# Anyone familiar with KY law: Wasn't there another way to handle the defiant county clerk? **URL:** \ **Category:** Factual Questions\ **Created:** [September 4, 2015, 5:19am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885 "2015-09-04T05:19:20Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [September 7, 2015, 4:04pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/61 "2015-09-07T16:04:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > She has the legal _authority_; they’re her employees. It’s not really the federal court’s job to figure out the fine demarcation of clerks’ powers under Kentucky law. I thought they were employees of the state? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 7, 2015, 4:06pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/62 "2015-09-07T16:06:05Z")
They are. Well, technically they’re employees of Rowan County, which is a subdivision of the state. I meant they are her subordinates, and they are not hired through whatever civil service merit system the state uses to insulate its direct employees from political considerations. ---
**Author:** ![enipla](https://avatars.discourse-cdn.com/v4/letter/e/54ee81/32.png) [@enipla](https://boards.straightdope.com/u/enipla)\ **Post date:** [September 7, 2015, 4:31pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/63 "2015-09-07T16:31:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They are. Well, technically they’re employees of Rowan County, which is a subdivision of the state. I meant they are her subordinates, and they are not hired through whatever civil service merit system the state uses to insulate its direct employees from political considerations. I wonder just how much her deputies have lawyered up. Haven’t heard a peep from them. I sure would considering conflicting orders from a federal judge and the county clerk. Not to mention the SCOTUS ruling. Or perhaps they are just a bunch of ignorant assholes. ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [September 7, 2015, 4:34pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/64 "2015-09-07T16:34:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, technically they’re employees of Rowan County, which is a subdivision of the state. I meant they are her subordinates, and they are not hired through whatever civil service merit system the state uses to insulate its direct employees from political considerations. And there’s the answer to the problem. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 7, 2015, 5:46pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/65 "2015-09-07T17:46:29Z")
> [@PatrickLondon](#): > > And there’s the answer to the problem. Not really. I am an actual civil service employee of a different state, and much of my authority is delegated to me by an appointed board. The board has the actual authority and has delegated it to me. As in the pertinent laws are written “the Board ( or its designees) may ( or shall or will)” perform some action action. That board decides to whom it will delegate its authority and under which circumstances , and should they decide to change how they delegate, they are free to do so. And if they do that, and I continue to act as if I have the authority which I no longer have, I can be disciplined, even though I am a civil servant. The governor can refuse to reappoint them when their fixed terms are up, but short of them being charged with official misconduct or other crimes, that’s all that can be done. Civil servants are protected from being fired just because someone new is elected or appointed to head an office or an agency - but they aren’t necessarily protected from having to follow policies based on political considerations ( as most are, on some level) ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [September 7, 2015, 8:21pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/66 "2015-09-07T20:21:58Z")
> [@enipla](#): > > Or perhaps they are just a bunch of ignorant assholes. Well, it is Kentucky. And they are friends & even relatives of hers, hired by her. You make the call. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [September 7, 2015, 8:27pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/67 "2015-09-07T20:27:42Z")
One question: Does the county clerk have any discretion when issuing a license or is it required that she issue it if the filer has met all of the legal requirements? For example, two people are obviously liquored up on the D\*mon’s Rum. Can she deny the license at least until they sober up? ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 7, 2015, 8:42pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/68 "2015-09-07T20:42:55Z")
> [@UDS](#): > > The deputy is deputed by the clerk, and can only do what the clerk deputes him or her to do. Presumably in this instance the clerk has told the assistants that they are _not_ deputed to issue same-sex marriage licences (or, right now, any marriage licences at all). Actually, according to Kentucky law, as quoted by **BrightNShiny** in [this thread](http://boards.straightdope.com/sdmb/showthread.php?p=18666863#post18666863), the deputy clerks have independent statutory authority to issue the licenses themselves. [http://www.lrc.ky.gov/statutes/statute.aspx?id=22875](http://www.lrc.ky.gov/statutes/statute.aspx?id=22875) > [@](#): > > **61.035 Deputy may act for ministerial officer.** > > Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, > and any act permitted to be done by him, may be performed by his lawful deputy. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [September 7, 2015, 8:46pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/69 "2015-09-07T20:46:52Z")
> [@t-bonham@scc.net](#): > > Well, it is Kentucky. **Moderator Note** This being GQ, let’s refrain from jabs directed at all residents of a state. We have a Pit thread for such comments. Colibri General Questions Moderator ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 7, 2015, 8:46pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/70 "2015-09-07T20:46:53Z")
> [@Saint\_Cad](#): > > One question: > Does the county clerk have any discretion when issuing a license or is it required that she issue it if the filer has met all of the legal requirements? For example, two people are obviously liquored up on the D\*mon’s Rum. Can she deny the license at least until they sober up? From the same thread, we learn that Kentucky law stipulates that in the case of a marriage license, “The license shall be issued by the clerk of the county.” [http://www.lrc.ky.gov/statutes/statute.aspx?id=36473](http://www.lrc.ky.gov/statutes/statute.aspx?id=36473) > [@](#): > > **402.080 Marriage license required – Who may issue.** > > No marriage shall be solemnized without a license therefor. The license shall be issued by > the clerk of the county in which the female resides at the time, unless the female is > eighteen (18) years of age or over or a widow, and the license is issued on her application > in person or by writing signed by her, in which case it may be issued by any county clerk. In other jurisdictions, the equivalent law reads “may,” which gives the relevant officer discretion (though not to violate the 14th Amendment). “Shall” means “must,” however. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 7, 2015, 11:50pm UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/71 "2015-09-07T23:50:38Z")
Personally, it seems to me that she’s resigned her office, and that therefore, whatever procedure is in place for a vacancy in office should be put into effect. She’s communicated a lack of desire to do the job called for by her office-- How is that not a resignation? ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [September 8, 2015, 12:53am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/72 "2015-09-08T00:53:00Z")
> [@Alan\_Smithee](#): > > Actually, according to Kentucky law, as quoted by **BrightNShiny** in [this thread](http://boards.straightdope.com/sdmb/showthread.php?p=18666863#post18666863), the deputy clerks have independent statutory authority to issue the licenses themselves. > > [http://www.lrc.ky.gov/statutes/statute.aspx?id=22875](http://www.lrc.ky.gov/statutes/statute.aspx?id=22875) But what makes the assistant clerk a “lawful deputy”? Surely it’s the act of the clerk, in deputing some or all of her duties to him? If she doesn’t depute her duties to him, in what sense is he the “lawful deputy” of the clerk? ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 8, 2015, 12:58am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/73 "2015-09-08T00:58:52Z")
> [@UDS](#): > > But what makes the assistant clerk a “lawful deputy”? Surely it’s the act of the clerk, in deputing some or all of her duties to him? If she doesn’t depute her duties to him, in what sense is he the “lawful deputy” of the clerk? In the sense that he was hired or appointed to the position of Deputy Clerk. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [September 8, 2015, 1:36am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/74 "2015-09-08T01:36:25Z")
> [@Alan\_Smithee](#): > > In the sense that he was hired or appointed to the position of Deputy Clerk. Hmm. I’m not convinced that assigning a job title with the word “deputy” to someone’s position turns them into the “lawful deputy” of someone else. Ordinary conventions of the English language suggest that for A to be the deputy of B, some of B’s powers or functions have to be deputed to A. I think the effect of s.61.035 is to allow deputation of the functions of a “ministerial officer”. He doesn’t have to discharge all his functions in person; he can depute others to do them. But he doesn’t have any deputies except to the extent that he _does_ depute stuff to others. And of course he remains in control of, and responsible for, the acts of his deputies, a corollary of which is that he can limit or withdraw his deputation at any time. Just to be clear, I’m not defending Davis. I think she should (preferably) do her damn job, and if she isn’t willing to do it she should resign so that it can be given to someone who will do it. But, given her stance, and on the assumption that she told her staff that she was not authorising them to issue marriage licences, I don’t think her _could_ validly issued licences, but for the court order directing them to. ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 8, 2015, 1:53am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/75 "2015-09-08T01:53:06Z")
> [@UDS](#): > > Hmm. I’m not convinced that assigning a job title with the word “deputy” to someone’s position turns them into the “lawful deputy” of someone else. Ordinary conventions of the English language suggest that for A to be the deputy of B, some of B’s powers or functions have to be deputed to A. yes, and the law quoted deputes all of B’s powers and functions. > [@](#): > > I think the effect of s.61.035 is to allow deputation of the functions of a “ministerial officer”. He doesn’t have to discharge all his functions in person; he can depute others to do them. But he doesn’t have any deputies except to the extent that he _does_ depute stuff to others. And of course he remains in control of, and responsible for, the acts of his deputies, a corollary of which is that he can limit or withdraw his deputation at any time. I The law seems clear that he can’t depute only some functions of his office. It is quite explicit that a deputy can perform “any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him.” The only question is whether a Deputy County Clerk is a “lawful deputy” of a County Clerk. It is possible that “lawful deputy” is defined otherwise elsewhere in Ky statute, but I think it would be absurd to argue based on plain language that a Deputy County Clerk _isn’t_ a deputy to the County Clerk. What else would the title mean? ---
**Author:** ![Oly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/oly/32/8255_2.png) [@Oly](https://boards.straightdope.com/u/Oly)\ **Post date:** [September 8, 2015, 4:29am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/76 "2015-09-08T04:29:54Z")
> [@Smapti](#): > > As I understand it, in Kentucky the [judge-executive](https://en.wikipedia.org/wiki/County_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. Where has this judge-executive been in all this? Why didn’t he/she step in and make a proverbial executive decision, relieve the clerk of her duties (or at least the marriage license part), and initiate some other process? It just seems like at some point near the start of this there was/could have been an opportunity for a bit of deftness in the interpretation and application of the relevant statutes and policies so as to move the clerk aside from that duty and get the job done another way. At the very least that may have resulted in all the squabbling being centered around jurisdictional issues rather than the clerk’s religious objections to doing the job she pledged to do. ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [September 8, 2015, 4:39am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/77 "2015-09-08T04:39:14Z")
> [@Oly](#): > > Where has this judge-executive been in all this? Why didn’t he/she step in and make a proverbial executive decision, relieve the clerk of her duties (or at least the marriage license part), and initiate some other process? The judge-executive and the county clerk are independent offices. The clerk was elected by the populace of the county, and the judge-executive does not have the power to relieve her of her duties (that could only be done via impeachment by the state legislature). At the national level in the U.S., the president of course controls the executive branch, and can hire/fire the secretary of state at will. In the individual states, however, it is quite common for the Sec’y of State to be an independent elected official outside of the governor’s authority, and it is this latter model that Kentucky county governments follow. ---
**Author:** ![Nefario](https://avatars.discourse-cdn.com/v4/letter/n/59ef9b/32.png) [@Nefario](https://boards.straightdope.com/u/Nefario)\ **Post date:** [September 8, 2015, 11:12am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/78 "2015-09-08T11:12:37Z")
Good article from a UCLA School of Law professor: > **[Opinion | When does your religion legally excuse you from doing part of your...](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/)** > > A conservative Christian County Clerk doesn’t want her name to appear on marriage licenses. A Muslim truck driver doesn’t want to drive alcohol shipments. A Jehovah’s Witness employee doesn’t want to raise a flag. The law is sometimes on their side. ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [September 9, 2015, 7:47am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/79 "2015-09-09T07:47:33Z")
> [@doreen](#): > > And if they do that, and I continue to act as if I have the authority which I no longer have, I can be disciplined, even though I am a civil servant. The governor can refuse to reappoint them when their fixed terms are up, but short of them being charged with official misconduct or other crimes, that’s all that can be done. > > Civil servants are protected from being fired just because someone new is elected or appointed to head an office or an agency - but they aren’t necessarily protected from having to follow policies based on political considerations ( as most are, on some level) But surely disobeying the law _on their own initiative_ would be official misconduct, rendering them liable to relatively speedy disciplinary procedures. The question is, to what level do you devolve political responsibility for administrative functions? I’d say relatively high. For me, the whole point of civil servants is to follow policies based on political considerations, provided those are properly defined and set by a properly elected authority, which then has the legal and political liability for them. You could say that’s an argument for electing every single civil servant; but if you set the liability at a high enough level, you raise the stakes and the risk level to their careers if they go off the rails or get it wrong - especially if the civil servants were then to disobey an instruction to ignore a legal ruling. Surely any mayor or state governor who tried that would find themselves in no end of a legal and political tangle (presumably at the taxpayers’ expense as well)? ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 9, 2015, 11:09am UTC](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885/80 "2015-09-09T11:09:00Z")
[quote=“PatrickLondon, post:79, topic:729885”] But surely disobeying the law _on their own initiative_ would be official misconduct, rendering them liable to relatively speedy disciplinary procedures. > [@](#): > > Assuming by “they” you mean the deputies ,my point is that it’s not so easy to say that the deputies would have acted differently before Davis was jailed if only they had been civil servants. Being a civil servant offers some protection- but that sometimes that only means you get your job back after spending a couple of years in court fighting being fired. [Previous page](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885.md?page=3) [Next page](https://boards.straightdope.com/t/anyone-familiar-with-ky-law-wasnt-there-another-way-to-handle-the-defiant-county-clerk/729885.md?page=5)