The legal battle over Rowan County Clerk Kim Davis isn’t over yet. Now it’s time to pay the lawyers.
Attorneys for the couples who sued Davis last year to get marriage licenses have asked U.S. District Judge David Bunning for an order letting them recoup $233,058 in legal fees and costs. Their lawsuit went to the U.S. Supreme Court and back, with Davis losing at every step and even going to jail for five days on contempt charges, before the Kentucky legislature made the point moot in April by changing the state’s marriage licenses to remove county clerks’ names.
That was the outcome Davis wanted. She objected on religious grounds to the legalization of same-sex marriage by the Supreme Court, and she didn’t want her name on licenses going to same-sex couples.
In August, Bunning dismissed the couples’ suit against Davis, finding that the legislature resolved the matter. But the altered marriage licenses don’t change the fact that Davis refused to do her duty last summer, and she forced the couples to sue in order to claim their civil right to marriage, lawyers for the couples say.
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“Courts recognize that when successful civil rights plaintiffs obtain a direct benefit from a court-ordered victory, such as in this case, they can be entitled to their legal expenses to deter future civil rights violations by government officials,” William Sharp, legal director of the Kentucky ACLU and one of the lawyers for the couples, said in a prepared statement.
In a response filed Monday, Davis’ lawyers urged Bunning to deny the request for legal fees. The couples did not prevail against Davis in the case, which was resolved in the legislature rather than a courtroom, wrote Roger K. Gannam of Liberty Counsel, the religious advocacy organization that has represented Davis. Since the couples did not prevail, their lawyers are not entitled to hand someone else the bill for their fees, Gannam wrote.
Separately, Rowan County filed a response saying that whatever Bunning decides about legal fees, the county government should not be forced to pay anything. Davis — an elected official — did not act on behalf of Rowan County when she refused to issue marriage licenses, and the county’s fiscal court did not control the internal operations of her office, wrote Jeffrey C. Mando, an attorney for Rowan County.
“County clerks are not employees of the county, but instead are the holders of elective office pursuant to the Kentucky Constitution,” Mando wrote.