Alan, I have already said, more than once, that the issue of marriage licences (and no doubt many other functions of the county clerk) is routinely deputed to the deputy clerks - who, I understand, are appointed by the county clerk. I have asked whether on the assumption that the county clerk expressly revokes or purports to revoke the deputies’ authority to issue licences, there is any basis for saying that they can still do so?
If your answer boils down to “the basis is their job title”, then I think it’s a bit rich for you to accuse me of playing word games. If Ms Davis were to reorganise the office and retitle these positions as “assistant clerk”, would their deputation to issue licences magically vanish? I suggest that the extent of their deputation doesn’t depend on their job title; it depends on which functions of the clerk have, in fact, been deputed to them. Or, in other words, its a matter of substance, not form. I don’t see that as a word game.
I don’t have a statutory authority or a court judgment to back up my view. I’m willing to defer to either. But it seems that you also don’t have a statute or a judgment to back you up. BrightNShiny insists that the 12 August judgment supplies the authority but he wisely refrains from quoting any passage of the judgment which says so because, in fact, there is no such passage. The judgment reflects the fact that the function routinely is deputed to deputy clerks, but at no point says that it must be, or that this deputation is effected by statute, or anything of the kind.
According to the court ruling, the 6 deputy clerks in Davis’s office are "deputy clerks’ within the meaning of KY law (and according to Davis herself). You don’t like it? Provide a legal argument.
Uh, no. I quoted you the passage. You just don’t know how to read a court ruling. Let me quote it for you again:
According to this ruling, either the deputy clerks or the county clerk have statutory authorization under 402.100 and 402.110 to issue license. You don’t like it? Make a legal argument.
The court clearly says that the 6 deputies in question are deputies for the purposes of 402.100 and 402.110. You don’t like it? Make a legal argument.
In a small office, I see nothing to support whatever point you think you are making. Davis threatens her staff with insubordination and firing if they obey the law. As long as she is in thee office, she is a direct threat to their livelihood. It goes to court, she gets removed, the court threatens jail time, they figure they cannot afford to lose the pay and follow the court order.
(They may even agree with her silly argument, but the dynamics of employment still apply.)
I am glad that you find this humorous, but you have still failed to support your belief.
This assumption is without basis and contrary to both the evidence and common sense.
If she changed the title it would be evidence that she no longer considers them her deputies. It wouldn’t be much evidence, but it would be more than you have. We agree that they typically are deputized to issue marriage license. We agree that there is a position designated deputy clerk, and that statute grants deputies the powers of the clerk. You make an additional assumption that there is some formal or informal procedure by which the County Clerk creates deputies independent of her hiring and appointing people to be her deputies, despite there being no mention of this in any statute, public policy or caselaw. You then make the further assumption that this procedure, contrary to Section 61.035, grants or somehow imputes to the County Clerk the power to revoke this deputation in order to defy a Supreme Court ruling, even though the law seems explicitly worded to rule this out. That’s way too many assumptions without any evidence whatsoever.
On a plain reading, the statute is clear that clerk and deputies all have the authority to issue marriage licenses. It is not a matter of deputies being limited to only preparing licenses for issuing by the clerk, but rather of the deputies themselves being authorized by statute to issue licenses themselves. The clerk most likely has the administrative authority to hire them, fire them, and assign them their various tasks, but there is nothing in the statue that even hints at the clerk being able to revoke their statutorily granted authority to issue marriage licenses so long as they hold office.
The deputies can act and sign in their own names, and by doing so bind the clerk. That’s what being a deputy is about. The problem is that the clerk is on strike, despite having been given her marching orders from the Governor. That places the deputies in a conflict, for they have the statutory authority to issue marriage licenses, the statutory duty to issue marriage licenses or else face criminal prosecution, the legal duty to uphold their constitutional oath of office, and their employer-employee duty to execute the directions of their Governor, but at the same time they have been given an illegal order by their principal the clerk to cease issuing marriage certificates.
Does the clerk have the authority to illegally revoke the deputies’ authority and thereby halt the processing of marriages in the county? No, as discussed up-thread, she does not. It is one thing to legally sever the principal-deputy bond, but quite another to attempt to illegally sever it, and thereby prevent the deputies from using the authority the statute has set out for them, cause them to breach their constitutional oaths of office the way the clerk broke hers, and to become criminally liable for a first degree misdemeanor in one of the ways the clerk has done. If the principal-deputy bond is to be broken, it must be done legally.
As set out up-thread, an illegal order is of no force and effect. The clerk wants to dissolve the principal-deputy bond, but she has not chosen a legal way of doing so, such as resigning as the Governor recommended, or firing the deputies. Until she uses a legal way to dissolve the principal-deputy bond, she remains bound to deputies who are lawfully fulfilling their statutory duties. It stands worth repeating: an illegal order is of no force and effect.
The clerk’s mother was the clerk for decades, and the clerk’s son is one of the deputies. One way to prevent the clerk from being repeatedly elected only to refuse to issue marriage licences is to nail the clerk and her deputy son for conspiracy against rights, sentence the both of them to at least five years each, and ban them from seeking office in Kentucky again. Problem solved. Lots of fresh problems caused, but at least that one problem solved.
18 U.S. Code § 241 - Conspiracy against rights:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same … they shall be fined under this title or imprisoned not more than ten years, or both.
18 U.S. Code § 3559 - Sentencing classification of offenses
(a)Classification.—An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
. . . .
(4) less than ten years but five or more years, as a Class D felony;
(5) less than five years but more than one year, as a Class E felony;
Kentucky Constitution s. 150
All persons shall be excluded from office who have been, or shall hereafter be, convicted of a felony, or of such high misdemeanor as may be prescribed by law, but such disability may be removed by pardon of the Governor.
This, I think, is a key point. A lot of laws you follow them by not doing something. This law is the opposite: you follow it through positive action. Inaction, in this case, is illegal.
They’ve been directed by their boss to take an illegal inaction. There are no circumstances I’m aware of in which a civilian is expected to obey an illegal order from a boss (I think military folks aren’t expected to do so either, but I’m a bit fuzzier on exactly how that works).
Terr et al are hanging their argument on a very thin thread: we’ve clearly got a situation where a boss is violating the law, where the deputies would be violating the law if they failed to issue the marriage certificates, where the deputies were originally given authority to issue marriage certificates, and where the boss has told them to stop issuing them in violation of the law. Clearly her directive to them can have no legal force. People have come to these deputies asking for legal marriage certificates, and the deputies have legally issued the certificates. Everyone involved wants these people to be legally married; everyone involved is acting in a legal manner.
But because an illegal order was issued, Terr insists, we shouldn’t respect those marriages.
And he has the audacity to call my argument absurd.
Can she fire the deputies? Wouldn’t doing that for the reasons given also put her in contempt? Wouldn’t finding other people who would listen to her just put them in contempt, too?
Heck, is there anything in Kentucky law about firing someone for not following an illegal order?
I think this is the disconnect - that people are using different senses of “authority”. Regardless of whatever authority the statute gives the deputies to issue the licences on their own (and the validity of them), as long as she can and will fire them for doing so, they don’t have the authority in a practical sense. And I haven’t seen anyone suggest that she couldn’t have fired them (although I may have missed it).
“Under direction of” is very standard in government job postings, all that means is “this person is your boss.” It doesn’t mean what you’re asserting, that “if you do things that your boss doesn’t like they are legally invalid.” It’s never meant that, pretty much anywhere in ministerial government in the United States. It means Kim can fire them within the constraints of Kentucky law for civil servants (or not, if they’re considered “will and pleasure employees”) it means that she can set their work schedules, approve or disapprove their leave, set their specific work duties (my aforementioned delegation of functions like going to Staples to buy notepads.) But if Kentucky statute defines part of the deputy clerk’s job as being able to sign marriage licenses, then Davis cannot rescind that.
Based on the widespread practice throughout Kentucky of deputy clerks handling the marriage licenses and the elected clerk often not handling them at all in the larger counties, the onus is really on people like you and UDS to demonstrate factually, that under Kentucky law the Clerk has the power to rescind this power that by all appearances is granted by statute. You’ve offered no evidence to this effect.
When I was in State government, most people that were Deputies of an elected official were “will and pleasure” employees, meaning they could be fired like a normal non-government “at will” employee. But at the state level, deputies of elected officials are very high ranking persons, usually overseeing very large departments. This is because statewide elected office is a much bigger thing than a county office.
In the context of a typical State government, people who sit at small desks giving out forms to people or signing forms for people would ordinarily be part of the civil service and protected from arbitrary firing. In fact, it’s fair to say it’s actually hard to fire them even when they are derelict in their duty and should be fired.
But when you shrink it down to a county government I become less clear on it. I’ve not seen any clear cut citations as to whether or not in Kentucky Deputy Clerks are “will and pleasure” employees, or whether they are part of the Kentucky civil service. In many States even county and city employees are actually technically in the state civil service system, albeit they may have different pension funds and different insurance schemes (although sometimes those are shared with the State as well.)
County clerks routinely issue licenses (through their deputies), however they are signed and stamped (usually rubber stamped) by the County Clerk. The licenses issued here would not have that, and they could very easily found to be “not legal”
The general rule is that if you reasonably think and believe you got married, you’re married, regardless of technical errors. When the Rowan County Attorney says the licenses are valid, then that would seem to be a reasonable basis for a non-lawyer’s belief in the validity.
I’m not a lawyer, but no, I don’t think what he did was illegal. The law didn’t say, “Don’t give marriage licenses to gay people,” it said, “Marriage licenses for gay people aren’t valid.” Up until a judge ordered him to stop, Newsom’s actions were completely legal. It’s just that, under the law, no other entity was required to treat the licenses he gave to gay people as valid.
