Specifically, the lawful order of a Federal Court.
Terr, where will Ms. Davis, her lawyer or anyone else locate a court willing to rule the unsigned marriage licenses invalid?
In what court will they have any chance of prevailing?
You won’t answer this because you know there is no such court.
Man, if people like the OP are willing to die on a hill called “the clerk”, it’s a damn good things American gays didn’t settle for some half-assed “civil union” compromise, since the semantic battles could be endless.
Teddy Roosevelt coulda!
Thread’s over! You win!
Just to be clear, I think the federal court order supplies all the authority that is necessary.
But I think the court order was itself necessary, or at least arguably necessary. The statute says that the functions of a “ministerial officer” may be performed by his “lawful deputy” but doesn’t (that I can find) define “lawful deputy”.
In the absence of a statutory definition, the word has it’s ordinary meaning. And the ordinary meaning of “deputy” is “a person appointed or nominated to act for another or others, esp. to hold office or exercise authority instead of another; a person authorized to exercise on behalf of another the whole of his office ( general deputy), or some special function of it ( special deputy), but having no interest in the office”. (This is from the OED, but I’m sure other dictionaries are not going to say anything very different.)
If we are relying on the staff in the county clerk’s office to be the “lawful deputies” of the county clerk, we need to show that they have been appointed or nominated to exercise authority instead of her, or authorized to exercise her functions. We can’t just assume that the person who hands over the document is her deputy. This is a matter for evidence. It’s plainly not the case that, simply because they are employed in the office, they are her deputies; e.g. the janitor is not her deputy. We have to be able to point to some deputation of authority to them.
There are only two possibilities: she has deputed the authority to them, or there is some legal provision in Ky law which deputes it to them.
Section 61.035 is plainly not that provision, because that would be circular - “this provision deputes functions to the people to whom functions are deputed”. If there’s another statutory provision which provides the necessary deputation, I haven’t seen it.
We’re left with the clerk deputing her functions, which to be honest is what I would expect. She is elected to perform, and is accountable for, her functions, and in that framework it makes no sense that she would be unable to control their exercise by others. So it makes sense to me that she deputes her functions, the people to whom she deputes them are her “lawful deputies”, and section 61.035 then validates the exercise of her functions by her deputies.
We need evidence that she has deputed the function of issuing marriage licences. It might be in the contract of employment of the officials concerned, or it might be in some standing order/regulation that she has issued about the conduct of the business of her office, or somewhere else. But I think we can short circuit that enquiry because, if I’m right in thinking that deputing the functions of her office is something she does, then it’s something she can modify or reverse (again, because if she is to be responsible for the discharge of the function she must control it). And I assume that in the present circumstances she has done that, revoking any deputation which would authorise anyone in the office (other than herself) to issue marriage licences.
And, if she has done that, I don’t see that her assistants are “lawful deputies” with respect to the issue of marriage licences. And, if they aren’t, section 61.035 doesn’t operate to validate the licences.
Hence the need for the court to order the assistants to issue the licences. Without the court order its (at least from what I have seen so far) not clear that they have the authority to do so.
Did you actually read the court order? It’s been linked to in this thread twice now. And it states that the 6 employees in question are deputies within the meaning of KY law, and that they have the authority to issue licenses.
It’s not just any staff we’re talking about. They’re called Deputy County Clerks. Maybe that’s just a colloquialism, but I would think (absent evidence to the contrary) that whatever statute or order created that position, if only by so calling them, imputed to them the status of deputy to the County Clerk. In any event, that’s apparently how they function, without relying on specific deputation for each act taken in that capacity. If you had evidence that that wasn’t the custom, that they previously had not acted as deputies to the County Clerk, or had done so only with her specific and limited authorization, you might have a case, although I think the statute makes it an all or nothing thing, and that even if they had previously acted only on her specific instructions, that under that statute they are then authorized to perform all of the clerk’s functions without her further authorization until removed from their office.
The clerk and the deputies all have sworn the oath under s. 228 of Kentucky’s Constitution to, et alia, “. . . support the Constitution of the United States . . . and that I will faithfully execute, to the best of my ability, the office of _________________ according to law . . . .”
As already covered up-thread,KRS 402.100 (1) (c) specifically authorizes deputies to issue marriage licenses to same sex couples, and the Governor of Kentucky has directed that marriage licenses be issued to same sex couples.
So there you have it. The US Constitution is interpreted and applied by the highest court in the land. The deputies are sworn to uphold this Constitution. The deputies hold statutory authority to issue marriage licenses. The Governor of the state has directed that the law be followed. Now that’s what I call authorization.
Here’s a pic of one of the deputy issued marriage licences (with the parties’ addresses redacted for the photo).
Are you talking about this order? I’m not finding the statement that you say is there; are you paraphrasing something? I don’t see any discussion of the status of the deputy clerks. There’s plenty of mention of the routine involvement of deputy clerks in the issue of marriage licences, but no explicit discussion of the basis on which they do so, or the question of whether they can validly do so if the clerk withdraws, or purports to withdraw, their authority to do so.
Mind you, this is not the order which directs the deputies to issue the licences. It’s the earlier order enjoining Davis from applying a “no marriage licence” policy, so the absence of any discussion of the capacity of the deputy clerks is unsurprising. I know that when Davis ignored this order the court made a subsequent order directing the deputy clerks to issue the licences, and it may be that that’s the order you think I should be reading, but I don’t see any link to it in the thread.
My apologies if I’m being slow-witted, but could you repost the link to the order that states that the 6 employees in question are deputies within the meaning of KY law, and that they have the authority to issue licenses? Because, obviously, that order holes my analysis below the waterline, no doubt.
Re. your request in your final paragraph: look at my post immediately above yours, and pages 4, 5 and 6 of the discussed first decision.
In light of that, I suggest that the onus is now on you to cite where the duty of the deputies lays with the clerk, as opposed to their oath of office.
Well, if that’s the case, it should be trivial to post a link to the statute to that effect, but I don’t think anybody has done so. FWIW, my guess would be that there is no such statute; that the organisation and naming of the administrative staff of the county government isn’t regulated by statute, but is handled at a more administrative level.
I’m not suggesting that there was ever “a specific deputation for each act taken”; it would be easier for the County Clerk to do all the acts herself than to depute each one specifically. More likely there is a general deputation in place, which may be in an administrative rather than legislative instrument, and which may even be informal, a matter of custom and practice, established (if necessary) by, e.g., showing that there are arrangements in place to allow the deputy clerks to affix a facscimile of the County Clerk’s signature to licences, etc; ergo, the existence of those arrangements shows that the County Clerk has deputed them to issue the licences.
The precise way in which the deputation was effected is unimportant. What matters is whether, if the County Clerk tells them explicitly that they may not issue marriage licences, they are still lawfully deputed to perform the County Clerk’s function of issuing marriage licences? For that to be the case, surely there needs to be some basis for the deputation which is not the fiat of the County Clerk? There may well be such a basis but, so far, I’m not seeing anyone pointing to it. The job title alone is not a clincher, I think.
From page 4 of the order:
So, Davis herself represented to the court that these are “deputy clerks.” Then, in a footnote on the same page:
So, we’ve got 2 statements from Davis representing that the 6 employees in question are “deputy clerks” and that they do engage in the task of issuing marriage licenses. Then on page 5, we have:
So, that tells us that the marriage license may be completed by either a county clerk or a deputy clerk. So, to sum up, we have a statement in the ruling that either the county clerk or deputy clerk may issue and statements from Kim Davis, as recognized by the court, that the deputy clerks in her office do issue licenses and are called “deputy clerks.” So, this whole thing you have about trying to tell us that janitors don’t issue licenses is irrelevant, because according to Kim Davis, her clerks are “deputy clerks” whose job function entails issuing licenses. And this whole thing about “deputization” is also irrelevant, because the deputy clerks have been issuing licenses within the meaning of 402.100 and 402.100.
This is as far as I have to go. Because I have a court ruling here that states that states that these clerks are “deputies” as that term is understood in KY law and that they have the authority to issue licenses under KY law, regardless of what Kim Davis wants.
You want to claim that this ruling is incorrect. Fine. But you don’t get to do it by making some convoluted argument out of the OED. You need to make an actual legal argument citing KY statutory and case law. Because I’ve got a court ruling here saying that these clerks are “deputies” and that they have the authority under KY law to issue licenses.
Wrong. The “authorized by” is the hiring and swearing in". The “under direction of” is definitely not.
It’s hilarious that you guys think it is just a coincidence that the deputies are issuing the licenses only after she was jailed. Nothing to see here.
I think the order I’m looking for is the order directing the deputy clerks to issue the licences. That’s the one that’s most likely to contain any discussion of, or ruling about, their authority to do so. But it’s not one of the documents you have linked.
Pages 4, 5 and 6 of the earlier judgment discuss the routine involvement of deputy clerks in issuing marriage licences, and the fact that the forms prepared by the state assume and accommodate this routine involvement. But this may simply reflect that fact that deputy clerks routinely are deputed to issue marriage licences; it doesn’t address the question of their capacity to do so if the county clerk revokes, or purports to revoke, the deputation of this function to them.
I’m not sure I understand your question. The assistants can act for the clerk in issuing licences if they are her “lawful deputies”; what we need is a legal basis for saying that they are her deputies which does not rest on her deputation of her duties to them. I don’t think the assistants’ oath of office is such a basis; it doesn’t say anything about acting on behalf of the clerk; it just says that they’ll execute the duties of their office without specifying what those duties are.
FWIW, I think that the basis for the deputation is normally the fiat of the county clerk, and in the present circumstances is the order of the federal court. I’m not excluding the possiblity that there is some other basis, but nobody is pointing to it in any very convincing way.
If I’m right, and if there is no other basis, once Davis told the assistants not to issue licences, they couldn’t validly issue licences even if they wished to, until the court ordered them to.
Who in this thread thinks it is just a coincidence?
She’s in jail for refusing to follow a court order; her deputies decided they didn’t want to be in jail too, and the judge made it clear that would be the next step.
All of this explicitly describes what regularly happens. It doesn’t discuss at all the question of whether the deputy clerks have the power to issue licences when the county clerk tells them that they may not. That question wasn’t canvassed because it didn’t arise until Davis ignored the order made at the end of that judgment, which was that she was not to veto the issue of the licences.
If this question is discussed at all, it will be in the reasoning in support of the second order, addressed to the deputy clerks, telling them to issue the marriage licences. Nobody has linked to that yet.
I’m not saying that at all. I’m saying that the court’s order to the clerks, to issue the licences, supplies the authority to do so which they were (as far as I can see) lacking from the moment that Davis withdrew her authority to the deputy clerks to issue the licences. At least, that’s the way it looks to me, unless somebody can point to something else that authorises the deputy clerks to do so.
It doesn’t say that. It describes the situation that normally prevails, which is that deputy clerks are deputed to issue marriage licences, but it doesn’t discuss at all how they have been deputed to do that, or what the position is if the county clerk withdraws or purports to withdraw their deputation in that respect. None of that was relevant to the issues considered on 12 August, so the court neither discusses it nor rules on it.
[QUOTE=UDS]
Pages 4, 5 and 6 of the earlier judgment discuss the routine involvement of deputy clerks in issuing marriage licences, and the fact that the forms prepared by the state assume and accommodate this routine involvement.
[/QUOTE]
No, it says that deputy clerks are authorized by statute to issue licenses.
This is just you making stuff up. First of all, Davis’s order not to issue any licenses at all was lifted by the judge, so there is no “revokation” in play. Secondly, you have provided no legal backing for the proposition that a clerk can actually “revoke” a deputies power in this manner. As I said, I have a court ruling. You’re the one trying to claim something else, so you provide the legal argument.
More made up stuff. It’s telling that you can’t provide a cite to an actual law or ruling or regulation.
Thankfully for us, what you think is irrelevant.
Nope, you’re not right. So far in this thread we have a court ruling and multiple statutes saying that you’re wrong. We also have a statement from the county attorney saying that these licenses are valid. It’s not our problem if you don’t know how to read a court ruling or make a legal argument properly.
FFS, I don’t think I need a cite that the Deputy Sheriff is the deputy to the Sheriff or that the Deputy County Clerk is the deputy to the County Clerk. That’s what the words mean. It’s not impossible that there is some narrow technical definition by which this is not the case, but it’s your job to provide evidence for that, not my job to prove that words mean what they mean.
Maybe there’s a statute spelling this out. I’m not going to look because it doesn’t matter. There are only a few possibilities. Maybe there is a statute establishing the position of Deputy Clerk. That would establish that the law deputes the duties of Clerk to the Deputy Clerks. Maybe Kim Davis hired them personally. If she offered them a job of “Deputy Clerk” and they accepted, that strongly implies that she was deputing to them her duties under Section 61.035. Maybe they were already hired by her predecessor (her mother) and on her first day, someone said “Hey Kim, these are the Deputy Clerks.” She might have said, “Ok,” or even just “Hi,” but she didn’t (unless you have evidence) say “I’m going to have change that title,” or “You can call yourselves that, but don’t start doing my job!” By agreeing to work in an office with Deputy Clerks, she strongly implied that they were her deputies. And as far as I know, she hasn’t disputed that. If you want to dispute it, fine, but bring some evidence.
Otherwise, words mean what they mean. If the law grants special privileges to anyone hired as a Foo Bar, and you want to hire me as Special Bar to the Foo, but don’t intend me to have those privileges, you’d better spell it out somewhere. Most judges don’t look kindly on word games.
OMFG, this is beyond stupid. The language in the ruling clearly states that deputy clerks have statutory authorization to issue licenses. You don’t like the court’s interpretation, then bring a freaking legal argument.