For example, there must be some provision for granting marriage licenses in the situation that the elected clerk cannot perform his or her duties, such as when they go on vacation, or if they are ill, or otherwise incapacitated. It would seem that Kim Davis was, by virtue of her objections, thus rendered incapacitated to perform her duty. So why not just activate that contingency provision?
Reading between the lines, she can authorise her staff (or some of them) to licences, and presumably she routinely does so (or has a standing authorisation in place) to cover her holidays, sickness, etc. But she would not only not issue licenses in these circumstances, but not authorise others to do so.
The court has effectively stepped in, directing the staff to issue licences as if she had authorised them to do so.
The other way to handle the matter is to remove her from office, clearing the way for someone who is actually willing to do the job to take it on. But I gather this requires impeachment by the state legislature, which isn’t sitting right now.
What I don’t get, is why in the US system is an elected official in charge of issuing marriage licenses? In Australia / UK Parliamentary systems, this sort of thing is done by civil servants, who don’t have any say in policy but just carry out tasks as directed by their respective ministers according to current laws.
It makes no sense to me at all that an elected official should have a key role in a purely bureaucratic task like issuing marriage licenses. Whats the logic behind such a system?
This was covered in this thread.
The US has a long tradition of electing local officials, down to quite a junior level by comparison with other countries. As far as I can tell the position of “county clerk” in Kentucky is basically the position of chief executive officer of the county government. In Kentucky the elect not only the County Clerk but the County Judge (which is an administrative position, not a judicial one), the County Sheriff, the County Attorney, the Jailer, the Coroner, the Justices of the Peace, the Constable, the County Surveyor and the Property Valuation Administrator. It must make for a long ballot paper (though I suspect in practice many of the elections are uncontested).
Ok thanks, read that thread but it still doesn’t make much sense to me. Sure, I understand the country clerk is sort of like a mayor, but why is it her job to issue marriage licenses, rather than it being the job of a politically neutral civil service department?
Because the county has a general record-keeping function. Counties not only issue marriage licences, but are the front-line recorders of births, deaths and marriages. They keep tax court records, they register motor vehicles, they issue driver’s licences, they register boats, they collect the licence fees paid by bars and restaurants, they record transactions in land, they register voters . . . You get the picture.
I think this reflects two things. First, a principled preference for decentralisation of government functions. In a lot of countries these things would be done by various agencies of the central government; in Kentucky (and many other US states) they are done by the local government. Closer to the people, and all that. Secondly, convenience. You don’t have to head off to Frankfort to conduct your business with the state, and various state agencies don’t have to establish public offices at convenient places throughout the state. Instead, the county government acts as a one-stop shop through which you transact your bureaucratic business with the state and its agencies.
OK, the County Clerk is the “respective minister” to which you refer. The County Clerk doesn’t normally sit in the marriage-license lobby of her office and issue marriage licenses, she has a staff of civil servants that do that. A facsimile of her signature is pre-printed on the licenses. She does not normally interact with the public in the day-to-day operation of her office, she is in charge of the staff that does.
She has apparently directed her staff not to issue licenses to same-sex couples and has directed her staff to summon her personally when a same-sex couple shows up with TV cameras so that she may speak her opinion for the benefit of the audience.
So the “standing order”, in county code or elsewhere, must say something to the effect of when the county clerk is unable to perform her duties, such and such happens. Why didn’t/couldn’t the judge just say, well, the county clerk is now unable to perform her duties, so that standing order is now in effect. In this way they could have avoided the whole jail thing.
As an analogy, what would have happened if the county clerk had, literally, dropped dead? Why not activate whatever contingency plan would have been activated then?
As I understand it, in Kentucky the judge-executive is the chief executive of the county government. The county clerk position would probably be more analogous to the Secretary of State in a larger polity.
Because that fails to resolve the fact that the clerk is in contempt of court.
In the American legal system, courts generally only act on parties’ motions (compare that to European civil law systems, where judges often act on their own initiative, almost akin to prosecutors). In the county clerk case, the Plaintiffs filed a contempt motion, asking the court to fine or jail Kim Davis for contempt. And that is exactly what the court did here.
Note that plaintiffs never asked the court to declare Davis as being unable to perform her duties. Even if they did, it would be an extraordinary order by the court to grant such a motion. Frankly, courts tend to stay away from such actions because they hit a little too close to the political question doctrine.
The reason that the contingency plans have not taken effect is that the clerk is still able to do her job (just unwilling) and has not been impeached by the state senate.
Sitting in jail, she is unable to perform her duties and then I guess alternative procedures would come into play.
You cannot believe how long a ballot can be in the US. I first voted in PA and we elected, in addition to the governor, the lt. governor, a representative to the state house and state senate, several members of the governor’s cabinet, and judges. Then we had local elections for county commissioners, mayors and councilmen. And there was more, although I don’t recall what. We used to joke about electing dog-catchers, although we didn’t.
In IL, I once had to vote on a ticket to elect the entire state house of 177 members. This was because the state had failed to pass a redistricting bill. However, each party was allowed to put up only 118 candidates, so the almost inevitable result was 118 of one party and 59 of the other. You could tick a box at the top and choose the entire party line too, which is what almost everyone did. And this was only for state offices. For federal offices you vote only for president and VP (one choice), senator and representative.
Now in Canada, we elect one MP, one mayor and one town councilor. Also one school board member. That’s all. And except for mayor and councilor, each election is for one office only.
If the clerk had dropped dead, the judge-executive is authorized under KY law to carry out the clerk’s functions until a new one is elected. But the clerk didn’t drop dead. There is still a living person holding the office; there just isn’t a remedy other than impeachment for that.
I’d like to believe this, and I’ve even said the same before, but re-thinking it, I want some confirmation about the conditions she is held under. Since much of the state goverment appears to support her, it wouldn’t greatly surprise me if they gave her a nice desk and chair and phone, and let business run as usual, except for the issuance of SSM licenses. I really hope this is just my fevered over-imagination.
Is she still getting paid, while in jail for refusing to carry out the duties of her job?
The jailer has been quoted as saying it’s just another day in jail as far as he’s concerned, and she’s just another inmate.
But, that means that she can have visitors and make the occasional phone call, just like any other prisoner. So she certainly could be telling her son that her order not to issue still stands, and telling him to pass that order to the other clerks. Just being in jail does not deprive her of the authority of her office.
Yes.
To the OT, I guess the KY powers that be decided that a fatal “accident” was out of the question.