UNITED STATES DISTRICT COURT FOR THE …files.eqcf.org/.../113-Davis-Motion-for-Stay-expanded-injunction-.pdfemergency motion for immediate consideration and motion to stay september

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

ASHLAND DIVISION

APRIL MILLER, ET AL.,

Plaintiffs,

v.

KIM DAVIS, ET AL.,

Defendants.

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CIVIL ACTION

0:15-CV-00044-DLB

DISTRICT JUDGE

DAVID L. BUNNING

KIM DAVIS,

Third-Party Plaintiff,

v.

STEVEN L. BESHEAR, in his official

capacity as Governor of Kentucky, and

WAYNE ONKST, in his official capacity

as State Librarian and Commissioner,

Kentucky Department for Libraries and

Archives,

Third-Party Defendants.

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EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND

MOTION TO STAY SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL

Pursuant to Local Rule 7.1 and Federal Rule of Appellate Procedure 8(a)(1),

Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned counsel,

hereby moves on an expedited basis for this Court to enter a stay of the September 3, 2015

injunction order (D.E. 74) pending appeal of that order to the Sixth Circuit. Because this matter

has been fully briefed in the Sixth Circuit, Davis asks this Court for an expedited decision on

Case: 0:15-cv-00044-DLB Doc #: 113 Filed: 09/18/15 Page: 1 of 4 - Page ID#: 2200

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her stay motion. In support thereof, Davis incorporates by reference the memorandum of law that

is attached to this Motion, and her prior briefing on this same motion to the Sixth Circuit.

Davis originally filed this motion in the Sixth Circuit on September 11, 2015 based in large

part upon this Court’s consideration of the request for an expanded injunction without notice and

its remarks at the September 3, 2015 hearing, including: “We’ll just include that [the order

expanding the original injunction] as part of the appeal. . . . And the Sixth Circuit can certainly

decide if that’s appropriate.” D.E.78, Contempt Hr’g, PgID 1580-81 (emphasis added). Based

upon the district court’s actions and foregoing statements, Davis understood a motion for a stay of

the expanded injunction to be “impracticable” under Federal Rule of Appellate Procedure 8(a)(1),

and sought relief from the Sixth Circuit.1 An expedited briefing schedule was set on this motion in

the Sixth Circuit. On September 15, 2015, Plaintiffs and the Third-Party Defendants filed response

briefs to Davis’ emergency motion for a stay of the expanded injunction.2 On September 16, 2015,

Davis filed her reply brief.3 On September 17, 2015, the Sixth Circuit denied Davis’ motion for a

stay because Davis “has not sought a stay pending appeal in the district court as required by Federal

Rule of Appellate Procedure 8(a)(1),” and concluded that it would not be impracticable for Davis

to move this Court for a stay pending appeal.4

Accordingly, Davis now moves this Court for immediate and expedited consideration of

her Motion to Stay this Court’s September 3, 2015 injunction order. As noted above, the matter is

already substantively briefed by the parties. See Exs. A-D. Therefore, Davis asks for an expedited

decision from this Court on her Motion.

1 A copy of Davis’ Motion to Stay filed in the Sixth Circuit (without exhibits) is attached as Exhibit “A.” 2 A copy of the Plaintiffs’ and Third-Party Defendants’ response briefs are attached as Exhibits “B” and “C,”

respectively. 3 A copy of Davis’ reply brief in support of the Motion to Stay is attached as Exhibit “D.” 4 A copy of the Sixth Circuit’s order dated September 17, 2015 is attached as Exhibit “E.”


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WHEREFORE, Defendant/Third-Party Plaintiff Kim Davis respectfully requests that this

Court enter an order staying its September 3, 2015 injunction order pending appeal, in the form of

the proposed order attached hereto.

DATED: September 18, 2015 Respectfully submitted:

A.C. Donahue

Donahue Law Group, P.S.C.

P.O. Box 659

Somerset, Kentucky 42502

Tel: (606) 677-2741

Fax: (606) 678-2977

[email protected]

/s/ Jonathan D. Christman

Horatio G. Mihet

Roger K. Gannam

Jonathan D. Christman

Liberty Counsel

P.O. Box 540774

Orlando, Florida 32854

Tel: (800) 671-1776

Fax: (407) 875-0770

[email protected]

[email protected]

[email protected]

Attorneys for Defendant/Third-Party Plaintiff

Kim Davis


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF

filing system and therefore service will be effectuated by the Court’s electronic notification system

upon all counsel or parties of record:

Daniel J. Canon Jeffrey C. Mando

L. Joe Dunman Claire Parsons

Laura E. Landenwich ADAMS, STEPNER, WOLTERMANN &

CLAY DANIEL WALTON ADAMS, PLC DUSING, PLLC

462 S. Fourth Street, Suite 101 40 West Pike Street

Louisville, KY 40202 Covington, KY 41011

[email protected] [email protected]


[email protected]

Attorneys for Defendant Rowan County

William Ellis Sharp

ACLU OF KENTUCKY William M. Lear, Jr.

315 Guthrie Street, Suite 300 Palmer G. Vance II

Louisville, KY 40202 STOLL KEENON OGDEN PLLC

[email protected] 300 West Vine Street, Suite 2100

Lexington, KY 40507-1380

Attorneys for Plaintiffs [email protected]

[email protected]

Attorneys for Third-Party Defendants Steven

L. Beshear, Governor of Kentucky, and

Wayne Onkst, State Librarian and

Commissioner for Kentucky Department for

Libraries and Archives

DATED: September 18, 2015 /s/ Jonathan D. Christman


Attorney for Defendant/Third-Party Plaintiff

Kim Davis




ASHLAND DIVISION


Plaintiffs,

v.

KIM DAVIS, ET AL.,

Defendants.

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CIVIL ACTION

0:15-CV-00044-DLB

DISTRICT JUDGE

DAVID L. BUNNING

KIM DAVIS,


v.






Archives,


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DEFENDANT/THIRD-PARTY PLAINTIFF KIM DAVIS’ MEMORANDUM OF LAW

IN SUPPORT OF MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO

STAY SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL

Horatio G. Mihet A.C. Donahue

Roger K. Gannam DONAHUE LAW GROUP, P.S.C.

Jonathan D. Christman P.O. Box 659

LIBERTY COUNSEL Somerset, Kentucky 42502

P.O. Box 540774 Tel: (606) 677-2741

Orlando, Florida 32854 Fax: (606) 678-2977

Tel: (800) 671-1776 [email protected]

Fax: (407) 875-0770

[email protected] / [email protected] /

[email protected]

Attorneys for Defendant/Third-Party Plaintiff Kim Davis

Case: 0:15-cv-00044-DLB Doc #: 113-1 Filed: 09/18/15 Page: 1 of 16 - Page ID#: 2204

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Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned

counsel, respectfully submits this Memorandum of Law in Support of her Emergency Motion for

Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order Pending Appeal.

I. INTRODUCTION

On August 12, 2015, this Court entered a preliminary injunction ordering Davis to issue

marriage licenses to the named Plaintiffs (hereinafter, the “Injunction”). Davis immediately filed

a notice of appeal of the Injunction, bringing it within the jurisdiction of the Sixth Circuit, and

depriving this Court of jurisdiction to alter or expand the Injunction’s scope. But this Court did

just that, without fair notice or hearing, by entering a new injunction order on September 3, 2015

that materially expanded the original Injunction while it was already on appeal to the Sixth Circuit

(hereinafter, the “Expanded Injunction”). When this Court granted the Expanded Injunction, this

Court expressly acknowledged that the Expanded Injunction was relief that Plaintiffs “did not

request” in the “original motion” for a preliminary injunction, and which this Court did not grant

in its original Injunction.1 In fact, just seven days ago, this Court confirmed that its September 3,

2015 order undeniably “expanded its ruling” already on appeal to the Sixth Circuit.2 The

Expanded Injunction abrogates well-established principles of jurisdiction and due process in the

federal court system while an appeal is pending.

Davis timely appealed the Expanded Injunction to the Sixth Circuit, and sought an

emergency stay of the Expanded Injunction. Quite apart from Davis’ religious liberty interests

involved in her appeal of the original Injunction on the merits, her appeal of the Expanded

1 See D.E. 78, Contempt Hr’g, PgID 1578:20-25. 2 See D.E. 103, Sept. 11, 2015 Order, PgID 2177 (emphasis added).


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Injunction, and her request for stay of the Expanded Injunction, involve only the issue of this

Court’s acting without jurisdiction.

Davis originally filed her motion to stay the Expanded Injunction in the Sixth Circuit based

in large part upon this Court’s consideration of the request for an expanded injunction without

notice and its remarks at the September 3, 2015 hearing, including: “We’ll just include that [the

order expanding the original injunction] as part of the appeal. . . . And the Sixth Circuit can

certainly decide if that’s appropriate.”3 Based upon this Court’s actions and foregoing

statements, Davis understood a motion for a stay of the expanded injunction to be “impracticable”

under Federal Rule of Appellate Procedure 8(a)(1), and sought relief directly from the Sixth

Circuit. On September 17, 2015, after full briefing on the motion and despite this Court’s foregoing

directive, the Sixth Circuit denied on technical grounds Davis’ motion for a stay because Davis

did not first seek a stay pending appeal in this Court. Davis now timely moves this Court for

immediate consideration and to stay its far-reaching expansion of the original Injunction pending

the Sixth Circuit’s decision on the merits of Davis’ appeal of the Expanded Injunction. Because

this matter has been fully briefed in the Sixth Circuit, Davis asks this Court for an expedited

decision on her stay motion.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Injunction.

On July 2, 2015, less than one week after the Supreme Court decided Obergefell v. Hodges

and the Kentucky Governor issued a directive ordering all county clerks to personally authorize

the issuance of Kentucky marriage licenses to same-sex couples, Plaintiffs filed this lawsuit

demanding that Davis authorize and approve their Kentucky marriage licenses, despite widespread

3 See D.E.78, Contempt Hr’g, PgID 1580-81 (emphasis added).


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availability of licenses and Davis’ undisputed religious conscience objection to same-sex

“marriage.”4 D.E. 1, Compl.

Plaintiffs filed the action on behalf of themselves and a putative class consisting of “all

present and future individuals who, though legally eligible to marry in Kentucky, will be denied a

marriage license pursuant to the Defendant’s policy.” D.E. 1, Compl., PgID 9. “Named Plaintiffs”

also moved for a preliminary injunction to bar Davis “from enforcing the challenged policy of

refusing to issue marriage licenses against them” D.E. 2, Pls.’ Mot. Prelim. Inj., PgID 34

(emphasis added)), and submitted a proposed Order enjoining Davis “from enforcing the policy of

refusing to issue marriage licenses to any future marriage license applications submitted by the

Named Plaintiffs” D.E. 2-2, Proposed Prelim. Inj. Order (emphasis added).

This Court scheduled a full evidentiary hearing on the injunction motion, to occur on July

13, 2015—just eleven days after the motion was filed. D.E. 5, Order. Plaintiffs did not, however,

obtain service of process on Davis prior to the hearing. D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015,

PgID 105:15-107:7. Thus, Davis’ counsel appeared specially and objected to this Court’s

proceeding with the hearing, without having obtained jurisdiction over Davis through service of

process. D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2, 117:1-10.

This Court overruled counsel’s objection to proceeding without Davis, took evidence, and heard

argument on Plaintiffs’ preliminary injunction motion. D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015,

PgID 117:1-119:7. After allowing all of Plaintiffs’ evidence and hearing argument, this Court

“continued in progress” the July 13, 2015 hearing (D.E. 21, Prelim. Inj. Hr’g Tr. July 13, 2015,

PgID 207:2-4), and concluded the hearing on July 20, 2015 (D.E. 26, Prelim. Inj. Hr’g Tr. July 20,

4 Expressly to avoid disparate treatment of any couple, Davis discontinued the issuance of all marriage licenses

after Obergefell. D.E. 26, Prelim. Inj. Hr’g Tr. July 20, 2015, PgID 259:6-16.


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2015). Plaintiffs’ evidence at both hearings was limited exclusively to the named Plaintiffs’

claims.5

On August 12, 2015, this Court granted Plaintiffs’ motion for preliminary injunction by its

Memorandum Opinion and Order. D.E. 43. Exactly as requested by Plaintiffs in their motion and

proposed order (D.E. 2, 2-2), the Injunction enjoins Davis “from applying her ‘no marriage

licenses’ policy to future marriage license requests submitted by Plaintiffs.” D.E. 43, Inj., PgID

1173 (emphasis added).) Thus, there was complete agreement between what Plaintiffs requested

and what this Court ordered.6

B. Plaintiffs’ Request For Class Certification.

On August 2, 2015, Plaintiffs filed a motion for class certification. D.E. 31, Pls.’ Mot. Class

Cert. On August 11, 2015, Davis filed a motion for extension of time to respond to Plaintiffs’ class

certification motion, requesting that the Court set a response date for ninety (90) days after this

Court ruled on all of the motions pending before this Court at that time.7 D.E. 42, Mot. Ext. Time

Respond. Plaintiffs filed no written opposition to this motion in the time allotted under the

Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs’ time to oppose expired,

showing that “Plaintiffs’ failure to file a timely written opposition constitutes a waiver of any

5 Because the relief sought by Plaintiffs in their preliminary injunction motion was personal to them, no

evidence was presented on their Complaint’s class allegations or request for class-wide relief. Plaintiffs did not file

their motion for class certification until August 2, 2015. 6 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction motion against Davis, this Court

scheduled no preliminary injunction hearing on Davis’ own motion for preliminary injunction against Third-Party

Defendants Gov. Beshear and Commr. Onkst (D.E. 39), and effectively denied the motion by ordering a stay (on the

court’s own motion) of all proceedings on Davis’ motion pending the Sixth Circuit’s decision on the merits of Davis’

appeal of the Injunction against her. D.E. 58, Order Aug. 25, 2015, PgID 1289. Davis appealed to the Sixth Circuit

this Court’s effectual denial of her preliminary injunction motion (D.E. 66, Notice of Appeal), which appeal is

docketed in that Court at Case No. 15-5961. Gov. Beshear and Commr. Onkst filed a motion to dismiss that appeal,

which the Sixth Circuit denied on September 15, 2015. 7 These pending motions included Plaintiffs’ motion for preliminary injunction (D.E. 2), Davis’ motion to

dismiss Plaintiffs’ Complaint (D.E. 32), and Davis’ motion for preliminary injunction (D.E. 39).


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opposition to Davis’ motion for extension of time.” D.E. 56, Reply Br. Supp. Mot. Ext. Time

Respond, PgID 1289.

On August 25, 2015, this Court granted Davis’ motion for extension of time. D.E. 57,

Virtual Order Aug. 25, 2015 (“Plaintiffs having filed no opposition to the MOTION, IT IS

ORDERED that Defendant Davis’ response to said motion is due 30 days after the Sixth Circuit

Court of Appeals renders its decision on the appeal of the Court's granting of Plaintiffs’ motion

for a preliminary injunction.”) (emphasis added). The effect of this order was to stay all

proceedings on Plaintiffs’ class certification motion until the Sixth Circuit decides the appeal of

the Injunction on the merits.

C. Plaintiffs’ Motion To “Clarify” The Injunction And The “Hearing.”

Despite the unambiguous agreement between what Plaintiffs requested in their motion for

preliminary injunction and what this Court granted in the Injunction, Plaintiffs manufactured a

disingenuous motion to “clarify” the Injunction to encompass a class of persons not covered by

the Injunction. D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj. Specifically, Plaintiffs moved:

for an order to clarify or, in the alternative, to modify the preliminary

injunction to state unambiguously that the preliminary injunction

applies not only to future marriage license requests submitted by

the four named Plaintiff couples in this action, but also to

requests submitted by other individuals who are legally eligible

to marry in Kentucky.

D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1488 (emphasis added). Thus, rather than a motion

to “clarify,” Plaintiffs actually sought to convert the Injunction’s relief, which was limited and

personal to them by their own request, into a class-wide preliminary injunction even though (1)

they had never previously requested a class-wide injunction (D.E. 2-2, Proposed Prelim. Inj.

Order), (2) they presented no actual evidence regarding the purported “other members of the


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putative class” (D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489); and (3) their actual motion

for class certification was stayed (D.E. 57, Virtual Order Aug. 25, 2015).

Plaintiffs filed their motion to “clarify” the Injunction on September 1, 2015, three weeks

after this Court entered its Injunction. D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1488-91.

Moreover, Plaintiffs’ motion to “clarify” was filed on the heels of, or “contemporaneously with”

(Plaintiffs’ words), their motion to hold Davis in contempt of court for violating the Injunction by

failing to authorize a marriage license for one Plaintiff couple. D.E. 67, Pls.’ Contempt Mot.

Within minutes of Plaintiffs’ filing the contempt motion, this Court scheduled a contempt hearing

to occur two days later, ordered Davis and all of her deputy clerks to be present at the hearing, and

limited Davis to filing a five-page opposition by close of business the next day (which Davis did).8

D.E. 69, Order Sept. 1, 2015, PgID 1496; see also D.E. 72, Contempt Resp., PgID 1540-46.

Approximately forty-eight hours later, on September 3, 2015, this Court commenced the

hearing it had exclusively noticed for Plaintiffs’ contempt motion. D.E. 69, Order Sept. 1, 2015,

PgID 1496 (“IT IS ORDERED that this matter be, and is, hereby set for a hearing on Plaintiff's

Motion to Hold Defendant Kim Davis in Contempt of Court DE[67] on Thursday, September 3,

2015 at 11:00 a.m. in Ashland, Kentucky.”); D.E. 78, Contempt Hr’g. Before taking up the

contempt motion, however, and without any advance notice to Davis, this Court called up

Plaintiffs’ motion to “clarify” the Injunction. D.E. 78, Contempt Hr’g, PgID 1570:21-1571:22,

1572:19-1573:19. Davis’ counsel objected to proceeding on the motion to “clarify” due to lack of

fair notice, and due to this Court’s lack of jurisdiction to expand the Injunction because it was

already on appeal. D.E. 78, Contempt Hr’g, PgID 1573:20-1580:19.

8 In her response brief opposing Plaintiffs’ contempt motion, Davis specifically stated that she opposed

Plaintiffs’ thinly-veiled motion to “clarify” the Injunction, and intended to file a written opposition in accordance with

the Local Rules (21 days after service). D.E. 72, Contempt Resp., PgID 1542.


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This Court acknowledged that the motion to “clarify” was not noticed for hearing. D.E. 78,

Contempt Hr’g, PgID 1571:18-20 (“The case wasn’t noticed for that hearing.”). This Court also

acknowledged that the so-called “clarification” sought by Plaintiffs was, in fact, to add relief to

the Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. D.E.

78, Contempt Hr’g, PgID 1578:20-25 (“I recognize they did not request it in the original

motion.” (emphasis added). Nonetheless, over Davis’ objection, and without taking any evidence

to support this class-wide relief, this Court granted the expansion of the Injunction. D.E. 78,

Contempt Hr’g, PgID 1580:3-15. After expanding the Injunction, this Court immediately passed

the issue to the Sixth Circuit. D.E. 78, Contempt Hr’g, PgID 1580-81 (“We’ll just include that as

part of the appeal. . . . And the Sixth Circuit can certainly decide if that’s appropriate.”).

Having expanded the Injunction, this Court then proceeded with hearing the only motion

the court noticed for hearing, Plaintiffs’ contempt motion. D.E. 78, Contempt Hr’g, PgID 1581:18-

19 (“Let me now turn to the actual merits of the matter that’s before the Court.”). The court ordered

Davis to jail as a contempt sanction for Davis’ refusal to issue a marriage license, in violation of

her conscience, to one Plaintiff couple.9 D.E. 78, Contempt Hr’g, PgID 1659:22-1661:25. The

condition for Davis’ release would be her compliance with the Expanded Injunction, not the

original Injunction D.E. 78, Contempt Hr’g, PgID 1661:18-1662:16. This Court then appointed

criminal defense counsel for each of Davis’ deputy clerks—all of whom had been summoned in

advance to the hearing—and interrogated each deputy clerk as to whether each of them would

9 This Court memorialized this most severe of contempt sanctions against Davis by a mere “minutes” order

(D.E. 75 (the “Contempt Order”)); no formal written order has been entered. (D.E. 78, Contempt Hr’g, PgID 1651:21-

24 (“I haven’t decided if I’m going to enter a written order or not. I probably will enter some sort of written order

following up the Court’s decision.”).) Davis separately appealed the Contempt Order to the Sixth Circuit (D.E. 83,

Contempt Order Notice of Appeal), which appeal has been docketed as Case No. 15-5978.


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issue marriage licenses without Davis’ authorization. D.E. 78, Contempt Hr’g, PgID 1667:19-

1730:6.

On September 8, 2015, the sixth day of Davis’ incarceration, Plaintiffs filed a status report,

showing this Court that the Plaintiffs had received marriage licenses from the deputy clerks.10 D.E.

84, Status Report. Following the status report, this Court ordered Davis released, stating in its order

the court was “satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue

marriage licenses” under the Injunction. D.E. 89 (the “Release Order”), PgID 1827-28. The

Release Order commands, however, “Davis shall not interfere in any way, directly or indirectly,

with the efforts of her deputy clerks to issue marriage licenses,” on pain of new sanctions for

contempt. D.E. 89, Release Order, PgID 1828. The order also requires the deputy clerks, through

their appointed criminal defense counsel (see D.E. 106-111), to file status reports with this Court

every fourteen days. D.E. 89, Release Order, PgID 1828.

D. Davis’ Emergency Motion To Stay Expanded Injunction.

On September 11, 2015, Davis filed an emergency motion in the Sixth Circuit requesting

an order staying the September 3, 2015 Expanded Injunction pending appeal. As noted above,

Davis originally filed this motion in the Sixth Circuit based in large part upon this Court’s

consideration of the request for an expanded injunction without notice and its remarks at the

September 3, 2015 hearing, including: “We’ll just include that [the order expanding the original

injunction] as part of the appeal. . . . And the Sixth Circuit can certainly decide if that’s

10 The status report showed that three of the four Plaintiff couples had received marriage licenses. D.E. 84,

Status Report, PgID 1798. Plaintiffs had previously shown this Court, however, that as of August 13, 2015, Plaintiffs

Burke and Napier were “making new wedding arrangements.” D.E. 46, Pls.’ Resp. Mot. Stay Prelim. Inj., PgID 1235.

This fourth couple has never testified in this case or otherwise supplied verified proof that they are qualified to obtain

a marriage license, or that they have not received one, both prerequisites to injunctive relief. D.E. 29, Resp. Pls.’ Mot.

Prelim. Inj., PgID 359. Moreover, based on the status report, this Court found, “Plaintiffs have obtained marriage

licenses . . . .” D.E. 89, Release Order, PgID 1827.


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appropriate.” D.E.78, Contempt Hr’g, PgID 1580-81 (emphasis added). Based upon this Court’s

actions and foregoing statements, Davis understood a motion for a stay of the expanded injunction

to be “impracticable” under Federal Rule of Appellate Procedure 8(a)(1), and sought relief from

the Sixth Circuit.11 An expedited briefing schedule was set on this motion in the Sixth Circuit. On

September 15, 2015, Plaintiffs and the Third-Party Defendants filed response briefs to Davis’

emergency motion for a stay of the expanded injunction.12 On September 16, 2015, Davis filed her

reply brief.13 On September 17, 2015, the Sixth Circuit denied Davis’ motion for a stay because

Davis “has not sought a stay pending appeal in the district court as required by Federal Rule of

Appellate Procedure 8(a)(1),” and concluded that it would not be impracticable for Davis to move

this Court for a stay pending appeal.14

Accordingly, Davis now moves this Court for immediate and expedited consideration of

her Motion to Stay this Court’s September 3, 2015 injunction order. As indicated above, the matter

is already substantively briefed by the parties. See Exs. A-D. Therefore, Davis asks for an

expedited decision from this Court on her Motion.

III. STANDARD OF REVIEW

In deciding a motion for stay pending appeal, Sixth Circuit courts evaluate the same four

factors that are traditionally considered in evaluating a motion for preliminary injunction: “(1) the

likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood

that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be

11 A copy of Davis’ Motion to Stay filed in the Sixth Circuit (without exhibits) is attached as Exhibit “A.” 12 A copy of the Plaintiffs’ and Third-Party Defendants’ response briefs are attached as Exhibits “B” and “C,”

respectively. 13 A copy of Davis’ reply brief in support of the Motion to Stay is attached as Exhibit “D.” 14 A copy of the Sixth Circuit’s order dated September 17, 2015 is attached as Exhibit “E.”


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harmed if the court grants the stay; and (4) the public interest in granting the stay.” Mich. Coal. of

Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

IV. ARGUMENT

A. Davis Has A Strong Likelihood Of Success On The Merits Of Her Appeal Of

The Expanded Injunction To Warrant An Immediate Stay Pending Appeal.

This Court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. As

such, Davis has a strong likelihood of success in obtaining reversal of the Expanded Injunction on

the merits of her appeal. “[A] a district court may not alter or enlarge the scope of its judgment

pending appeal . . . .” N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). “The

standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may

enforce its judgment but not expand upon it.” Am. Town Ctr. v. Hall 83 Associates, 912 F.2d

104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391,

95-1258, 1995 WL 469430, *18 (6th Cir. 1995) (“[S]ince the district court's . . . orders were already

on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds

which it had required defendants to provide in its . . . orders.” (emphasis added)); City of

Cookeville, Tenn. v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 388, 394 (6th Cir.

2007) (“The district court did not have jurisdiction to issue the injunction because the

injunction sought to expand the district court’s previous order.”) (emphasis added);

The Sixth has drawn a crucial distinction between expansion (or enlargement) of orders,

including injunctions, and enforcement of them. See Cookeville, 484 F.3d at 394 (citing Am. Town

Ctr., 912 F.2d at 110). Thus, nothing in Federal Rule of Civil Procedure 62(c)15 (which Plaintiffs

cited in their thinly-veiled motion to “clarify”) permits an expansion or enlargement of an

15 In relevant part, this Rule provides that “While an appeal is pending from an interlocutory order or final

judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction

on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c).


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injunction order on appeal. In this matter, this Court did not “modify” its original Injunction—

instead, by its own words, it significantly “expanded” the Injunction and provided relief that

Plaintiffs did not originally request. But any amendment of an order without jurisdiction is a

“nullity.” Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) (“Since the district court was

without jurisdiction to amend its order . . . the Amended Order . . . is a nullity.”); United States v.

Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) (“In the present case, the district court's order is

‘null and void since that court was without jurisdiction . . . after the appeal had been taken.’”).

Plaintiffs’ Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis

to issue licenses to the “Named Plaintiffs.” The resulting Injunction enjoined Davis to issue

licenses, expressly and only, to the “Plaintiffs.” The scope of the Injunction could not be clearer.

There is no “confusion as to the Order’s scope,” as Plaintiffs facetiously allege in their thinly-

veiled motion to “clarify.” D.E. 68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489. Thus, expanding

the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world

who wants a marriage license in Rowan County—can in no way be described as a clarification.

The expansion of the class is an expansion of the Injunction, which this Court had no jurisdiction

to do. Thus, the Expanded Injunction is a nullity.

In fact, this Court unambiguously agrees that it “expanded” its preliminary injunction while

it was on appeal to the Sixth Circuit. In granting the Expanded Injunction, this Court explicitly

recognized that the so-called “clarification” sought by Plaintiffs was, in fact, to add relief to the

Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. D.E. 78,

Contempt Hr’g, PgID 1578:20-25 (“I recognize they did not request it in the original motion.”

(emphasis added)). Even more recently, this Court expressly acknowledged, again, its expansion

of the injunction: “On September 3, 2015, the Court granted Plaintiffs’ Motion Pursuant to Rule


12

62(c) to Clarify the Preliminary Injunction Pending Appeal and expanded its ruling to include

other individuals who are legally eligible to marry in Kentucky. (Docs. #68 and 74).” D.E. 103,

Sept. 11, 2015 Order, PgID 2177 (emphasis added). Accordingly, because Davis has a strong

likelihood of succeeding on the merits of her appeal of the Expanded Injunction, this Court should

immediately stay the Expanded Injunction pending appeal.

B. The Remaining Factors Also Favor Staying This Court’s Expanded Injunction

Because It Is Null And Void.

Because the likelihood of success on Davis’ appeal of the Expanded Injunction is clear

based upon this Court’s lack of jurisdiction, this Court need not even make specific findings on

the other factors weighed in granting a stay since “fewer factors” are dispositive. See Six Clinics

Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997). Nevertheless, the

remaining factors provide additional support for granting a stay of the Expanded Injunction.

Because orders exceeding a district court’s jurisdiction are “null and void,” Holloway, 740

F.2d at 1382, no public interest is served by upholding this Court’s Expanded Injunction. The filing

of a notice of appeal (which Davis filed the same day the original Injunction was entered) is a point

of “jurisdictional significance,” conferring jurisdiction on the appellate court and divesting this

Court of same. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). To permit

the Expanded Injunction to stand while Davis’ appeal is pending sets a dangerous and harmful

precedent for parties challenging by right injunction orders in the appellate court. Such persons

(like Davis) could be subjected to competing obligations and onerous burdens for exercising their

appellate rights, with potentially grave (and escalating) consequences.

Those consequences to Davis are real in this case. This Court has already found Davis in

contempt for allegedly violating the original Injunction, and incarcerated Davis for six days as a

sanction for the purported contempt. This immeasurable harm and loss of freedom, coupled with


13

this Court’s ominous directives in its September 8, 2015 release order—stating that any

interference with the issuance of marriage licenses “to all legally eligible couples” will “be

considered a violation of this Order and appropriate sanctions will be considered” (D.E. 89,

Release Order, PgID 1828)—demonstrate that, according this Court, any violation of its Expanded

Injunction (rather than its original injunction), will be cause for further contempt proceedings.16

Such mandates hold Davis hostage on an order it had no lawful jurisdiction to entertain, let alone

authority to enter. These burdens and threats are unnecessary and improper. As an order of

enforcement, the Release Order serves no purpose with respect to the original Injunction because

only the Plaintiffs were granted relief in the original Injunction, and this Court is already “satisfied”

that Plaintiffs have received their ordered relief. D.E. 89, Release Order, PgID 1827-28.17 Thus,

this Court only has an enforcement interest under the Expanded Injunction which, as shown herein,

is “null and void” as exceeding this Court’s jurisdiction. See Holloway, 740 F.2d at 1382. Only a

stay of the Expanded Injunction pending Davis’ appeal will avoid this improper exercise of

enforcement power.

16 In weighing the harm that will occur as a result of granting or denying a stay, Sixth Circuit courts generally

consider three factors: “(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the

adequacy of the proof provided.” Michigan Coal., 945 F.2d at 154. The “key word” in this consideration is

“irreparable,” and the harm must be “both certain and immediate, rather than speculative or theoretical.” Id. Given the

strength of Davis’ position on the merits, her required showing on irreparable injury is reduced. “The probability of

success that must be demonstrated is inversely proportional to the amount of irreparable injury [the moving party] will

suffer absent the say. Simply stated, more of one excuses less of the other.” Mich. Coal., 945 F.2d at 153 (internal

citation omitted). In other words, “a stay may be granted with either a high probability of success and some injury or

vice versa.” State of Ohio v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). Nonetheless, Davis’s

harm from the denial of a stay is both real and irreparable. 17 Moreover, the Plaintiffs in other cases pending against Davis in this Court, David Ermold, et al. v. Kim Davis,

et al., No. 15-cv-00046-DLB, and James Yates, et al. v. Kim Davis, et al., No. 15-cv-00062-DLB, have also secured

marriage licenses not authorized by Davis. See, e.g., Marriage Licenses Issued in Kentucky, but Debate Continues,

N.Y. TIMES, Sept. 4, 2015, available at http://www.nytimes.com/2015/09/05/us/kim-davis-same-sex-

marriage.html?_r=0 (last accessed Sept. 18, 2015); David Ermold and David Moore finally issued marriage license,

DAILYMAIL.COM, Sept. 4, 2015, available at http://www.dailymail.co.uk/video/news/video-1212676/David-Ermold-

David-Moore-finally-issued-marriage-license.html (last accessed Sept. 18, 2015).


14

In stark contrast to the threat of sanctions hanging over Davis each day she enters her office

while waiting for a merits decision from the Sixth Circuit on her appeals, Plaintiffs will suffer no

harm if the Expanded Injunction is stayed pending appeal. Plaintiffs have already received the

benefits of the Injunction, to the “satisfaction” of this Court. D.E. 89, Release Order, PgID 1827-

28. Plaintiffs received no additional relief from the Expanded Injunction; staying its enforcement

pending Davis’s appeal cannot harm them. Accordingly, because there is no public interest in

enforcing an order that is null and void, this Court should immediately stay the Expanded

Injunction pending appeal.

V. CONCLUSION

For all the foregoing reasons, and those set forth in Davis’ briefing on this Motion filed in

the Sixth Circuit, which is attached hereto and incorporated by reference here, Davis’ Emergency

Motion for Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order

Pending Appeal should be granted.


A.C. Donahue


P.O. Box 659


Tel: (606) 677-2741

Fax: (606) 678-2977

[email protected]


Horatio G. Mihet

Roger K. Gannam


Liberty Counsel

P.O. Box 540774


Tel: (800) 671-1776

Fax: (407) 875-0770

[email protected]

[email protected]

[email protected]

Attorneys for Defendant/Third-Party Plaintiff

Kim Davis



I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF

filing system and therefore service will be effectuated by the Court’s electronic notification system

upon the following counsel or parties of record:

Daniel J. Canon Jeffrey C. Mando

L. Joe Dunman Claire Parsons

Laura E. Landenwich ADAMS, STEPNER, WOLTERMANN &

CLAY DANIEL WALTON ADAMS, PLC DUSING, PLLC

462 S. Fourth Street, Suite 101 40 West Pike Street

Louisville, KY 40202 Covington, KY 41011



[email protected]

Attorneys for Defendant Rowan County

William Ellis Sharp

ACLU OF KENTUCKY William M. Lear, Jr.

315 Guthrie Street, Suite 300 Palmer G. Vance II

Louisville, KY 40202 STOLL KEENON OGDEN PLLC

[email protected] 300 West Vine Street, Suite 2100


Attorneys for Plaintiffs [email protected]

[email protected]

Attorneys for Third-Party Defendants Steven

L. Beshear, Governor of Kentucky, and

Wayne Onkst, State Librarian and

Commissioner for Kentucky Department for

Libraries and Archives

DATED: September 18, 2015 /s/ Jonathan D. Christman


Attorney for Defendant/Third-Party Plaintiff

Kim Davis



No. 15-5880

__________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________

APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE;

STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON

SKAGGS; and BARRY SPARTMAN,

Plaintiffs-Appellees,

v.

KIM DAVIS, Individually,

Defendant-Appellant.

__________________________

On Appeal From The United States District Court

For The Eastern District of Kentucky

In Case No. 15-cv-00044 Before The Honorable David L. Bunning

__________________________

APPELLANT KIM DAVIS’ EMERGENCY MOTION FOR IMMEDIATE

CONSIDERATION AND MOTION TO STAY DISTRICT COURT’S

SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL

__________________________

A.C. Donahue Horatio G. Mihet, Counsel of Record

DONAHUE LAW GROUP, P.S.C. Roger K. Gannam

P.O. Box 659 Jonathan D. Christman

Somerset, Kentucky 42502 LIBERTY COUNSEL

(606) 677-2741 P.O. Box 540774

[email protected] Orlando, Florida 32854

(800) 671-1776


[email protected]

Counsel for Appellant Kim Davis

Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 1Case: 0:15-cv-00044-DLB Doc #: 113-2 Filed: 09/18/15 Page: 2 of 22 - Page ID#: 2221

1

Pursuant to Fed. R. App. P. 8(a)(2) and 27, Appellant Kim Davis (“Davis”)

hereby moves this Court, on an emergency basis, for a stay pending appeal of the

district court’s September 3, 2015 injunction order. (R.74.)

INTRODUCTION

This appeal began with the district court’s entry of its August 12, 2015

preliminary injunction ordering Davis to issue marriage licenses to the named

Plaintiffs. (R.43 (the “Injunction”).) Davis immediately filed a notice of appeal of

the Injunction, bringing it within this Court’s jurisdiction, and depriving the district

court of jurisdiction to alter or expand the Injunction’s scope.1 (R.44 (Injunction and

notice of appeal attached hereto as Exhibit A).) But the district court did just that,

without fair notice or hearing, by entering a new injunction order that materially

expanded the original Injunction while it was already on appeal to this Court. (R.74

(the “Expanded Injunction”).) The district court’s Expanded Injunction lays waste

to well-established principles of jurisdiction and due process in the federal court

system while an appeal is pending. And, under color of the Expanded Injunction, the

district court has coopted a supervisory role over the operations of the Rowan

County, Kentucky Clerk’s Office.

1 Davis presented substantial arguments against the merits of the Injunction in

its motion to stay the Injunction pending appeal filed herein. (Doc. 15-1.) Davis will

fully address the merits of the Injunction in her opening brief on the merits, to be

filed with this Court at the appropriate time.


2

Davis timely appealed the Expanded Injunction. (R.82 (Expanded Injunction

and notice of appeal attached hereto as Exhibit B).) Quite apart from Davis’ religious

liberty interests involved in her appeal of the original Injunction on the merits, her

appeal of the Expanded Injunction, and this request for stay, involve only the issue

of the district court’s acting without jurisdiction. The district court’s far-reaching

expansion of the original Injunction must be reversed, and should be stayed pending

this Court’s decision on the merits.

STATEMENT OF FACTS

The Injunction

On July 2, 2015, less than one week after the Supreme Court decided

Obergefell v. Hodges and the Kentucky Governor issued a directive ordering all

county clerks to personally authorize the issuance of Kentucky marriage licenses to

same-sex couples, Plaintiffs filed this lawsuit demanding that Davis authorize and

approve their Kentucky marriage licenses, despite widespread availability of

licenses and Davis’ undisputed religious conscience objection to same-sex

“marriage.”2 (R.1, Compl.)

2 Expressly to avoid disparate treatment of any couple, Davis discontinued the

issuance of all marriage licenses after Obergefell. (R.26, Prelim. Inj. Hr’g Tr. July

20, 2015, PgID 259:6-16.)


3

Plaintiffs filed the action on behalf of themselves and a putative class

consisting of “all present and future individuals who, though legally eligible to marry

in Kentucky, will be denied a marriage license pursuant to the Defendant’s policy.”

(R.1, Compl., PgID 9.) “Named Plaintiffs” also moved for a preliminary injunction

to bar Davis “from enforcing the challenged policy of refusing to issue marriage

licenses against them” (R.2, Pls.’ Mot. Prelim. Inj., PgID 34 (emphasis added)), and

submitted a proposed Order enjoining Davis “from enforcing the policy of refusing

to issue marriage licenses to any future marriage license applications submitted by

the Named Plaintiffs” (R.2-2, Proposed Prelim. Inj. Order (emphasis added)).

The district court hastily scheduled a full evidentiary hearing on the injunction

motion, to occur on July 13, 2015—just eleven days after the motion was filed. (R.5,

Order.) Plaintiffs did not, however, obtain service of process on Davis prior to the

hearing. (R.21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 105:15-107:7.) Thus,

Davis’ counsel appeared specially and objected to the district court’s proceeding

with the hearing, without having obtained jurisdiction over Davis through service of

process. (R.21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2,

117:1-10.) Deeming the fundamental jurisdictional defects mere “Road blocks to

getting to the merits,” the district court overruled counsel’s objection to proceeding

without Davis, took evidence, and heard argument on Plaintiffs’ preliminary

injunction motion. (R.21, Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 117:1-119:7.)


4

After allowing all of Plaintiffs’ evidence and hearing argument, the district court

“continued in progress” the July 13, 2015 hearing (R.21, Prelim. Inj. Hr’g Tr. July

13, 2015, PgID 207:2-4), and concluded the hearing on July 20, 2015 (R.26, Prelim.

Inj. Hr’g Tr. July 20, 2015). Plaintiffs’ evidence at both hearings was limited

exclusively to the named Plaintiffs’ claims.3

On August 12, 2015, the district court granted Plaintiffs’ motion for

preliminary injunction by its Memorandum Opinion and Order (R.43 (the

“Injunction”).) Exactly as requested by Plaintiffs in their motion and proposed order

(R.2, 2-2), the Injunction enjoins Davis “from applying her ‘no marriage licenses’

policy to future marriage license requests submitted by Plaintiffs.” (R.43, Inj.,

PgID 1173 (emphasis added).) Thus, there was complete agreement between what

Plaintiffs requested and what the district court ordered.4

3 Because the relief sought by Plaintiffs in their preliminary injunction motion

was personal to them, no evidence was presented on their Complaint’s class

allegations or request for class-wide relief. Plaintiffs did not file their motion for

class certification until August 2, 2015. 4 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction

motion against Davis, the district court brushed away any urgency regarding Davis’

own motion for preliminary injunction against Third-Party Defendant Governor

Beshear (R.39), and effectively denied the motion by ordering a stay (on the court’s

own motion) of all proceedings on Davis’ motion pending this Court’s decision on

the merits of Davis’ appeal of the Injunction against her. (R.58, Order Aug. 25, 2015,

PgID 1289.) Davis appealed to this Court the district court’s effectual denial of her

preliminary injunction motion (R.66, Notice of Appeal), which appeal is docketed

at Case No. 15-5961.


5

Plaintiffs’ Request For Class Certification

On August 2, 2015, Plaintiffs filed a motion for class certification. (R.31, Pls.’

Mot. Class Cert.). On August 11, 2015, Davis filed a motion for extension of time

to respond to Plaintiffs’ class certification motion, requesting that the Court set a

response date for ninety (90) days after the district court ruled on all of the motions

pending before the district court at that time.5 (R.42, Mot. Ext. Time Respond.)

Plaintiffs filed no written opposition to this motion in the time allotted under

the Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs’ time

to oppose expired, showing that “Plaintiffs’ failure to file a timely written opposition

constitutes a waiver of any opposition to Davis’ motion for extension of time.”

(R.56, Reply Br. Supp. Mot. Ext. Time Respond, PgID 1289.)

On August 25, 2015, the district court granted Davis’ motion for extension of

time. (R.57, Virtual Order Aug. 25, 2015 (“Plaintiffs having filed no opposition to

the MOTION, IT IS ORDERED that Defendant Davis’ response to said motion is

due 30 days after the Sixth Circuit Court of Appeals renders its decision on the

appeal of the Court's granting of Plaintiffs’ motion for a preliminary injunction.”).)

5 These pending motions included Plaintiffs’ motion for preliminary injunction

(R.2), Davis’ motion to dismiss Plaintiffs’ Complaint (R.32), and Davis’ motion for

preliminary injunction (R.39).


6

The effect of this order was to stay all proceedings on Plaintiffs’ class certification

motion until this Court decides the appeal of the Injunction on the merits.

Plaintiffs’ Motion to “Clarify” the Injunction and the “Hearing”

Despite the unambiguous agreement between what Plaintiffs requested in

their motion for preliminary injunction and what the district court granted in the

Injunction, Plaintiffs manufactured a disingenuous motion to “clarify” the Injunction

to encompass a class of persons not covered by the Injunction. (R.68, Pls.’ Mot.

“Clarify” Prelim. Inj.) Specifically, Plaintiffs moved:

for an order to clarify or, in the alternative, to modify the

preliminary injunction to state unambiguously that the

preliminary injunction applies not only to future

marriage license requests submitted by the four named

Plaintiff couples in this action, but also to requests

submitted by other individuals who are legally eligible

to marry in Kentucky.

(R.68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1488 (emphasis added).) Thus, rather

than a motion to “clarify,” Plaintiffs actually sought to convert the Injunction’s

relief, which was limited and personal to them by their own request, into a class-

wide preliminary injunction even though (1) they had never previously requested a

class-wide injunction (R.2-2, Proposed Prelim. Inj. Order), (2) they presented no

actual evidence regarding the purported “other members of the putative class” (R.68,

Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489); and (3) their actual motion for class

certification was stayed. (R.57, Virtual Order Aug. 25, 2015.)


7

Plaintiffs filed their motion to “clarify” the Injunction on September 1, 2015,

three weeks after the district court entered its Injunction. (R.68, Pls.’ Mot. “Clarify”

Prelim. Inj., PgID 1488-91.) Moreover, Plaintiffs’ motion to “clarify” was filed on

the heels of, or “contemporaneously with” (Plaintiffs’ words), their motion to hold

Davis in contempt of court for violating the Injunction by failing to authorize a

marriage license for one Plaintiff couple. (R.67, Pls.’ Contempt Mot.) Within

minutes of Plaintiffs’ filing the contempt motion, the district court scheduled a

contempt hearing to occur two days later, ordered Davis and all of her deputy clerks

to be present at the hearing, and limited Davis to filing a five-page opposition by

close of business the next day (which Davis did).6 (R.69, Order Sept. 1, 2015, PgID

1496; see also R.72, Contempt Resp., PgID 1540-46.)

Approximately forty-eight hours later, on September 3, 2015, the district court

commenced the hearing it had exclusively noticed for Plaintiffs’ contempt motion.

(R.69, Order Sept. 1, 2015, PgID 1496 (“IT IS ORDERED that this matter be, and

is, hereby set for a hearing on Plaintiff's Motion to Hold Defendant Kim Davis in

Contempt of Court DE[67] on Thursday, September 3, 2015 at 11:00 a.m. in

Ashland, Kentucky.”); R.78, Contempt Hr’g (the hearing transcript, attached hereto

6 In her response brief opposing Plaintiffs’ contempt motion, Davis specifically

stated that she opposed Plaintiffs’ thinly-veiled motion to “clarify” the Injunction,

and intended to file a written opposition in accordance with the Local Rules (21 days

after service). (R.72, Contempt Resp., PgID 1542.)


8

as Exhibit C).) Before taking up the contempt motion, however, and without any

advance notice to Davis, the district court called up Plaintiffs’ motion to “clarify”

the Injunction. (R.78, Contempt Hr’g, PgID 1570:21-1571:22, 1572:19-1573:19.)

Davis’ counsel objected to proceeding on the motion to “clarify” due to lack of fair

notice, and due to the district court’s lack of jurisdiction to expand the Injunction

because it was already on appeal. (R.78, Contempt Hr’g, PgID 1573:20-1580:19.)

The district court acknowledged that the motion to “clarify” was not noticed

for hearing. (R.78, Contempt Hr’g, PgID 1571:18-20 (“The case wasn’t noticed for

that hearing.”).) The district court also acknowledged that the so-called

“clarification” sought by Plaintiffs was, in fact, to add relief to the Injunction which

was not sought by Plaintiffs in their motion for preliminary injunction. (R.78,

Contempt Hr’g, PgID 1578:20-25 (“I recognize they did not request it in the

original motion.” (emphasis added)).) Nonetheless, over Davis’ objection, and

without taking any evidence to support this class-wide relief, the district court

granted the expansion of the Injunction. (R.78, Contempt Hr’g, PgID 1580:3-15.)

After expanding the Injunction, the court immediately passed the issue to this Court.

(R.78, Contempt Hr’g, PgID 1580-81 (“We’ll just include that as part of the appeal.

. . . And the Sixth Circuit can certainly decide if that’s appropriate.”).)

Having expanded the Injunction, the district court then proceeded with

hearing the only motion the court noticed for hearing, Plaintiffs’ contempt motion.


9

(R.78, Contempt Hr’g, PgID 1581:18-19 (“Let me now turn to the actual merits of

the matter that’s before the Court.”).) The court ordered Davis to jail as a contempt

sanction for Davis’ refusal to issue a marriage license, in violation of her conscience,

to one Plaintiff couple.7 (R.78, Contempt Hr’g, PgID 1659:22-1661:25.) The

condition for Davis’ release would be her compliance with the Expanded Injunction,

not the original Injunction (R.78, Contempt Hr’g, PgID 1661:18-1662:16.) The

district court then appointed criminal defense counsel for each of Davis’ deputy

clerks—all of whom had been summoned in advance to the hearing—and

interrogated each deputy clerk as to whether each of them would issue marriage

licenses without Davis’ authorization. (R.78, Contempt Hr’g, PgID 1667:19-

7 The district court memorialized this most severe of contempt sanctions against

Davis by a mere “minutes” order (R.75 (the “Contempt Order”)); no formal written

order has been entered. (R.78, Contempt Hr’g, PgID 1651:21-24 (“I haven’t decided

if I’m going to enter a written order or not. I probably will enter some sort of written

order following up the Court’s decision.”).) Davis separately appealed the Contempt

Order to this Court (R. 83, Contempt Order Notice of Appeal), which appeal has

been docketed as Case No. 15-5978. Davis also filed therein, on September 8, 2015,

an emergency motion to stay the Contempt Order pending appeal. As shown in

Davis’ emergency motion to stay the Contempt Order, and as will be more fully

developed in Davis’ brief on the merits of that order at the appropriate time, the

district court failed to provide Davis requisite due process in the contempt

proceedings. Among other fundamental errors, the district court provided no notice

that it would significantly expand and alter its Injunction at the contempt hearing,

while the Injunction was already on appeal, and then confine Davis to prison based

upon the ultra vires and expanded preliminary injunction.


10

1730:6.) All but one (Davis’ son) were coerced by the threat of contempt sanctions

to answer “yes.”8 (Id.)

On September 8, 2015, the sixth day of Davis’ incarceration, Plaintiffs filed a

status report, showing the district court that the Plaintiffs had received marriage

licenses from the deputy clerks.9 (R.84, Status Report.) Following the status report,

the district court ordered Davis released, stating in its order the court was “satisfied

that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage

licenses” under the Injunction. (R.89 (the “Release Order”), PgID 1827-28.) The

Release Order commands, however, “Davis shall not interfere in any way, directly

8 One deputy clerk, Kristie Plank, has the primary responsibility within the

Rowan County Clerk’s Office for servicing automobile dealers, a critical position

within the office which does not include the issuance of marriage licenses. (R.78,

Contempt Hr’g, PgID 1698:25-1705:5.) She expressed concern with assenting to the

issuance of marriage licenses to the extent it would interfere with her legitimate

existing responsibilities. (Id.) Another deputy clerk, Melissa Thompson, tearfully

agreed to issue licenses under the court’s order, but was clearly under duress, stating,

“I don’t really want to, but I will comply with the law. I’m a preacher’s daughter,

and this is the hardest thing I’ve ever done in my life . . . . None of us hate anybody.

It’s just hard.” (R.78, Contempt Hr’g, 1692:17-1697:8.) 9 The status report showed that three of the four Plaintiff couples had received

marriage licenses. (R.84, Status Report, PgID 1798.) Plaintiffs had previously shown

the court, however, that as of August 13, 2015, Plaintiffs Burke and Napier were

“making new wedding arrangements.” (R.46, Pls.’ Resp. Mot. Stay Prelim. Inj.,

PgID 1235.) This fourth couple has never testified in this case or otherwise supplied

verified proof that they are qualified to obtain a marriage license, or that they have

not received one, both prerequisites to injunctive relief. (R.29, Resp. Pls.’ Mot.

Prelim. Inj., PgID 359.) Moreover, based on the status report, the district court found,

“Plaintiffs have obtained marriage licenses . . . .” (R.89, Release Order, PgID 1827.)


11

or indirectly, with the efforts of her deputy clerks to issue marriage licenses,” on

pain of new sanctions for contempt. (R.89, Release Order, PgID 1828.) The order

also requires the deputy clerks, through their appointed criminal defense counsel, to

file status reports with the district court every fourteen days. (R.89, Release Order,

PgID 1828.)

Emergency Motion to Stay

Davis now moves this Court for an order staying the September 3, 2015

Expanded Injunction pending appeal. Seeking a ruling from the district court on a

stay request is “impracticable” under Fed. R. App. P. 8(a)(2)(A)(i), due to the

extraordinary doggedness of the district court to expand the Injunction, without

jurisdiction or fair notice and opportunity to be heard, and the district court’s haste

to pass the matter to this Court for determination—“the Sixth Circuit can certainly

decide if that’s appropriate” (R.78, Contempt Hr’g, PgID 1580-81). Accordingly,

Davis now seeks a stay from this Court.

ARGUMENT

In deciding a motion for stay pending appeal, this Court balances the same

four factors that are traditionally considered in evaluating a motion for preliminary

injunction: “(1) the likelihood that the party seeking the stay will prevail on the

merits of the appeal; (2) the likelihood that the moving party will be irreparably

harmed absent a stay; (3) the prospect that others will be harmed if the court grants


12

the stay; and (4) the public interest in granting the stay.” Mich. Coal. of Radioactive

Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

I. Davis has a sufficient likelihood of success on the merits of her appeal

to warrant an immediate stay of the Expanded Injunction.

The district court had no jurisdiction to enter the Expanded Injunction. Thus,

it is a nullity. There is no doubt as to Davis’ likelihood of success in obtaining

reversal of the Expanded Injunction on the merits.

“[A] a district court may not alter or enlarge the scope of its judgment pending

appeal . . . .” N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987).

“The standard for jurisdiction after the filing of the notice of appeal . . . is that a

district court may enforce its judgment but not expand upon it.” Am. Town Ctr. v.

Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf.

United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th

Cir. 1995) (“[S]ince the district court's . . . orders were already on appeal, the district

court lacked jurisdiction . . . to reduce the number of mental health beds which it

had required defendants to provide in its . . . orders.” (emphasis added)).

Any amendment of an order without jurisdiction is a “nullity.” Workman v.

Tate, 958 F.2d 164, 168 (6th Cir. 1992) (“Since the district court was without

jurisdiction to amend its order . . . the Amended Order . . . is a nullity.”); United

States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) (“In the present case, the


13

district court's order is ‘null and void since that court was without jurisdiction . . .

after the appeal had been taken.’”).

Plaintiffs’ Motion for Preliminary Injunction expressly, and only, sought to

enjoin Davis to issue licenses to the “Named Plaintiffs.” The resulting Injunction

enjoined Davis to issue licenses, expressly and only, to the “Plaintiffs.” The scope

of the Injunction could not be clearer. There is no “confusion as to the Order’s

scope,” as Plaintiffs facetiously allege in their thinly-veiled motion to “clarify.”

(R.68, Pls.’ Mot. “Clarify” Prelim. Inj., PgID 1489.) Thus, expanding the class of

persons entitled to licenses pursuant to the Injunction—to include anyone in the

world who wants a marriage license in Rowan County—can in no way be described

as a clarification. The expansion of the class is an expansion of the Injunction, which

the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity,

and unquestionably is due to be reversed on the merits.

II. Davis is substantially more harmed than the named Plaintiffs absent a

stay of the Expanded Injunction pending appeal.

In weighing the harm that will occur as a result of granting or denying a stay,

this Court generally considers three factors: “(1) the substantiality of the injury

alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof

provided.” Michigan Coal., 945 F.2d at 154. The “key word” in this consideration


14

is “irreparable,” and the harm must be “both certain and immediate, rather than

speculative or theoretical.” Id.

Given the strength of Davis’ position on the merits, her required showing on

irreparable injury is reduced. “The probability of success that must be demonstrated

is inversely proportional to the amount of irreparable injury [the moving party] will

suffer absent the say. Simply stated, more of one excuses less of the other.” Mich.

Coal., 945 F.2d at 153 (internal citation omitted). In other words, “a stay may be

granted with either a high probability of success and some injury or vice versa.”

State of Ohio v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987).

Nonetheless, Davis’s harm from the denial of a stay will be both real and irreparable.

Pursuant to the Release Order, the district court is now supervising the

operations and personnel of the Rowan County Clerk’s Office, including Davis as

the Clerk, and her deputy clerks. (R.89, Release Order, PgID 1828.) Far from being

straightforward, however, the Release Order’s command that “Davis shall not

interfere in any way, directly or indirectly, with the efforts of her deputy clerks to

issue marriage licenses” substantially and ambiguously interferes with Davis’ ability

to manage the legitimate affairs of her office which are unrelated to her individual

position on marriage licensing.

For example, Davis’ management judgment to assign a particular deputy clerk

or clerks exclusively to non-marriage-licensing duties—based on the needs of the


15

office10—could be deemed “interfere[nce] . . . in any way, directly or indirectly, with

the efforts of her deputy clerks to issue marriage licenses . . . .” (R.89, Release Order,

PgID 1828.) Furthermore, the Release Order’s directive conflicts with Davis’ own

legal duty, as an employer, to consider and grant as appropriate any deputy clerk’s

request for religious accommodation relating to marriage licenses11 under laws like

Title VII and the Kentucky RFRA. These ambiguous burdens on Davis’

management of the affairs of her office all carry the specter of new (and presumably,

more severe) contempt sanctions, and the threat is indefinite because the Expanded

Injunction opens the Injunction’s relief to everyone (in the world) who may desire a

Kentucky marriage license issued in Rowan County. The harm from having to

operate under this constant threat is irreparable, for even success on the merits of

Davis’ appeals cannot restore the months of constant strain imposed on Davis, her

office, and her employees by the district court’s intrusive supervision.

The foregoing burdens and threats of contempt sanctions are more than

hypothetical; Davis has already spent six days in jail that Plaintiffs could obtain

the relief ordered by the original Injunction (while its merits are still on appeal). But,

such burdens and threats are unnecessary and improper. As an order of enforcement,

the Release Order serves no purpose with respect to the original Injunction because

10 See supra, n. 8. 11 See supra, n. 8.


16

only the Plaintiffs were granted relief in the original Injunction, and the district court

is already “satisfied” that Plaintiffs have received their ordered relief. (R.89, Release

Order, PgID 1827-28.) Thus, the district court only has an enforcement interest

under the Expanded Injunction which, as shown herein, is null and void as exceeding

the district court’s jurisdiction. Only a stay of the Expanded Injunction pending

Davis’ appeal will avoid this onerous and improper exercise of enforcement power.

In stark contrast to the threat of sanctions hanging over Davis each day she

enters her office while waiting for relief from an impartial audience in this Court on

her appeals, Plaintiffs will suffer no harm if the Expanded Injunction is stayed

pending appeal. Plaintiffs have already received the benefits of the Injunction, to the

“satisfaction” of the district court. (R.89, Release Order, PgID 1827-28.) Plaintiffs

received no additional relief from the Expanded Injunction; staying its enforcement

pending Davis’s appeal cannot harm them.

III. The public interest favors granting a stay.

No public interest is served by upholding an order exceeding a district court’s

jurisdiction. To the contrary, the public is only served by the disregard of any such

order, which is “null and void.” See Holloway, 740 F.2d at 1382.

Furthermore, the federal court supervision over Davis’ office imposed by the

Release Order, in enforcement of the Expanded Injunction, violates established

principles of federalism and comity, usurping the role of a publicly elected official


17

in the Commonwealth of Kentucky and invading the province, discretion, and affairs

of her office. It is also contrary to contempt principles, for in devising enforcement

remedies, federal courts are to “take into account the interests of state and local

authorities in managing their own affairs, consistent with the Constitution.” Milliken

v. Bradley, 433 U.S. 267, 280-81 (1977). Indeed, it is incumbent upon federal district

courts that sanctions imposed against state officials should be the “least intrusive”

remedy available. See Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984);

Spallone v. U.S., 493 U.S. 265, 276 (1990). The public is not served by the violation

of such principles for any length of time.

As shown herein, from the commencement of this case, Plaintiffs have

received procedural preferences, notwithstanding even fundamental jurisdictional

defects. Davis has received the opposite, culminating in incarceration for

conscience, and the threat of more severe sanctions under an invalid order which the

district court had no jurisdiction to enter. For all of the foregoing reasons, Davis

requests the following:


18

RELIEF REQUESTED

Appellant Kim Davis respectfully requests that this Court: (1) grant

immediate consideration and (2) enter an order staying the district court’s September

3, 2015 Expanded Injunction pending final resolution of the appeal in this Court.

DATED: September 10, 2015

Respectfully submitted:

A.C. Donahue


P.O. Box 659


(606) 677-2741

[email protected]

/s/ Roger K. Gannam

Horatio G. Mihet, Counsel of Record

Roger K. Gannam


Liberty Counsel, P.O. Box 540774


(800) 671-1776


[email protected]




I hereby certify that on this 11th day of September, 2015, I caused the

foregoing document to be filed electronically with the Court, where it is available

for viewing and downloading from the Court’s ECF system, and that such electronic

filing automatically generates a Notice of Electronic Filing constituting service of

the filed document upon the following:

William Ellis Sharp Daniel Mach

ACLU of Kentucky Heather L. Weaver

315 Guthrie Street, Suite 300 ACLU Foundation

Louisville, KY 40202 915 15th Street, NW, Suite 6th Floor

[email protected] Washington, DC 20005

[email protected]

Daniel J. Canon [email protected]

Laura E. Landenwich

Leonard Joe Dunman James D. Esseks

Clay Daniel Walton Adams, PLC Ria Tabacco Mar

462 S. Fourth Street, Suite 101 ACLU Foundation

Louisville, KY 40202 125 Broad Street, 18th Floor

[email protected] New York, NY 10004



Counsel for Appellees

William M. Lear, Jr.

Palmer G. Vance II

Stoll Keenon Ogden PLLC

300 West Vine Street, Suite 2100


[email protected]

[email protected]

Counsel for Third Party Defendants-Appellees


/s/ Roger K. Gannam

Roger K. Gannam

Liberty Counsel

P.O. Box 540774


(800) 671-1776

[email protected]



Case No. 15-5880

UNITED STATES COURT OF APPEALS for the

SIXTH CIRCUIT

APRIL MILLER, PH.D.; KAREN ANN ROBERTS; SHANTEL BURKE;

STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY;

L. AARON SKAGGS; BARRY SPARTMAN


v.

KIM DAVIS


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF KENTUCKY

APPELLEES’ RESPONSE OPPOSING MOTION TO STAY

DISTRICT COURT’S SEPTEMBER 3, 2015 INJUNCTION ORDER

Daniel J. Canon

Laura E. Landenwich

L. Joe Dunman

CLAY DANIEL WALTON & ADAMS, PLC

462 South Fourth Street, Suite 101

Louisville, KY 40202

ACLU OF KENTUCKY Cooperating

Attorneys

Daniel Mach

Heather L. Weaver

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

915 15th Street NW

Washington, DC 20005

William E. Sharp

Legal Director

ACLU OF KENTUCKY

315 Guthrie Street, Suite 300


Ria Tabacco Mar

James D. Esseks


FOUNDATION

125 Broad Street

New York, NY 10004

Counsel for Plaintiffs-Appellees


2

Pursuant to Federal Rule of Appellate Procedure 27(a)(3), Plaintiffs-

Appellees, April Miller, Karen Roberts, Shantel Burke, Stephen Napier,

Jody Fernandez, Kevin Holloway, L. Aaron Skaggs and Barry Spartman

(collectively referred to as Plaintiffs), by counsel, submit their response

opposing Defendant-Appellant Davis’ motion to stay the September 3, 2015

order modifying the District Court’s preliminary injunction ruling.

Davis has already asked three courts – the District Court, this Court,

and the United States Supreme Court – to excuse her from performing her

official duties. All three courts have declined to make an exception for

Davis. In denying Davis’ earlier motion for a stay, this Court found that

there is “little or no likelihood that the Clerk in her official capacity will

prevail on appeal” because Davis, as “the holder of the Rowan County

Clerk’s office . . . [must] act in conformity with the United States

Constitution as interpreted by a dispositive holding of the United States

Supreme Court.” [RE #28-1 (15-5880): Order, at 2.] That conclusion is not

limited to the four named Plaintiff couples, as the District Court correctly

found when it modified its August 12 preliminary injunction to enjoin Davis

from applying her “no marriage licenses” policy to other couples who are

legally eligible to marry in Kentucky. Davis’ latest attempt to avoid the

obligations of her office should likewise be denied.


3

FACTS

The parties detailed the facts of this case when they litigated

Defendant-Appellant Davis’ initial emergency motion for a stay. [See RE

#15-1 (15-5880): Emergency Motion for Immediate Consideration and

Motion to Stay District Court’s August 12, 2015 Order Pending Appeal; RE

#25 (15-5880): Appellees’ Response Opposing Motion to Stay.] Rather than

reassert those facts, Appellees incorporate by reference their earlier

statement of facts and include here only those additional facts that will aid

the Court in its resolution of Davis’ present emergency stay motion.

After this Court denied Davis’ previous stay motion, Davis sought an

emergency stay of the August 12 preliminary injunction from the Supreme

Court. [Davis v. Miller, et al., No. 15A250 (Aug. 31, 2015).] In a one-line

order, the Supreme Court denied that request without asking for a response

from Plaintiffs-Appellees and without any apparent dissent. Davis v. Miller,

No. 15A250, -- S.Ct. --, 2015 WL 5097125, at *1 (U.S. Aug. 31, 2015).

Rather than comply with the preliminary injunction ruling, however,

Davis chose to disregard it. The morning after the Supreme Court denied her

stay application, Davis directed her employees to continue enforcing her “no

marriage licenses” policy. [RE #43 (15-5880): Exhibit C to Davis’

Emergency Motion for Stay of September 3rd Injunction Order (“9/3/15


4

Hrg. Transcript”), Page ID# 1621, 1631 (Kim Davis’ testimony admitting

that she directed her deputy clerks to disregard District Court’s preliminary

injunction and Supreme Court’ denial of stay request to continue enforcing

her “no marriage licenses” policy).] That decision resulted in Plaintiffs

Miller and Roberts again being denied a marriage license on September 1,

2015. [Id. at Page ID #1638-39.] Left with no other recourse, Plaintiffs filed

a motion asking the District Court to hold Davis in contempt for her

continued refusal to comply with the August 12 preliminary injunction

ruling. [RE #67 (0:15-cv-00044): Plaintiffs’ Motion to Hold Kim Davis in

Contempt of Court, Page ID #1477.] Plaintiffs also filed a motion to clarify

or modify the preliminary injunction ruling to bar Davis from enforcing her

“no marriage licenses” policy against any eligible applicants, not just the

named plaintiffs. [RE #68 (0:15-cv-00044): Plaintiffs’ Motion Pursuant to

Rule 62(c) to Clarify the Preliminary Injunction Pending Appeal, Page ID

#1488.]

At the contempt hearing, the District Court afforded Davis’ counsel an

opportunity to respond to Plaintiffs’ Rule 62(c) motion. [RE #43 (15-5880):

9/3/15 Hrg. Transcript, Page ID# 1571-1580.] After hearing argument from

Davis’ counsel, the District Court granted Plaintiffs’ motion and entered its

September 3 Order modifying the earlier preliminary injunction. [RE #43


5

(15-5880): 9/3/15 Order, Page ID#1557.] In doing so, the District Court

noted that Plaintiffs filed this case as a class action and explained that, even

though it had stayed the class certification issue, allowing the August 12th

preliminary injunction “to apply to some, but not others, simply doesn’t

make practical sense.” [RE #43 (15-5880): 9/3/15 Hrg. Transcript, Page ID

#1581.] The District Court also noted that, after Plaintiffs here filed suit, two

related cases were filed by couples seeking to marry. [Id. at Page ID #1573.]

Those cases raise identical legal issues, and the reasoning behind the August

12 preliminary injunction applies with equal force to the plaintiff couples in

those cases. [Id. at Page ID# 1576-1577.] Thus, the District Court’s

September 3 Order modified the August 12 preliminary injunction to bar

Davis, in her official capacity, from enforcing her “no marriage licenses”

policy against any applicants who are legally eligible to marry. [Id.] While

several of the named Plaintiff couples sought and received marriage licenses

following the issuance of the September 3 Order, one couple – Shantel

Burke and Stephen Napier – has not yet done so.

Davis did not thereafter seek a stay of that ruling in the District Court.

Rather, she requested certification for an immediate appeal from the

September 3 ruling. [RE #43 (15-5880): 9/3/15 Hrg. Transcript, Page ID#

1580.] Davis then filed the present motion asking this Court for an


6

emergency stay. As further explained below, the motion for an emergency

stay should be denied because Davis has not shown that it was impracticable

to apply for a stay from the District Court, the District Court retained

jurisdiction to modify its preliminary injunction ruling on September 3,

2015, and it properly exercised that jurisdiction to give effect to its earlier

decision. For the same reasons that this Court denied Davis’ motion for a

stay of the August 12 preliminary injunction, Davis’ present motion for a

stay should be denied.

LEGAL STANDARD

In evaluating whether to grant a requested stay, courts must consider

four factors: “(1) whether the stay applicant has made a strong showing that

he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and (4)

where the public interest lies.” Ohio State Conference of N.A.A.C.P. v.

Husted, 769 F.3d 385, 387 (6th Cir. 2014) (internal quotations and citations

omitted). Of these, the “‘first two factors . . . are the most critical.’” Id.

(quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). As discussed below, all

of the factors weigh in favor of denying the requested stay.


7

ARGUMENT

I. THE STAY MOTION SHOULD BE DENIED BECAUSE

DAVIS FAILED TO REQUEST A STAY IN THE DISTRICT

COURT AND HAS NOT SHOWN THAT DOING SO WOULD

HAVE BEEN IMPRACTICABLE.

Even before reaching the relevant factors for evaluating stay requests,

Davis’ motion should be denied because she failed to first seek a stay of the

September 3 Order in the District Court. “The cardinal principle with respect

to stay applications under Rule 8 is that the relief ordinarily must first be

sought in the lower court.” Wright & Miller, 16A Federal Prac. & Proc.

§ 3954 (4th ed.). It is undisputed that Davis failed to comply with this

prerequisite to appellate review. [RE #43 (15-5880): Davis’ Motion to Stay,

11.]

An applicant is excused from this general requirement only if she can

“show that moving first in the district court would be impracticable.” Fed.

R. App. P. 8(a)(2)(A)(i). The entirety of Davis’ argument regarding the

impracticability of her seeking a stay below is limited to a single sentence in

which she cites the District Court’s “extraordinary doggedness” as a basis

for bypassing review there. [RE #43 (15-5880): Davis’ Motion to Stay, 11.]

But “doggedness” does not justify bypassing the District Court

altogether. Even if it could, Davis has not explained how. Davis’ motion

should be denied, and the District Court should be afforded the opportunity


8

to address it in the first instance. See, e.g., Baker v. Adams Cnty./Ohio Valley

Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002) (denying motion for a stay

pending appeal because the defendant failed to seek relief in the district

court); S.E.C. v. Dunlap, 253 F.3d 768, 774 (4th Cir. 2001) (same).

II. BECAUSE THE DISTRICT COURT RETAINED

JURISDICTION TO ENTER ITS SEPTEMBER 3 ORDER,

DAVIS IS UNLIKELY TO SUCCEED ON APPEAL.

Rule 62(c) of the Federal Rules of Civil Procedure provides that a

district court retains jurisdiction to modify a preliminary injunction pending

an appeal. Specifically, Rule 62(c) provides:

When an appeal is taken from an interlocutory or final

judgment granting, dissolving, or denying an injunction, the

court in its discretion may suspend, modify, restore, or grant an

injunction during the pendency of the appeal upon such terms

as to bond or otherwise as it considers proper for the security of

the rights of the adverse party.

Fed.R.Civ.P. 62(c). Thus, Rule 62(c) creates an exception to the general rule

that an appeal divests the district court of jurisdiction. N.L.R.B. v. Cincinnati

Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987) (“[T]the rule depriving a

district court of jurisdiction over matters pending on appeal ‘is neither a

creature of statute nor . . . absolute in character.’” (quoting Island Creek

Coal Sales Co. v. City of Gainesville, 764 F.2d 437 (6th Cir. 1985)).

As noted by this Court, sister circuits have variously analyzed Rule

62(c), generally applying one of two standards for determining whether a


9

particular modification is authorized by the rule. Basicomputer Corp. v.

Scott, 973 F.2d 507, 513 (6th Cir. 1992). Specifically, some circuits construe

Rule 62(c) to permit only those modifications that “preserve the status quo.”

George S. Hofmeister Family Trust v. Trans Industries of Ind., Inc., 2007

WL 128932, at *2 (E.D. Mich. 2007) (citing Coastal Corp. v. Tex. E. Corp.,

869 F.2d 817 (5th Cir. 1989); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389

(9th Cir. 1984); Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2nd Cir.

1962)). Other circuits, however, construe Rule 62(c) to permit modifications

after an appeal is filed “when the district court’s action ‘preserve[s] the

integrity of the proceeding in the court of appeals.’” Id. (quoting Ortho

Pharm. Corp. v. Amgen, Inc., 887 F.2d 460 (3rd Cir. 1989)).

While this Court has not adopted or rejected either approach,

Basicomputer, 973 F.2d at 513, the Court need not reach that question in the

present appeal because the District Court’s September 3 Order satisfies both

standards.

Under the “preserve the integrity of the proceedings” standard, the

District Court’s September 3 Order ensures that Davis, in asserting an appeal

that has “little to no likelihood of success,” will be unable to continue to

enforce her “no marriage licenses” policy against the plaintiffs in those

companion cases still pending in the District Court, or against the members


10

of the putative class. And given Davis’ established refusal to comply with

the District Court’s valid court order, the modification of the August 12

preliminary injunction is necessary to preserve the integrity of the

proceedings by avoiding the unnecessary multiplication of litigation,

including appellate litigation, that would result from her continuing to

enforce her “no marriage licenses” policy against those who are legally

eligible to marry.

Similarly, under the “maintain the status quo” standard, the District

Court properly entered its September 3 Order barring Davis, in her official

capacity, from enforcing the “no marriage licenses” policy against the name

Plaintiffs and all applicants who are otherwise eligible to marry –i.e., the

members of the putative class. The District Court’s Order simply restored

the status quo that existed prior to Davis’ adoption of the challenged (and

unlawful) “no marriage licenses” policy. And in so doing, the Order does not

undermine the ability of this Court to exercise jurisdiction over the pending

appeal –a proposed formulation for the “maintain the status quo standard.”

See S & S Sales Corp. v. Marvin Lumber & Cedar Co., 457 F. Supp. 2d 903,

906 (E.D. Wis. 2006) (“Maintaining the status quo means that a controversy

will still exist once the appeal is heard. Any action on the district court’s part

which has the effect of divesting the court of appeals of its jurisdiction over


11

the matter, by eliminating the controversy prior to the hearing on the appeal

is inappropriate.” (quoting 12 Moore’s Federal Practice § 62.06[1] (3d ed.

2006))). The question in that pending appeal will remain the same: May

Defendant-Appellant, in her official capacity, deny marriage license

applicants their fundamental right to marry and refuse compliance with

Obergefell because of her personal religious beliefs. See, e.g., Natural Res.

Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1167 (9th Cir. 2001)

(upholding order modifying injunction after notice of appeal filed because

the modifications “did not materially alter the status of the consolidated

appeal” in that “[t]hey left unchanged the core questions before the appellate

panel deciding the consolidated appeal”).

Thus, under either analytical framework, Rule 62(c) provides ample

justification (and jurisdiction) for the District Court’s September 3 Order

modifying the preliminary injunction in this case.

Davis’ argument that the District Court lacked authority to modify the

August 12 preliminary injunction because she had already appealed that

ruling ignores Rule 62(c), and the cases on which she relies fail even to

mention it. [RE #43: Davis’ Emergency Motion to Stay, 12-13 (citing

N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585 (6th Cir. 1987) (holding

that district court retained jurisdiction “to enforce and clarify” prior


12

subpoena enforcement order during appeal with no discussion of Rule

62(c)); Am Town Ctr. v. Hall 83 Associates, 912 F.2d 104 (6th Cir. 1990)

(appeal from district court order dismissing complaint divested district court

of jurisdiction to enjoin state court proceedings involving different parties

and claims with no discussion of Rule 62(c)); United States v. Michigan,

Nos. 94-2391, 95-1258, 1995 WL 469430 (6th Cir. 1995) (unpublished)

(appeal divested district court of jurisdiction to reduce the number of mental

health beds previously ordered without discussing or analyzing Rule 62(c));

Workman v. Tate, 958 F.2d 164 (6th Cir. 1992) (in habeas case, holding,

without discussing Rule 62(c), that remand solely to consider prisoner’s

request for release pending appeal did not confer jurisdiction upon district

court to amend earlier ruling granting habeas petition); United States v.

Holloway, 740 F.2d 1373 (6th Cir. 1984) (in criminal case, district court

lacked jurisdiction to consider motion under Fed. R. Crim. P. 35 to correct

sentence after appeal filed).]

Moreover, even though the District Court previously stayed the class

certification issue, the District Court was well within its authority to enjoin

Davis from enforcing her “no marriage licenses” policy to all eligible

couples, regardless of whether or not those couples are named Plaintiffs in

this case. “District courts have the power to order injunctive relief covering


13

potential class members prior to class certification” pursuant to their

‘“general equity powers.’” Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577,

at *2 (N.D. Ill. Dec. 10, 2013) (quoting 3 Newberg on Class Actions § 9:45

(4th ed. 2002)); see, e.g., Welch v. Brown, No. 12-13808, 2013 WL

3224416, at *3 (E.D. Mich. June 25, 2013) (rejecting defendant’s argument

that preliminary injunction should apply only to named plaintiffs and not

putative class members); Strouchler v. Shah, 891 F. Supp. 2d 504, 517

(S.D.N.Y. 2012) (same); Thomas v. Johnston, 557 F. Supp. 879, 916 n.29

(W.D. Tex. 1983) (“It appears to be settled . . . that a district court may, in

its discretion, award appropriate classwide injunctive relief prior to a formal

ruling on the class certification issue based upon either a conditional

certification of the class or its general equity powers.”). Broad preliminary

injunctive relief is appropriate “when activities of the defendant are directed

generally at a class of persons.” Lee, 2013 WL 6490577, at *2. That is

certainly true here, where Davis testified at the contempt hearing that she

would continue to cause irreparable harm, not only to the named Plaintiff

couples, but also to all putative class members, by refusing to comply with

the August 12 preliminary injunction. [RE #43 (15-5880): 9/3/15 Hrg.

Transcript, Page ID# 1621, 1631 (Kim Davis’ testimony admitting that she

directed her deputy clerks to disregard District Court’s preliminary


14

injunction and Supreme Court’ denial of stay request to continue enforcing

her “no marriage licenses” policy).] The District Court was not required to

“ignore the alleged harm to putative class members” simply because it had

not yet certified a class. Strouchler, 891 F. Supp. 2d at 517.1

Indeed, “‘[i]n the civil rights field, it is common to find an immediate

need for preliminary injunctive relief . . . without a formal class ruling.’” Ill.

League of Advocates for Developmentally Disabled v. Ill. Dep’t of Human

Servs., No. 13 C 1300, 2013 WL 3287145, at *3 (N.D. Ill. June 28, 2013)

(quoting 3 Newberg on Class Actions § 9:45). Federal district courts thus

routinely enjoin state officials from enforcing unconstitutional policies

across the board, even where class certification has not been sought. See,

e.g., Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 WL

3634834, at *5 (D. Colo. July 23, 2014) (granting preliminary injunction

enjoining state officials from denying marriage licenses to same-sex couples,

or denying recognition of otherwise valid out-of-state marriages entered into

by same-sex couples, not only to named plaintiff couples); De Leon v. Perry,

975 F. Supp. 2d 632, 666 (W.D. Tex. 2014) (same); see also Evans v. Utah,

21 F. Supp. 3d 1192, 1215 (D. Utah 2014) (granting preliminary injunction

1 In addition, because the District Court has multiple similar cases on its

docket, “the interest of efficiency and economy compel entry” of class-wide Footnote continued on next page


15

enjoining state officials from applying state’s marriage bans retroactively to

same-sex couples, not only to named plaintiff couples).

III. DENYING THE REQUESTED STAY WOULD NOT RESULT

IN IRREPARABLE INJURY TO DEFENDANT.

As before, denying Davis’ requested stay will not result in irreparable

harm to her. To the extent that Davis is facing potential contempt sanctions,

any “harm” results from her own choice to disobey federal courts orders, not

from the orders themselves. In any event, the threat of contempt for willful

violations of the District Court’s valid orders is not “irreparable injury” that

would justify a stay.

The issue on a motion for a stay is whether compliance with the

order sought to be stayed would result in irreparable injury, not

whether sanctions imposed for a contempt of court would cause

irreparable injury. . . . It would surely be anomalous to permit

the contumacious appellant to satisfy the irreparable injury

component by pointing to the consequences of his own

contempt . . . .

In re Frankel, 192 B.R. 623, 630 (Bankr. S.D.N.Y. 1996) (emphasis added).

See also Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468,

1480 (9th Cir. 1992) (“It is well established that even the assertion of

constitutional rights may be burdened by requiring those who assert them to

risk contempt.”).

Footnote continued from previous page

preliminary injunctive relief at this stage. Cf. Lee, 2013 WL 6490577, at *2.


16

IV. A STAY, IF GRANTED, WOULD RESULT IN ONGOING,

IRREPARABLE HARM TO MEMBERS OF THE PUTATIVE

CLASS.

If the District Court’s September 3 Order were stayed, Defendant

Davis’ policy of refusing to issue licenses to qualified applicants –i.e.,

members of the putative class of plaintiffs –would directly and substantially

burden their fundamental right to marry, in that it would preclude them from

obtaining marriage licenses in Rowan County even though such licenses are

a legal prerequisite for marriage in Kentucky. KRS § 402.080. As previously

noted, the Rowan County Clerk’s office issued approximately two hundred

marriage licenses per year prior to the Obergefell decision thus enabling

roughly four hundred people, annually, to exercise their fundamental right to

marry. [RE #26 (15-5880): 7/20/15 Hrg. Transcript, Page ID #243 (212

licenses issued in 2014); id. (99 licenses issued in first half of 2015).] If the

requested stay were granted, no one would be permitted to obtain a marriage

license in Rowan County during the pendency of Davis’ appeal even though

this Court has previously concluded that “[t]here is thus little or no

likelihood that the Clerk in her official capacity will prevail on appeal.” [RE

#28-1 (15-5880): Order.]


17

IV. THE PUBLIC INTEREST FAVORS DENYING THE

REQUESTED STAY.

The public has an interest in treating all families equally under the

Constitution. Cf. Latta v. Otter, 771 F.3d 496 (9th Cir. 2014) (“The public’s

interest in equality of treatment of persons deprived from important

constitutional rights . . . also supports dissolution of the stay of the district

court’s order.”). The public interest thus also supports denying the requested

stay and allowing the District Court’s September 3 ruling modifying the

preliminary injunction to take effect.

Federalism does not compel a different result. Enjoining a public

official, in her official capacity, from committing future violations of others’

federally protected rights is perfectly compatible with notions of federalism

and comity because “the availability of prospective relief of the sort awarded

in Ex parte Young gives life to the Supremacy Clause.” Green v. Mansour,

474 U.S. 64, 68 (1985).

CONCLUSION

Because all of the relevant factors weigh in favor of denying the

requested stay, including that Davis is unlikely to succeed on the merits of

her appeal and that she will not suffer a legally cognizable irreparable injury

if the stay were denied, Plaintiffs respectfully request that the motion for a

stay be denied.


18

Respectfully submitted,

/s/ William E. Sharp

Daniel J. Canon

Laura E. Landenwich

L. Joe Dunman

CLAY DANIEL WALTON & ADAMS, PLC

462 South Fourth Street

Suite 101


(502) 561-2005

ACLU OF KENTUCKY Cooperating

Attorneys

[email protected]

[email protected]

[email protected]

Daniel Mach

Heather L. Weaver


FOUNDATION

915 15th Street NW

Washington, DC 20005

(202) 675-2330

[email protected]

William E. Sharp

Legal Director

ACLU OF KENTUCKY



(502) 581-9746

[email protected]

Ria Tabacco Mar

James D. Esseks


FOUNDATION

125 Broad Street

New York, NY 1004

(212) 549-2627

[email protected]

[email protected]

Counsel for Plaintiffs-Appellees



I hereby certify that I caused a true and correct copy of

APPELLEES’ RESPONSE OPPOSING MOTION TO STAY

DISTRICT COURT’S SEPTEMBER 3, 2015 INJUNCTION ORDER to

be served September 15, 2015, by operation of this Court’s electronic filing

system, on the following:


Horatio G. Mihet

Roger Gannam

Liberty Counsel

PO Box 540774

Orlando. FL 32854

[email protected]

[email protected]

[email protected]

A.C. Donahue

DONAHUE LAW GROUP, P.S.C.

P.O. Box 659

Somerset, KY 42502

[email protected]

Counsel for Kim Davis

/s/ William E. Sharp

William E. Sharp

ACLU OF KENTUCKY



(502) 581-9746

[email protected]



Case No. 15-5880

IN THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APRIL MILLER, PH.D., KAREN ANN ROBERTS, SHANTEL BURKE,STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY,

L. AARON SKAGGS, and BARRY W. SPARTMANPlaintiffs/Appellees

v.

KIM DAVIS, INDIVIDUALLYThird-Party Plaintiff/Defendant/Appellant

v.

STEVEN L. BESHEAR and WAYNE ONKST,IN THEIR OFFICIAL CAPACITIES

Third-Party Defendants/Appellees

Appeal fromUnited States District Court for the Eastern District of Kentucky

Case No. 15-cv-044-DLBHonorable David L. Bunning, Presiding

RESPONSE TO EMERGENCY MOTION FOR IMMEDIATECONSIDERATION AND MOTION TO STAY DISTRICT COURT’S

SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL [DE 43]

WILLIAM M. LEAR, JR.PALMER G. VANCE IISTOLL KEENON OGDEN PLLC300 West Vine Street, Suite 2100Lexington, Kentucky 40507Counsel for Steven L. Beshear and WayneOnkst in their Official Capacities

September 15, 2015


1

Come the appellees Steven L. Beshear, in his official capacity as Governor

of Kentucky, and Wayne Onkst, in his official capacity as State Librarian and

Commissioner of Kentucky Department for Libraries and Archives (collectively

“State Appellees”), by counsel, and pursuant to the briefing letter of September 11,

2015, respectfully tender their response in opposition to the Emergency Motion for

Immediate Consideration and Motion to Stay District Court’s September 3, 2015

Injunction Order Pending Appeal (the “Motion”) [DE 43] of the appellant Kim

Davis. To the extent the Motion involves the State Appellees, it must be denied

because Davis’ claims against the State Appellees must be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

This Motion is the latest in Appellant Kim Davis’ (“Davis”) ongoing efforts

to avoid compliance with Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Davis is

the elected Clerk of Rowan County, Kentucky, and, along with her deputy clerks,

is responsible for issuing marriage licenses to qualified couples. See KRS Ch. 402.

Following Obergefell, Davis’ office stopped issuing marriage licenses because she

contends that issuing licenses to same-sex couples violates her rights to free

exercise of religion, free speech, and to be free from religious tests for holding

office. [See, e.g. DE 29, Davis Response to Motion for Preliminary Injunction,

Page ID 318-646]. Plaintiffs/Appellees (“Plaintiffs”) are a group of same-sex and

opposite-sex couples residing in Rowan County who brought suit against Davis for


2

unlawfully restricting exercise of their fundamental right of marriage. [DE 1,

Complaint, Page ID 1].

The District Court entered a preliminary injunction that enjoins Davis in her

official capacity from applying her “no marriage licenses” policy. [DE 43,

Memorandum Opinion and Order (“Preliminary Injunction”), Page ID 1146-73].

The District Court thoughtfully analyzed each of Davis’ constitutional arguments

and found each to be without merit. [Id. at 16-28, Page ID 1161-73]. Davis filed

this interlocutory appeal from the Preliminary Injunction. [DE 44, Notice of

Appeal, Page ID 1174]. The District Court thereafter clarified the scope of the

Preliminary Injunction, finding that Davis is enjoined from applying her “no

marriage licenses” policy not just to the Plaintiffs but to all qualified couples. [DE

74, Order (“Clarified Injunction”), Page ID 1557]. Davis has now appealed from

that Order as well. [DE 82, Amended Notice of Appeal, Page ID 1785].1

This Court previously denied Davis’ request for a stay of the Preliminary

Injunction pending appeal, finding that her position “cannot be defensibly argued”

and that “[t]here is thus little or no likelihood” of success on appeal. [DE 28 at 3].

1 Davis willfully defied the Preliminary Injunction and Clarified Injunction byrefusing to issue marriage licenses to qualified couples. [DE 67, Motion forContempt, Page ID 1477-87]. The District Court found Davis to be in contemptand remanded her to federal custody. [DE 75, Order, Page ID 1558-59]. TheDistrict Court released Davis from custody after finding that Davis’ deputy clerkswould issue licenses and directing Davis not to interfere in their issuance. [DE 96,Order, Page ID 1899].


3

The United States Supreme Court likewise denied Davis’ request for a stay of the

Preliminary Injunction. [DE 30].

The present Motion now seeks the same relief as to the Clarified Injunction

– a stay pending appeal. Davis states that the latest stay is sought not because of

her constitutional objections to issuing same-sex marriage licenses but “only the

issue of the district court’s acting without jurisdiction” to enter the Clarified

Inunction. [Motion at 2].

In an apparent attempt to shift blame for her refusal to follow the law, Davis

impleaded the State Appellees by Third-Party Complaint. [DE 34, Third-Party

Complaint, Page ID 745-92]. Davis alleges that “Kentucky’s marriage policies, as

effected by Governor Beshear and Commissioner Onkst” are unlawful, and she

seeks declaratory and injunctive relief from these policies. [Id. at ¶¶ 46-147].

Davis contends that “Kentucky marriage policies” violate her rights of free

exercise of religion, free speech, and constitute an unlawful religious test for

holding office. [Id.]. Notably, these are the same constitutional allegations raised

as defenses to Plaintiffs’ claims and rejected by the District Court and this Court.

State Appellees have moved to dismiss the Third-Party Complaint on

numerous grounds, including Eleventh Amendment immunity, lack of standing,

and failure to state a claim upon which relief can be granted. [DE 92, Motion to

Dismiss Third-Party Complaint, Page ID 1845]. State Appellees’ motion is


4

pending with the District Court. The District Court recently denied Davis’ request

for an injunction against the State Appellees. [DE 103, Memorandum Order, Page

ID 2175-80]. The present Motion is likewise without merit and should be denied.

II. ARGUMENT

To the extent Davis’ Motion affects the State Appellees, it must be denied.2

The State Appellees are entitled to dismissal of claims against them in the District

Court, and consequently should not be parties to this appeal. As noted above, the

State Appellees timely moved to dismiss the Third-Party Complaint and that

motion is currently pending. [DE 92, Motion to Dismiss Third-Party Complaint,

Page ID 1845].

State Appellees are entitled to a ruling on their Motion to Dismiss before this

Court considers Davis’ present motion both because it would be dispositive of all

claims against the State Appellees and because Eleventh Amendment immunity

has been raised. See, e.g. Pearson v. Callahan, 555 U.S. 223, 232 (2009)

(immunity must be resolved “at the earliest possible stage in litigation”). The State

Appellees’ arguments are more fully set forth in their Motion to Dismiss Third-

Party Complaint, which is incorporated herein by reference. Because the State

2 Neither this appeal nor the present Motion appears to raise issues that actuallyinvolve the State Appellees. Yet, Davis has named State Appellees as parties tothe appeal.


5

Appellees are entitled to dismissal of Davis’ claims against them, the Motion must

be denied.

III. CONCLUSION

For the reasons set forth above, the State Appellees respectfully request

entry of an Order denying Davis’ Emergency Motion for Immediate Consideration

and Motion to Stay District Court’s September 3, 2015 Injunction Order Pending

Appeal [DE 43].

Respectfully submitted,

STOLL KEENON OGDEN PLLC300 West Vine Street, Suite 2100Lexington, Kentucky 40507-1380(859) 231-3000(859) 253-1093 facsimile

By: /s/ Palmer G. Vance IIWilliam M. Lear, Jr.Palmer G. Vance II

Counsel for Appellees GovernorSteven L. Beshear and CommissionerWayne Onkst in their Official Capacities


6

CERTIFICATE OF SERVICEI hereby certify that I have filed the foregoing with the Court’s ECF system

on the 15th day of September 2015, which simultaneously serves a copy to thefollowing via electronic mail:

Daniel J. CanonLaura E. LandenwichLeonard Joe DunmanCLAY DANIEL WALTON ADAMS, [email protected]@[email protected] FOR PLAINTIFFS

William Ellis SharpACLU OF [email protected] FOR PLAINTIFFS

James D. EsseksRia Tabacco MarDaniel MachHeather WeaverAMERICAN CIVIL LIBERTIES [email protected]@[email protected]@aclu.orgCOUNSEL FOR PLAINTIFFS

Anthony Charles DonahueDONAHUE LAW GROUP, [email protected] FOR KIM DAVIS


7

Mathew D. StaverHoratio G. MihetRoger K. GannamJonathan D. ChristmanLIBERTY [email protected]@[email protected]@lc.orgCOUNSEL FOR KIM DAVIS

/s/ Palmer G. Vance IICounsel for Appellees GovernorSteven L. Beshear and CommissionerWayne Onkst in their Official Capacities

119363.152876/4428555.5



No. 15-5880

__________________________

IN THE UNITED STATES COURT OF APPEALS


__________________________

APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE;

STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON

SKAGGS; and BARRY SPARTMAN,


v.

KIM DAVIS, Individually,


__________________________

On Appeal From The United States District Court

For The Eastern District of Kentucky

In Case No. 15-cv-00044 Before The Honorable David L. Bunning

__________________________

APPELLANT KIM DAVIS’ REPLY IN SUPPORT OF EMERGENCY

MOTION TO STAY DISTRICT COURT’S SEPTEMBER 3, 2015

INJUNCTION ORDER PENDING APPEAL

__________________________

A.C. Donahue Mathew D. Staver, Counsel of Record

DONAHUE LAW GROUP, P.S.C. Horatio G. Mihet

P.O. Box 659 Roger K. Gannam

Somerset, Kentucky 42502 Jonathan D. Christman

(606) 677-2741 LIBERTY COUNSEL

[email protected] P.O. Box 540774


(800) 671-1776


[email protected] / [email protected]



1

Appellant Kim Davis (“Davis”) hereby submits this Reply in support of her

motion for a stay pending appeal of the district court’s September 3, 2015 injunction

order (hereinafter, the “Expanded Injunction”).

INTRODUCTION

In opposing a stay of the Expanded Injunction pending appeal, Plaintiffs do

not dispute, nor can they, any of the following facts: (1) Plaintiffs did not originally

request a class-wide injunction, choosing instead to seek relief only for the “Named

Plaintiffs” specifically; (2) the district court did not originally grant a class-wide

injunction, instead granting precisely (and only) what Plaintiffs requested; (3)

Plaintiffs did not oppose a stay of class-based proceedings after the original

injunction was already on appeal to this Court; (4) the district court granted the

Expanded Injunction without notice and without allowing Davis the opportunity to

submit any written opposition; and, (5) the district court expressly acknowledged

that the Expanded Injunction was relief that Plaintiffs “did not request” in the

“original motion” for a preliminary injunction. Additionally, Plaintiffs fail to bring

to this Court’s attention the district court’s most recent confirmation from five days

ago that its September 3, 2015 order undeniably “expanded its ruling” already on

appeal to this Court. (R.103, Sept. 11, 2015 Order, PgID 2177 (emphasis added).)1

1 This September 11, 2015 order denying a motion for injunction pending

appeal was entered by the district court after Davis filed her Emergency Motion to


2

To its credit, the district court has been consistent and unmistakably clear in

what it did in granting the Expanded Injunction—but it simply had no jurisdiction

to do it when it did. Rather than conceding the district court’s plain error in light of

the undisputed facts, the district court’s own statements, and binding precedent from

this Court, Plaintiffs engage in revisionist history, hollow distraction, willful

omission of the district court’s most recent statements directly on point, and pure

speculation in hopes that this Court will similarly ignore basic principles of

jurisdiction and due process. Simply put, Davis’ appeal of the August 12, 2015

injunction deprived the district court of any jurisdiction to alter or expand that

injunction. Intervention by this Court is therefore necessary to stay the Expanded

Injunction.

REPLY ARGUMENT

I. Obtaining A Stay Of The Expanded Injunction From The District Court

Is Impracticable.

Contrary to Plaintiffs’ suggestion, the record in this case demonstrates that

moving for a stay of the Expanded Injunction in the district court would be

impracticable. This conclusion is not based upon a “single sentence” in the Motion,

see Pls.’ Resp., at 7, but rather, the obvious deduction of the circumstances

Stay the September 3, 2015 Injunction Order Pending Appeal (hereinafter,

“Motion”) in this Court. Otherwise, Davis would have cited it in her Motion.


3

surrounding, and specific directives provided by, the district court when it granted

the Expanded Injunction at the September 3, 2015 contempt hearing.

As set forth previously, the district court took up Plaintiffs’ motion to “clarify”

just 48 hours after it was filed, at the beginning of a hearing noticed only for a

contempt motion on the district court’s original and limited injunction, and without

giving Davis an opportunity to submit a written opposition. Over against counsel’s

objections to the lack of notice, due process, and jurisdiction to expand the injunction

on appeal, the district court nonetheless granted the Expanded Injunction and flatly

stated that “We’ll just include that as part of the appeal. . . And the Sixth Circuit

can certainly decide if that’s appropriate.” (R.78, Contempt Hr’g, PgID 1580-81

(emphasis added).) The message from the district court was self-evident: if Davis

does not like it, she can take it up with this Court. As such, the ordinary course of

first filing a motion for a stay of an order in the district court is unnecessary here.2

2 The cases cited by Plaintiffs do not compel a different result. In Baker v.

Adams Cnty., 310 F.3d 927, 931 (6th Cir. 2002), the party seeking a stay in that case

sought relief in this Court that would require “significant judicial oversight” by a

court without first proposing such relief in the district court. In S.E.C. v. Dunlap,

253 F.3d 768, 774 (4th Cir. 2001), the party seeking a stay failed to timely appeal

the order at issue and then later sought to intervene in the appeal and seek a stay

from the appellate court rather than the district court. Here, staying the Expanded

Injunction requires no ongoing oversight, Davis timely appealed the Expanded

Injunction, and the district court unambiguously punted the matter to this Court.


4

II. Davis Has A Strong Likelihood Of Success On The Merits Of Her Appeal

Of The “Expanded” (In The District Court’s Own Words) Injunction.

The district court agrees that it “expanded” its preliminary injunction while it

was on appeal to this Court. In granting the Expanded Injunction, the district court

explicitly recognized that the so-called “clarification” sought by Plaintiffs was, in

fact, to add relief to the Injunction which was not sought by Plaintiffs in their motion

for preliminary injunction. (R.78, Contempt Hr’g, PgID 1578:20-25 (“I recognize

they did not request it in the original motion.” (emphasis added)).) Even more

recently, four days before Plaintiffs filed their opposition in this Court, the district

court expressly acknowledged, again, its expansion of the injunction: “On

September 3, 2015, the Court granted Plaintiffs’ Motion Pursuant to Rule 62(c) to

Clarify the Preliminary Injunction Pending Appeal and expanded its ruling to

include other individuals who are legally eligible to marry in Kentucky. (Docs. #68

and 74).” (R.103, Sept. 11, 2015 Order, PgID 2177 (emphasis added).)

Under well-established Sixth Circuit precedent, the district court had no

jurisdiction to expand its injunction that was already on appeal to this Court.3 This

3 See, e.g., City of Cookeville, Tenn. v. Upper Cumberland Elec. Membership

Corp., 484 F.3d 380, 388, 394 (6th Cir. 2007) (“The district court did not have

jurisdiction to issue the injunction because the injunction sought to expand the

district court's previous order.”) (emphasis added); N.L.R.B. v. Cincinnati Bronze,

Inc., 829 F.2d 585, 588 (6th Cir. 1987); Am. Town Ctr. v. Hall 83 Assocs., 912 F.2d

104, 110-11 (6th Cir. 1990).


5

Court has drawn a crucial distinction between expansion (or enlargement) of orders,

including injunctions, and enforcement of them. See Cookeville, 484 F.3d at 394

(citing Am. Town Ctr., 912 F.2d at 110). Thus, nothing in Federal Rule of Civil

Procedure 62(c)4 permits an expansion or enlargement of an injunction order on

appeal to this Court. In this matter, the district court did not “modify” its original

injunction—instead, by its own words, it significantly “expanded” the injunction and

provided relief that Plaintiffs did not originally request. As such, the cases cited by

Plaintiffs as authority for modifying an injunction are inapplicable.

Moreover, modifications of injunction orders on appeal to allegedly preserve

a “status quo” are limited to maintaining the status quo “between the parties” to the

injunction on appeal, not non-parties. See, e.g., George S. Hofmeister Family Trust

v. Trans Indus. of Ind., No. 06-13984, 2007 WL 128932, at *2 (E.D. Mich. 2007).

The district court cannot “alter the status of the case as it rests before the court of

appeals.” Coastal Corp. v. Tex. E. Corp., 869 F.2d 817, 820 (5th Cir. 1989). Further,

Plaintiffs’ unfounded reference to “plaintiffs” in “companion cases” who will

allegedly be unable to obtain marriage licenses if this Court stays the Expanded

4 In their opposition, Plaintiffs do not quote the correct language of Rule 62(c),

as it currently exists in the Federal Rules of Civil Procedure. See Pls.’ Resp., at 8. In

relevant part, the rule actually provides that “While an appeal is pending from an

interlocutory order or final judgment that grants, dissolves, or denies an injunction,

the court may suspend, modify, restore, or grant an injunction on terms for bond or

other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c).


6

Injunction is either woefully uninformed (at best) or intentionally misleading and

disingenuous to this Court, for it is widely reported that those very plaintiffs obtained

marriage licenses on the same day as the Plaintiffs here (R.78, Status Report, PgID

1798).5 Plaintiffs’ further speculation and hearsay-laden rhetoric about other persons

is also unsupported, and irrelevant to the district court’s lack of jurisdiction.

Additionally, the district court was not attempting to “preserve the integrity

of the proceedings” in this Court. See Pls.’ Resp., at 10. To the contrary, the district

court acknowledged it was granting new relief not previously requested by Plaintiffs

and doing what it deemed to “make practical sense”—a makeshift standard that

directly contravenes well-established precedent. Jurisdiction is not a results-oriented

analysis, as Plaintiffs’ misplaced arguments and the district court’s conclusion

suggest. Nor is it determined by pragmatism. To the contrary, like service of process

(which the district court described as “road blocks to getting to the merits,” R.21,

5 Plaintiffs and the district court are presumably referring to the cases of David

Ermold, et al. v. Kim Davis, et al., No. 15-cv-00046-DLB, and James Yates, et al. v.

Kim Davis, et al., No. 15-cv-00062-DLB, both of which are also pending in the

United States District Court for the Eastern District of Kentucky. The named

Plaintiffs in those cases have secured marriage licenses not authorized by Davis. See,

e.g., Marriage Licenses Issued in Kentucky, but Debate Continues, N.Y. TIMES,

Sept. 4, 2015, available at http://www.nytimes.com/2015/09/05/us/kim-davis-same-

sex-marriage.html?_r=0 (last accessed Sept. 16, 2015); David Ermold and David

Moore finally issued marriage license, DAILYMAIL.COM, Sept. 4, 2015, available at

http://www.dailymail.co.uk/video/news/video-1212676/David-Ermold-David-

Moore-finally-issued-marriage-license.html (last accessed Sept. 16, 2015).


7

Prelim. Inj. Hr’g Tr. July 13, 2015, PgID 117:1-119:7), jurisdiction is foundational

to the rule of law and preliminary to a federal court’s authority to render lawful

decisions. Without it, a federal court order is null and void. As such, what actually

challenges the integrity of the proceedings in this case is the Expanded Injunction,

which the district court had no authority to enter, and which should therefore be

stayed.

Furthermore, in this matter, it is of no consequence whatsoever that a district

court can grant class-wide injunctive relief before certifying a class. It is likewise of

no consequence that some district courts have granted injunctive relief that benefits

a purported class of persons even without a pending class action complaint.6 The

cases cited by Plaintiffs as the purported authority for the district court’s Expanded

Injunction involve a district court power to enter an original injunction, rather than

6 The cases of Lee v. Orr, No. 13-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec.

10, 2013), Strouchler v. Shah, 891 F. Supp. 2d 504, 517 (S.D.N.Y. 2012), Thomas

v. Johnston, 557 F. Supp. 879, 916 n.29 (W.D. Tex. 1983), Welch v. Brown, No. 12-

13808, 2013 WL 3224416, at *3 (E.D. Mich. June 25, 2013), Ill. League of

Advocates for Developmentally Disabled v. Ill. Dep’t of Human Servs., No. 13-1300,

2013 WL 3287145, at *3 (N.D. Ill. June 28, 2013), Burns v. Hickenlooper, No. 14-

1817, 2014 WL 3634834, at *5 (D. Colo. July 23, 2014), De Leon v. Perry, 975 F.

Supp. 2d 632, 666 (W.D. Tex. 2014), and Evans v. Utah, 21 F. Supp. 3d 1192, 1215

(D. Utah 2014), are therefore easily distinguished. Unlike this matter, the foregoing

cases relied upon by Plaintiffs all involve injunctions entered where a motion for

injunctive relief was specifically sought on behalf of both named plaintiffs and

those similarly situated and/or the original injunction order entered by the

district court specifically granted class-based relief. Neither of these critical

factual predicates exist in this case.


8

its power to expand injunctions after they have been appealed and after the district

court has been divested of its jurisdiction. Indeed, the critical, and only, inquiry that

matters here is what the district court granted in its original injunction before that

order was appealed to this Court, and before that appeal deprived the district court

of jurisdiction to expand or enlarge that injunction. And “what” the district court

ordered in this case in its original August 12, 2015 injunction is undisputed: an

injunction limited exclusively to the named Plaintiffs in this case. (R.78, Contempt

Hr’g, PgID 1578:20-25; R.103, Sept. 11, 2015 Order, PgID 2177.) Accordingly,

what the Plaintiffs could have requested in their original injunction, and what the

district court could have ordered prior to the appeal of that injunction, are misplaced

inquiries that are inconsequential and have no bearing on jurisdiction.

III. The Remaining Factors Also Favor Staying A District Court Order That

Is Null And Void.

Because the likelihood of success on Davis’ appeal of the Expanded

Injunction is clear based upon the district court’s lack of jurisdiction, this Court need

not even make specific findings on the other factors weighed in granting a stay since

“fewer factors” are dispositive. See Six Clinics Holding Corp., II v. Cafcomp Sys.,

Inc., 119 F.3d 393, 399 (6th Cir. 1997). Nevertheless, the remaining factors provide

additional support for granting a stay of the Expanded Injunction.


9

Because orders exceeding a district court’s jurisdiction are “null and void,”

U.S. v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984), no public interest is served

by upholding the district court’s Expanded Injunction. The filing of a notice of

appeal is a point of “jurisdictional significance,” conferring jurisdiction on this Court

and divesting the district court of same. Griggs v. Provident Consumer Discount

Co., 459 U.S. 56, 58 (1982). To permit the district court to grant the Expanded

Injunction sets a dangerous and harmful precedent for parties challenging by right

injunction orders in this Court. Such persons (like Davis) could be subjected to

competing obligations and onerous burdens for exercising their appellate rights, with

potentially grave (and escalating) consequences.

Those consequences to Davis are real in this case. The district court has

already found Davis in contempt for allegedly violating the district court’s original

August 12, 2015 injunction order, and incarcerated Davis for six days as a sanction

for the purported contempt. This immeasurable harm and loss of freedom, coupled

with the district court’s ominous threats in its September 8, 2015 release order—

stating that any interference with the issuance of marriage licenses “to all legally

eligible couples” will “be considered a violation of this Order and appropriate

sanctions will be considered” (R.89, Release Order, PgID 1828)—demonstrate that,

according to the district court, any violation of its Expanded Injunction (rather than

its original injunction), will be cause for further contempt proceedings. Such threats


10

hold Davis hostage on an order the district court had no lawful jurisdiction to

entertain, let alone authority to enter.

RELIEF REQUESTED

For the reasons set forth above and in prior briefing, Appellant Kim Davis

respectfully requests that this Court: (1) grant immediate consideration and (2) enter

an order staying the district court’s September 3, 2015 Expanded Injunction pending

final resolution of the appeal in this Court.


A.C. Donahue


P.O. Box 659


(606) 677-2741

[email protected]


Mathew D. Staver, Counsel of Record

Horatio G. Mihet

Roger K. Gannam


Liberty Counsel, P.O. Box 540774


(800) 671-1776


[email protected] / [email protected]




I hereby certify that on this 16th day of September, 2015, I caused the

foregoing document to be filed electronically with the Court, where it is available

for viewing and downloading from the Court’s ECF system, and that such electronic

filing automatically generates a Notice of Electronic Filing constituting service of

the filed document upon the following:

William Ellis Sharp Daniel Mach

ACLU of Kentucky Heather L. Weaver

315 Guthrie Street, Suite 300 ACLU Foundation

Louisville, KY 40202 915 15th Street, NW, Suite 6th Floor

[email protected] Washington, DC 20005

[email protected]

Daniel J. Canon [email protected]

Laura E. Landenwich

Leonard Joe Dunman James D. Esseks

Clay Daniel Walton Adams, PLC Ria Tabacco Mar

462 S. Fourth Street, Suite 101 ACLU Foundation

Louisville, KY 40202 125 Broad Street, 18th Floor

[email protected] New York, NY 10004



Counsel for Appellees

William M. Lear, Jr.

Palmer G. Vance II

Stoll Keenon Ogden PLLC

300 West Vine Street, Suite 2100


[email protected]

[email protected]

Counsel for Third Party Defendants-Appellees




Liberty Counsel

P.O. Box 540774


(800) 671-1776

[email protected]



No. 15-5880

UNITED STATES COURT OF APPEALS


APRIL MILLER, et al.,


v.

KIM DAVIS, in her individual and official capacity

as Rowan County Clerk,

Defendant-Appellant,

v.

STEVEN L. BESHEAR, in his official capacity as

Governor of Ky.; WAYNE ONKST, in his official

capacity as State Librarian and Commissioner,

Kentucky Department of Libraries and Archives,

Third Party Defendants-Appellees.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

O R D E R

Before: KEITH, ROGERS, and DONALD, Circuit Judges.

Defendant Kim Davis is before this court seeking review of a preliminary injunction

entered on August 12, 2015, enjoining her, in her official capacity, “from applying her ‘no

marriage licenses’ policy to future marriage license requests submitted by the Plaintiffs.” She

also appeals the September 3, 2015 order modifying the preliminary injunction to enjoin her

from applying her no-marriage-license policy to future marriage license requests submitted by

individuals who are eligible to marry in Kentucky. On August 28, 2015, we denied Davis’s

Case: 15-5880 Document: 50-1 Filed: 09/17/2015 Page: 1 (1 of 5)Case: 0:15-cv-00044-DLB Doc #: 113-6 Filed: 09/18/15 Page: 2 of 6 - Page ID#: 2286

No. 15-5880

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motion for a stay of the August 12 preliminary injunction pending appeal. She now moves for a

stay pending appeal of the September 3 preliminary injunction. The plaintiffs and the third-party

defendants oppose the motion for a stay.

Davis has not sought a stay pending appeal in the district court as required by Federal

Rule of Appellate Procedure 8(a)(1). Davis argues that it would be impracticable to seek a stay

pending appeal because of the “extraordinary doggedness of the district court to expand the

Injunction, without jurisdiction or fair notice and opportunity to be heard.” This is not valid

reason to excuse moving the district court for a stay pending appeal in the context of this case.

Davis’s motion for a stay of the September 3 preliminary injunction pending appeal is

DENIED for failure to comply with Rule 8(a)(1).

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk


UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Deborah S. Hunt Clerk

100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988 Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: September 17, 2015

Mr. Daniel J. Canon Law Offices 462 S. Fourth Street Suite 1730 Louisville, KY 40202 Mr. Jonathan D. Christman Liberty Counsel P.O. Box 540774 Orlando, FL 32854 Mr. Anthony Charles Donahue Donahue Law Group P.O. Box 659 Somerset, KY 42502-0659 Mr. Leonard Joe Dunman Clay, Daniel, Walton & Adams 462 S. Fourth Street Suite 101 Louisville, KY 40202 Mr. James D. Esseks ACLU 125 Broad Street 18th Floor New York, NY 10004 Mr. Roger K. Gannam Liberty Counsel P.O. Box 540774 Orlando, FL 32854


Mr. Lawrence John Joseph Law Office 1250 Connecticut Avenue Suite 200 Washington, DC 20036 Ms. Laura E. Landenwich Clay, Daniel, Walton & Adams 462 S. Fourth Street Suite 101 Louisville, KY 40202 Mr. William M. Lear Jr. Stoll Keenon Ogden 300 W. Vine Street Suite 2100 Lexington, KY 40507 Mr. Daniel Mach American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005 Mr. Horatio Gabriel Mihet Liberty Counsel 1053 Maitland Center Commons Second Floor Maitland, FL 32751 Mr. William E. Sharp American Civil Liberties Union of Kentucky General Counsel 315 Guthrie Street Suite 300 Louisville, KY 40202 Mr. Mathew D. Staver Liberty Counsel P.O. Box 540774 Orlando, FL 32854 Ms. Ria Tabacco Mar ACLU 125 Broad Street 18th Floor


New York, NY 10004 Mr. Palmer G. Vance II Stoll Keenon Ogden 300 W. Vine Street Suite 2100 Lexington, KY 40507 Ms. Heather L. Weaver American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005

Re: Case No. 15-5880, April Miller, et al v. Kim Davis Originating Case No. : 0:15-cv-00044

Dear Counsel,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Michelle M. Davis Case Manager Direct Dial No. 513-564-7025

cc: Mr. Robert R. Carr Enclosure




ASHLAND DIVISION


Plaintiffs,

v.

KIM DAVIS, ET AL.,

Defendants.

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CIVIL ACTION

0:15-CV-00044-DLB

DISTRICT JUDGE

DAVID L. BUNNING

KIM DAVIS,


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[PROPOSED] ORDER

This Court, having reviewed Defendant/Third-Party Plaintiff Kim Davis’ Emergency

Motion for Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order

Pending Appeal, the prior briefing on this same Motion in the Sixth Circuit, and for good cause

shown, GRANTS Kim Davis’ Motion to Stay September 3, 2015 Injunction Order Pending

Appeal.


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IT IS HEREBY ORDERED that the September 3, 2015 Injunction Order entered by this

Court is stayed pending resolution of the merits of Davis’ appeal of that order to the Sixth Circuit.

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HON. DAVID L. BUNNING

DISTRICT JUDGE


UNITED STATES DISTRICT COURT FOR THE …files.eqcf.org/.../113-Davis-Motion-for-Stay-expanded-injunction-.pdfemergency motion for immediate consideration and motion to stay september

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