A fine, be it a fixed amount or an amount growing over time, would not be as effective at getting her to stop blocking the issuing of marriages licenses when compared to tossing her in the can until she were to comply. There’s nothing quite like being locked up to coerce a person to comply. At what point would a person finally say enough and pay, particularly when that person might have financial support from others who share her cause?
Fines are more common with corporate persons rather than natural persons, for a corporation isn’t a physical being the way a natural person is.
Fine are also more common in criminal contempt, where they are used to punish a person.
Well, maybe. Keep in mind, I was specifically asking about fines that take into account any financial support she gets. We know for a fact that incarceration, at least for—what, six days?— had no effect on her contumacy whatsoever, except inasmuch as it kept her physically out of the office. She continued to instruct her deputy clerks not to issue the licenses and to insist that the licenses they issued were invalid.
I think she foresees a big payday from Fox or some evangelical organization if she proves herself a martyr, and jailing her plays into that. Wiping out any financial gain she can get from this would decrease her incentive to defy the court much more than a few days in jail when she’s got supporters rallying outside her cell. And fines don’t make nearly as good a headline for a wannabe martyr.
But I guess we’ll see how it plays out when she returns to work on Monday, and what it eventually takes to resolve this.
A fine in proportion to her assets and income would be appropriate, but that would probably be paid by her supporters, leaving her free to continue until the next contempt order. A fine out of proportion to her assets and income would open the door for her to plead the impossibility defense, for the court must not assume that people will come to her financial rescue.
If on Monday she blocks the issuing of marriage licenses, I expect that she will be tossed back in jail, and the deputies will continue to issue the licenses. The important thing is that the licenses will be issued despite occasional interruption by Davis.
Thanks. I guess you think (and I realize this is pretty speculative unless there’s actual case law addressing it) that this would apply even if the fine started off small but increased with time? And a fine of, say “$1000/day plus an amount equal to any funds collected or received on her behalf from other parties” would be too hard to enforce? Would it even be possible? (I’m not trying to cross-examine you here! I really appreciate your contributions so far!)
Possible, sure, but too complicated when compared with simply locking her up and giving her the key to her cell that she can use as soon as she agrees to comply. For example, how would the court know how much she might or might not have received from supporters, and would the characterization of the funds (i.e. gifts or just loans) make a difference? Courts try to be as practical and direct as possible, and to try to minimize the opportunities for shenanigans.
Judge Bunning specially named the fact that she’s being bankrolled by others (Liberty Counsel and their donors) as his rationale for jailing her rather than fining her. The imposition of a fine wouldn’t have had any compelling effect because it wouldn’t actually have had an impact upon her life in any way.
I don’t understand why people keep saying this. A fine of $1000 for the first day, $2000 for the second day, $4000 for the third day, et cetera, would quickly exceed the ability of the Liberty Counsel to pay. At the end of a month, if she held out that long, she’d owe two billion dollars! You think that wouldn’t impact her or that her Liberty Council advisors wouldn’t find her an exit strategy before then?
** Muffin** gave a good explanation of why that might not be the court’s preferred move, but you can’t simply say fines wouldn’t work.
Okay, so the court levies a fine that’s exponentially growing on a daily basis. If donations and outside parties stop bankrolling her before she appeals – and she would, and would potentially win on the grounds that a fine for contempt should not be so high as to be financially ruinous – she files bankruptcy and the court gets little to nothing. (And she may end up ahead depending on who else she might owe money to.)
Meanwhile, her mind isn’t changed, and so long as she’s in the office every day, her deputies who’ve been put in fear of losing their jobs are forced to continue to defy the law at her insistence.
Getting her out of her office for just a few days enabled all of the deputies who aren’t her offspring to agree to comply with the law, and got marriage licenses issued, and created compliance within Rowan County. She’s back and still refusing to issue or sign, but licenses are going out. Her deputies are no longer in fear of losing their livelihoods (or facing a potentially long and financially difficult legal battle if she fired them). Her martyrdom for the cause was effectively short-circuited. She lost, and got to enjoy some pain in the bargain for her sins.
I don’t think you can wipe out a legal penalty by declaring bankruptcy.
She certainly could appeal, and would be likely to win, but even a win wouldn’t mean she paid nothing. The appeals court would likely establish a maximum reasonable fine or order the original court to do so. By that point, the amount of money she could expect to raise would be known and would be taken into account by the court.
And she might not win. The court might find that she got herself into the mess and could have gotten herself out at any time, so the astronomical fines stand, and she simply has to have 80% of her paycheck garnished for the rest of her life. The mere possibility, however unlikely, should make the Liberty Council and her attorney rethink their strategy for her, even if she doesn’t.
Yes it could take longer (though people have sat in jail willingly for years rather than compromise), but it’s not impossible, and it would have a potentially enormous effect on her life, which you claimed it would not. And it would have made her a slightly less attractive target for Huckabee, et al., to boot.
Can a court impose so-called creative sentencing options for civil contempt? For example, can a court order a person in contempt to attend court-ordered therapy, complete a “boot camp”, or hold a sign in public?