Citing “conduct that violates civil rights,” lawyers for Gov. Matt Bevin say former Rowan County Clerk Kim Davis should be held responsible for nearly $225,000 in legal fees and court costs incurred by couples who sued her in 2015 when she refused to issue marriage licenses because of her religious opposition to same-sex marriage.
Although Bevin, a Republican, publicly has praised Davis as “an inspiration ... to the children of America,” his attorneys are taking a more critical tone in court briefs, blaming the ex-clerk for failing to do her job following the U.S. Supreme Court’s June 2015 decision legalizing gay marriage.
A three-judge panel will hear arguments about who should bear the case’s expenses Thursday at the U.S. 6th Circuit Court of Appeals in Cincinnati. A district judge ruled in 2017 that the couples suing for marriage licenses clearly prevailed and that the state of Kentucky must pay their fees and costs.
Bevin appealed that ruling, hoping to hand the bill instead to the Rowan County clerk’s office. Davis acted alone, without any state support, the governor’s lawyers told the 6th Circuit in briefs ahead of the oral arguments.
“Her local policy stood in direct conflict with her statutory obligation to issue marriage licenses to qualified Kentucky couples. The local policy also undermined the Commonwealth of Kentucky’s interest in upholding the rule of law,” Bevin attorney Palmer G. Vance II wrote in one brief.
“Davis had an independent and sworn duty to uphold the law as an elected county officer,” Vance wrote. “If fees are awarded, they must be the responsibility of the Rowan County clerk’s office, which should be deterred from engaging in conduct that violates civil rights — and leads to costly litigation.”
The governor’s general counsel, Steve Pitt, said Wednesday that Bevin still personally supports Davis.
“In contesting the federal court’s award of attorney’s fees against the commonwealth, outside counsel retained by the Beshear administration to represent the governor’s office have taken no position as to whether Ms. Davis acted unconstitutionally. Governor Bevin does not believe that she has done so and continues to support Ms. Davis’s actions,” Pitt said.
“Regardless, the federal court has held that she violated the plaintiffs’ constitutional rights and that the state must pay to the ACLU legal fees incurred as a result,” Pitt said. “Our outside counsel have only argued, given the court’s ruling, that if constitutional rights were violated, the taxpayers of Kentucky are not responsible to pay the ACLU’s attorney fees.”
At issue are the litigation expenses for eight people who sued Davis for refusing to grant them marriage licenses: April Miller, Karen Ann Roberts, Shantel Burke, Stephen Napier, Jody Fernandez, Kevin Holloway, L. Aaron Skaggs and Barry W. Spartman.
After the Supreme Court’s same-sex marriage decision, Davis announced that she held religious objections to gay marriage and no longer would grant marriage licenses to anyone in Rowan County. Her protest became international news, turning her into a symbol of conservative resistance, especially when U.S. District Judge David Bunning jailed her for several days for contempt of court.
Ultimately, Davis worked out a compromise with Bunning, allowing one of her deputies who had no objections to issue a modified marriage license to anyone who wanted it. Later, the state legislature removed county clerks’ names from Kentucky marriage licenses.
Rowan County voters denied Davis a second term as county clerk last November.
In 2017, Bunning ruled that the four couples clearly had prevailed in their litigation, and the state of Kentucky must reimburse them.
Davis’ statutory authority to issue Kentucky marriage licenses came from the state government, Bunning said. And had the state chosen to, he said, it could have pursued criminal penalties against Davis for official misconduct for refusing to do her duty, or the legislature could have impeached her and removed her from office.
Instead, the state legislature “modified the marriage license form to appease Davis,” he said. Bunning rejected holding Davis personally responsible for the money because the couples prevailed against her in her “official capacity” as a public official, not as an individual, he said.
“Davis represented the Commonwealth of Kentucky when she refused to issue marriage licenses to legally eligible couples. The buck stops there,” Bunning wrote.
In his appeal, Bevin’s lawyers say Bunning erred, the couples did not prevail, and therefore they are not entitled to be reimbursed for the expense of their lawsuit. If the 6th Circuit finds that the couples did prevail, the governor’s lawyers add, the cost should be borne by Rowan County’s clerk, not the state.
“The Rowan County clerk’s office, the entity actually enforcing Davis’ policy, is properly liable for any award of fees,” Vance wrote.
As he campaigned for governor in 2015 and in the three years since, Bevin publicly has supported Davis’ right to refuse service to couples at the courthouse because of her religious objections. In a video that Davis’ supporters posted online last year, Bevin called the clerk, then seeking re-election, “an inspiration.”
“Amid all the vitriol, all the nastiness, she stood firm. I think it’s beyond question that Kim Davis is an inspiration. Not only to leaders like myself, in the public arena and those outside the public arena, but to my children and to the children of America,” Bevin said in the video.
Attorneys for Rowan County and Davis have filed their own briefs arguing that neither the county nor the former clerk should be responsible for the couples’ legal fees and court costs. Rowan County says it had no control over the policies of Davis, who was an independently elected official. Davis says her authority to issue marriage licenses came from the Commonwealth of Kentucky.
“To the extent any fee award stands, the liability of the commonwealth should be affirmed because Davis at all times pursued and upheld commonwealth policy,” Davis attorney Roger K. Gannam wrote in one brief.
“Davis acted for the commonwealth in the issuance of marriage licenses,” Gannam wrote. “Marriage licensing is a quintessentially and exclusively state-level function in Kentucky.”
The couples who sued Davis would like finally to have a resolution, said Ria Tabacco Mar, senior staff attorney for the American Civil Liberties Union, which is handling the case for the plaintiffs.
If the couples win again at the 6th Circuit, as they expect to, they will request additional legal fees and court costs on top of the nearly $225,000 already at stake, to reflect the lengthy court battle that has been necessary to collect, Mar said.
“The Supreme Court ruled in the matter of marriage equality in the summer of 2015,” Mar said. “Unfortunately, there were a couple of people here and there who chose to resist that decision, including Kim Davis. And here we are still fighting three and a half years later.”