Circuit.
_____________________________
HON. DAVID L. BUNNING
DISTRICT JUDGE
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