base number one seven six one one nine one seven six two three three david m all at all vs came david's case number one seven six one two zero one seven six two two six james  good morning the morning may please the court recognize we have the appeal and we have the cross appeal but we would prefer that they be argued together i'm not going to do it separately like i have arguments on the appeal than separate arguments on the cross appeal so argue th against kim davis because she acted for the state in performing her marriage licensing function and the court should reverse the denial of qualified immunity for kim davis because there was no violation of a constitutional right and there certainly wasn't a violation of a clearly established constitutional right  beginning with the sovereign immunity issue kim davis acted for the commonwealth and her marriage licensing function her duties to issue marriage licenses and really every aspect of marriage licensing clearly flows from the state this court's opinion in got freed in two thousand and one said that the county sheriff's obligations to enforce a state injunction made him a state official because those duties clearly flowed from the state and katie this court's opinion a county prosecutor in entering a plea agreement choosing what to prosecute what not to prosecute even though there was discretion involved this court held that she was a suit he was a state official enforcing state duties or state policy and in that case the court said the essential question is not whether there is discretion on the part of the official it's how much discretion is involved obviously prosecutors make myriad discretionary decisions on behalf of the state and the enforcement of state policy again in pew see the  case we have a city prosecutor deciding to reduce certain charges and again the court said that prosecutor was pursuing state policy and therefore acted as a as a state agent davis can davis upheld in and force state policy by not only looking at the marriage license and duties but also looking at kentucky which is a statute applicable to all state statutes and must be read in conjunction with with any statute where it may apply and so  license and duty to issue licenses on that uniform statewide form the governor bashir created and on the other hand she had the obligation as the government to enforce refer that is not substantially burden religious freedom of anyone in her office which would include her individually and therefore she of herself she was applying it to herself yes your honor this is the legal fiction that we have to deal with just as we can have a claims against kim davis here that are entitled to immunity as the district court held and claims that are not entitled to immunity as a district court held we have to respect that that fiction that davis in her official capacity has different rights and interesting kim davis in her individual capacity so davis exercised her discretion to not issue marriage licenses as a matter of pursuing state policy just like the the prosecutor's i don't see that she had discretion isn't there or isn't it a misdemeanor not to perform a duty imposed by law on the officer under the scare us five twenty two point zero two zero it is well this is the statutory scheme of marriage licensing was was not changed at this point wasn't her duty to issue the marriage license did issue a new marriage license form jim davis objected again in her individual capacity because of her her religious her sincere religious beliefs and in her official capacity she she tried to chart a path between  between the various obligations that were imposed on her one we have a birth to fill saying you must treat all couples the same two we have this new state wide marriage license in form and three we have kentucky refrig she chose a course of action that relied on the availability of licenses everywhere else in the state and certainly in the counties surrounding round counted the state giver going to direction on how she should enforce or comply with governor bush years directive was do your job or quit or resign we don't think that so but would that be basically to issue the licenses not withstanding referral but that would that would be the i think the correct understanding of the order but it what's caught up in that is the idea that governor sure couldn't do anything else which we know isn't true he changed the marriage license form unilaterally without a statutory mandate from the kentucky general assembly in fact he wouldn't call a special session if it was not self executing it simply invalidated kentucky's marriage license well as they stood it didn't say here's now how you have to issue marriage licenses it didn't specify who has to issue licenses or where they had to be issued and that's why we don't have a jim davis is a policy decision in forcing the dual state policies of getting marriage licenses issued on uniform forms which could still be done everywhere around brown county and respecting kentucky river which says government shall not substantially burden religious right and those cases those officials either had no statutory mandate to do something in particular or they had statutory permission to do something but no guidance as to how it should be done and each case they came up with arbitrary original voluntary policies that had no interaction or knowledge movement that's what she did she came up with a policy that says we're not using it we're not issuing any licenses her situation is different because in the other cases where so much discretion was exercised the court said they were acting as local officials they had no involvement with other state officials and their policy they made it all up themselves jim davis reacted to a a new state policy from governor bush here saying you're not entitled to an accommodation we have to view it in the context of the subsequent executive order from governor bev and that affirms she wasn't titled to an accommodation because his executive order which is equal at least in   thirty to governor bush years said kentucky owes you this accommodation it owes an accommodation to county clerks and therefore we're going to change the form jim davis's policy it was interim it was it was fluid it was something that was reacting to state official action she was pursuing promoting state policy i'm a little confused about what is dressing right now are you arguing for qualified immunity now or are you still arguing that it was a state she was w certainly overlapping consideration but she was acting for the state in my point i'm making is that she was pursuing at all times unfortunate of state policy conflicting statements these competing state policies just as prosecutors are called to do in their discretion and entering plea agreements or deciding what to prosecute they're always balancing competing state policy interests jim davis was a firm that she was promoting state policy when governor bevan said clerics are entitled to an accommodation under kentucky refrig so jim davis was acting in all signs in promotion of state policy and therefore she shouldn't be held to be a purely local official for purposes of sovereign immunity now like to turn to the to the qualified immunity question the question here is a little different the first question we have to ask is was there a violation of a constitutional right and that happens to also be jurisdiction with there is no violation of the constitutional right there's no case at all here the roman inquiry here we think is whether kentucky violated the right to marry of the plaintiffs and we think the answer is no kentucky suspended marriage licensing in one county to accommodate a religious objection while kentucky provided licenses and all the other counties that surround it if you're talking about are getting sued individually aren't you under qualified immunity that's correct in a so why are we talking about kentucky well because we're talking about whether there was a violation of a constitutional right in the first place we only get to her individual liability if there is a violation of a constitutional right and so i mean they're there they're saying we looks like kentucky did what they were supposed to do after the supreme court ruled but i mean there are a humanist she ignored not only the supreme court but she also ignored the directive from the governor and that was her you know her decision just to violate both directives which is not title she is individually not titled qualified immunity i disagree that there is a violation of a burger because it said same sex couples must be treated on the same terms as different sex and she said i'm not going to do that she refuses to enforce the supreme court decision but i disagree i think jim davis treated all couples the same that was that was the policy decision she faced she could have just issued licenses to different sex couples that would have created another constitutional issue that would have an equal protection problem and that would have violated directly it would have bertha fell said she chose to treat all couples the same trying to maintain the state wide uniformity of marriage licensing well it seems time  the religious liberty interest and so the what we have here is a situation where the government clearly can require licensing in the first place the government can require someone to go to a clerk's office a clerk's office to get a license requiring a person to go just one more county over to get a license is only incrementally more burdensome then then what is clearly allowed in this case isn't even like the states of maryland for example where you have to get a license and the county with a ceremony will occur so there's no constitutional right to get a marriage license in your own county or in your home county if kentucky required that if kentucky required marriage licenses in one's home county this would be a completely different case  kentucky does kentucky allows you to marry on a license obtained and any county in the state and so there was never a time when the plaintiffs or anyone else were unable to marry in kentucky so if they didn't so they didn't admit that african americans to the school well you can go to school in the county over so you're not burdened because you can no you can go you can drive thirty or thirty miles away and go to the next school so there's no burglary no violation i mean it doesn't make  sense does it i don't think that's analogous your honor because there was never a time when you could marry and around county the state can issue marriage licenses through county clerks or it could issue marriage licenses three magistrates or probate judges states all do it differently the state of kentucky could decide issue marriage licenses from regional offices that cover several counties what we have here is a situation where kentucky was issuing marriage licenses really well anyway i'm not real persuaded by that argument but you put your next argument is you claim treat same sex couples on the same terms as different sex couples that's all over the phil said it's up to the states then to implement that kentucky did eventually kentucky general assembly unanimously passed a wholesale revision of its marriage licensing statutes to implement what required and also it it accommodated what what came davis asked for which is taking clerks name and authority off of marriage licenses so what  isn't really the issue here that the fundamental right to marry was not violated there was no direct and substantial burden placed on any plaintiff's ability to to marry and therefore the policy is only subject to rational basis review religious liberty is a legitimate interest substantially hinder their their ability to marry the fact that the county clerk is not going to do it that you have to go to a probate judge or you have to go thirty miles away that's not a substantial marrying or cut off from entirely or largely from a from a large percentage of the population then there is no direct and substantial burden in the best example is the state nepotism law that would require a couple who works for the same school for example to have to one of them have to go to another school so that they could marry even if that meant driving an hour every day whereas driving want to another county for a five minute marriage license transaction that allows you to marry anywhere in the state is not a direct and substantial burden is that a burden yes but it's only incrementally more than having to get a license or go to a clerk's office in the first place and where the district court got this wrong was assuming without any allegation that there are residents around county that are physically and financially able to go to their own county clerk's office but are not physically or financially able to go to another county clerk's office that was not a fact in the record and it was never alleged by any of the plaintiffs here that there was a any that would be the same problem to get to the round county clerk's office there's no there's no there's no difference that substantial enough to take this from a burden that's acceptable under the constitution to a direct and substantial burden and so because rational basis review is satisfied by her the policy and that's all that's required she should be entitled to qualify me and i'll say the rest of my time very well much time did you reserve five minutes  case the reason you might have a hard time hearing is this morning yesterday i had temporary videos but on this morning on the way up here i was present some buttons on the car and that was my goal and they would words like use my teeth pull them off honor you guys have split up your time is that well i think the clerk was of the view that the county's attorney was a napoli's so she gave her a five hour minutes we really have twenty minutes and i don't really care how we split  couples same sex couples are entitled to you should separate places and we know that the issue the very first issue decided discussed stated in a burger still was whether or not there is a fourteenth amendment that requires states to issue a marriage license now mr ghanem said that the state of kentucky made a policy decision not to issue licenses in one of its one hundred twenty counties we know that never happen but under cribs we would look at six sided make a policy decision but it is sort of assume the risk that a clerk wouldn't issue a license by the way the statutory scheme is set up i mean there's no other official out there who can issue licenses right under that under th statute that existed at the time only mr davis could issue the licenses and rowan county we know that deputy clerks issued a license is before they change the law but they would have that would have to be done with her approval apparently perhaps yes but i guess my point is why can't we say she's a state actor the state assume the risk that they would have an erran county executive or a county clerk in the way they set up the statute and the fact that she wasn't following what the governor said is really beside the point they've already put themselves into the state has already put themselves in a position of being responsible for her acts because that's the way the statute reads because the policy that she implement was not required to enforce state law in under cripps that makes her a county official in other words if she creates a state of widespread policy not to issue licenses a violation of state law that doesn't make her a state actor that makes her the opposite of the state the statute says that in order to get a marriage license you have to get it from a county official that's what the state and acted through ok they could have they could have enacted it but it's up to each local county whether you get a marriage license and how it's to be issued but they didn't do it that way they said so it seems to me that they've already they've already established that she's a state actor by the way the statute set up that's that's what i'm i have read it well we would disagree and the crabs case county official and it was her policy and let's make no mistake about it kentucky didn't enact this policy mistake she took it on herself to do that and she did it with the sole purpose of she didn't believe that gays and lesbians were entitled to a marriage license so what she said was i want to show any license but in the city never attempted to prosecute her for violation of five twenty two dollars i know that's correct right i mean do we look at our specific for sovereign immunity purposes do we look at her duties or whether she violated her duties i thought we would look at the duties like that the duties here doesn't rise from her head of a state official or our duties of issue with a license arise from or have as a county official and i think we kind of agree that no it's state law it controls marriage in kentucky so it's a state function your argument what is she deviated from her duties and therefore she's not a state official but i don't know if that's the analysis we ought to do i think we ought to look at what she should have done to see if in fact she had a right and a reference to do something to accommodate her religious belief she could have merely alter the form a she did when she went before she went to jail when she got out of jail before anybody blessed her change the form she had three issues with before the authorization her name and her title well she could have she could have done that what would be more invasive or what is worse to say no license to get issued or to do that if she had done that those licenses would been legal under kentucky law we know that so she had a choice to make but to issue no licenses we don't think that that's a choice that she actually could make without subjecting herself to life dorothy my question i mean do we look at the duties that she should have performed or do we look at the violation of the duties that she actually performed for sovereign immunity purposes i think you look at what she didn't to when when a state official is not carrying out state official i think is entitle to sovereign immunity even when that state official does something wrong and usually when they do something wrong it's because they violated the duties but that doesn't exclude them from sovereign immunity because they screwed up but that's kind of what you're arguing i think we're no i think we're really arguing is that she under krebs she implemented a policy that was contrary to state law ok but there is no the policies for marriage of come from the state they don't come from the county and what she did by her own policy is making up her own their own policy but i get it back i think sovereign immunity we look at where the duties iraq rose from but ok i guess i understand tension between acting within a legislative within a scheme that gives this county official responsibility for executing the state scheme for marriage licenses and then so if he was issuing them he'd be a state actor we would agree with  there is no current policy she's making it up she's she's she's going going broke she's not well she did yes yes ok so there is not a current county policy that she's she's going rogue and making up her own policy she's going along so i mean i think  think judge white is right i think she's still a state actor because she's not following a college county policies following her own policy well she's making cammy policy while she does the she have the power to do it i don't know she had the power or  she in fact did it can you can you sort of try to untie that not a little as to why why she becomes at that point a county actor as opposed to a state that other than the the argument we made in our briefs which really comes down to crabs if she wasn't required to do what she did then she's a county official that's what crabs holes implementing a widespread policy where she's wearing multiple hats and we think that's the answer the question and is marriage marriage license is that analogous to be as other situations where the after try to say well i was doing this for under state policy i have to have sovereign immunity and mean is it swab which was the press case that was an ohio law so it was their state statute and that craps case requiring the state actor to do the cheek swab well he was supposed to do the swab upon a felony arrest not not have to somebody he's acquitted in there on the way out of the jailhouse he's not supposed to swap that's what he did that's right but it was all it was a local policy to do the cheeks well as opposed to a state statute telling him to do cheat sheets well here we have a state statute telling davis to issue marriage licenses we didn't when there was in that was there a statute involved it was a statute involved in that case and perhaps do it at the time of arrest ok ok and he did it at a different time he did a different time which wasn't permissible under the statute in that case to help that he went outside the bounds of being sovereign immunity was an entire the protection was acting as if it's something other than a state official we think the case is the closest one to this case that i recognize we would use your time on the sovereign immunity but if you want to briefly talk about the qualified immunity or not what she did was reasonably related to a legitimate government interest and we say the answer is no then they say there's no substantial burden of what she did right i understand but if there's a less intrusive alternative for instance to think the case comes to mind if you agree with them that there is something not a substantial burden here well in our brief i think we kind of conceded that if it's rational basis and she's a state actor i'm going to drive to another county is perhaps not that burdensome right i tend to disagree with you but ok but but if there's less what we know from the turner versus off the case united states supreme court case which involved marriage in a prison where the prison just outlawed marriage altogether the court overruled that decision saying there was there was a less less intrusive or invasive procedures that you could have implemented therefore it wasn't reasonable well rather than not issuing licenses to the whole county she could have done what she objection to the issuance of the form in the first place she did that on her own and you believe that would have complied with the law as it existed at that well it would if the license still would have been legal the marriages that were psalm ised with that license would have been legal and that would that's clearly established kentucky law for over two hundred years that it merely defective form doesn't affect the validity of a marriage so that's what she should have done and so that to my clients ok but somebody objected to that process of changing didn't didn't somebody get one of the kind of subject non market they were getting different marriage liaison in my case that's not part of our it's not yates the only thing i would like to to add to the sovereign immunity issue is i in my opinion the brotherton case directly on point that's the doctor that was harvesting corneas that implemented his own policy ohio law allowed him to harvest the corneas and they implemented a policy of i would think they called intentional ignorance where he wouldn't tell the families he was doing it he did that on a county wide basis it was a widespread policy and in that case brotherton said even though state law permitted the action and perhaps he's doing it correctly he's wearing state hat because his policy goes rogue from state law he becomes a county official i think that's what brotherton says and i think that's exactly what happened in this case well but the the difference is in somewhat on the fenton there's but the difference is that the whole area of marriage licenses is regulated by state law i mean it's what you need what the clerk supposed to do it's just all laid out there where with the coroner he he had there was a statute th told you what you had to do if you wanted to harvest corneas well i mean he didn't he wasn't obeying it and then he tried to say well i have a mutant you know i have immunity because i'm following she implements a policy contrary to state law and i think in your work you're using word rogue i would agree with that and decides not to do that she put on it she put on a county hat and i think that's what brotherton tells us so what do you majority with with the prosecutor  the the majority says that the prosecutor is a state agent and even though you know he had discretion to require that a cooling off and period and and the judge martin rate separately least tries to make the point that you're not a state actor unless you or sort of wrote lee enforcing the state requirement and the majority didn't accept that well perhaps it was because the facts of that case maybe didn't fit the argument i mean i would agree with judge morton that that's how that works i think i pulled this from the in the majority opinion when it in that case when they're describing what brotherton says the brotherton court explain that when considering whether a contested policy is a state policy the essential question is the degree of discretion possessed by the official in question implementing the contested policy but the language of brotherton makes clear that the essential question of discretion applies only to policy choices and not the individual acts by the official in force of state law so i think what that says is when the county official creates their own policy contrary to state law they're not a state actor actually correct to your point judge griffin about whether or not this was a split subsists abstention burden obviously we believe it is we don't concede that this is rational basis scrutiny judge bunning applied strict scrutiny to this and i think that was the the correct way to analyze this issue and under strict scrutiny her policy clearly is not going to withstand muster it's not going to stand up all right any further questions thank you  more my name is marianne stewart i represent the i represent around cannie who i think is an a police but i've been told were in poland so i'm not sure exactly what we are i'm just here to represent round county a monster here just to address that narrow issue in judge bunnings opinion answer to who pays which she fronting as a county official when she refused to issue the marriage licenses or as a state official i think there's been a lot of discussion already and i won't necessarily rehash what is already what what the court has already addressed however we agree with judge bunning that marriage is essentially in absolutely a state function that is clear under kentucky long the united states supreme court in the mcmillan case tells us that when we're looking at this issue you don't look at it as a general what is the label of the county official county clerk instead we look at the function in which she is is acting and in this case issuing marriage licenses is clearly an absolutely a state function it is governed by chapter four or two of the kentucky statute in ink keris for it to carry clerks are charged with issuance of marriage licenses they are charged with the ministerial duties of recording them reporting them agencies collecting the fees for them in remitting part of those fees back to the state to the state additionally in this case the actions of the two governors buttress the conclusion that she was acting as a state actor at the time that she refused to issue the marriage licenses first you have governor bashir issuing the order to the county clerk's not rowan county governor issued the order directing her to comply with the decision which she disregarded that later on governor bashir when she disregard their order and those of the district court governor it was governor bevan who then issued orders in that case he issued an order to the kentucky department of libraries to alter the form which by the way is a statutory form that all county clerks have to follow in the state state exactly what is in that form under governor bevan's orders k t l a was directed to change the form to accommodate him davis to remove the the signature line for the county clerk's on the marriage licenses and then following that lead the kentucky legislature then amended the statute pertaining to the marriage license for him to remove the signature of the canon clerks from that form so clearly this is absolutely all of those are actions by the state the county has no jurisdiction under kara's for it to with respect to marriage licenses and that's really the key here is that he is the function that she is that she is acting and it's not that she happened to be a county clerk nor is it written in nor is it following in the line of the cases of brotherton where there was a degree of discretion because here we have statutes that sent me an assyrian duties there are other factors that support that she is acting as is a state actor in kentucky only the state exercises control over the county clerks in terms of removal of a recalcitrant county clerk only the state can remove county cannot take an action to remove the state can remove through the power of impeachment only the state through criminal action can sanction or penalize a recalcitrant county clerk a county has no such authority and only the state can require the county clerks to post a bond and collect on that bond again the county does not have that authority so based upon all of that it is our position israel uncanny that judge bunnings order assessing the attorney fees to the state is correct he correctly followed the guidance of the supreme court in macmillan not on the attorney fees o but but the fact that only she can only be disciplined or removed by the state that doesn't change that that's there all the time it's right it is not the governing factor but i think it's a factor year to keep in context with kara's for a two in terms of the state setting and out the ministerial duties with respect marriage license these are additional factors but i do agree that there are some bites why can't you also say which i think is what your opponents are saying that the state mandate was clear she came up with her own county policy the this county doesn't issue marriage licenses but was completely different from and contrary to the state policy and my response to that would be that there is no body of law that converts if in fact she is doing if in fact she is acting outside of the state policy going broke so to speak there is no body of law that says well that converts that now to county action it does there's no body of law that states that and it doesn't convert it to county action because again it's not the action it's the function that she is acting in it is issuing the marriage licenses or will takes jurisdiction can which is the case that says it's the function and not the action because some of the cases figure out i mean one of the one of the ways they figure out who you're acting for is to act to actually look at the activity like i think brotherton does some of the others you know what did the what they really do what were they compelled to do so what case you're relying on to say no the focus is on the function and not the action and i'm relying upon the supreme court but to begin with the question that judge white had about who objected to the change of the marriage licenses and that was the miller plaintiff's case will argue next but that that record is so intertwined with what we're doing here we can say that we know that when marriage license form was towards people and we disagree with that but it illustrates it's not a cut and dried situation where she could have just changed the marriage license form at the outset in fact because it's her her very authorization that she objected to being on the form clerks only clerks under the statutory scheme can issue marriage licenses so it can davis withhold her authorization from that license that's more like a license it's not valid at all it's not like just making a minor mistake or a clerical error and filling it out so we don't think it was reasonable in the first instance just for her to assume that she could unilaterally change the marriage license form she only did it after she went to jail and then her deputies issue licenses that were changed and the district court said that's ok with me i'm go you out of jail to a sponte that's when she said well if that's allowed i'm going to change the license and then the government the a g said that's ok so it was reasonable for her to want to maintain the uniformity of the state marriage license forms perhaps anticipating the kind of that did happen in miller rather than just change it herself at the outset now i think about brotherton if brotherton is the case that that applies here then i think jim davis is a state official and that's because  brotherton the removal of the corneas in the first place it wasn't mandated by statute was only permitted and then the coroner went to step further and sort of instituted this i'm not going to pay attention to objections and just harvest as many corneas as possible  and so in the brotherton case there was no countervailing state mandate to collect corneas at all and certainly not to collect them over the objection or ignoring objections kim davis had a countervailing state mandate and referred now even if the court disagrees and thinks that she got that wrong it was at least reasonable it was at least objectively reasonable for her in this position with a brand new of decision trying to figure out the place to to chart a course through religious objection and the new requirement that was at least reasonable for qualified immunity purposes it wasn't clearly established that she was wrong it would have been clear to every other clerk under the same circumstances that that was the wrong thing to do and when you look at governor bevan subsequently of the obligations of referred to not substantially burden the religious liberty or the religious freedom and therefore it's easy for us to change the form rather than force them to face a do your job or quit proposition like governor bashir said and then you have the president of the senate who followed them because brief that says look kentucky marriage license statutes are shredded by a birth of photo we have no proper guidance for clerks on what to do next we need to change the marriage laws but there was an opportunity to do that until the general assembly met again another point i want to make and i think this is the point the judge griffin was making is that if every violation of an official's state mandated duties rendered that official no longer a state official it would really obliterate the whole sovereign immunity concept what we have with kim davis is situation is if she's a state official if she gets something wrong that doesn't automatically convert her county official and what we see again in the in the burton case  you had in no countervailing state mandate to justify in any sense what the the corner did whereas in the k t case the plea agreement case there we have which recognizes look state officials exercise discretion on behalf of the state all the time in a state official in this county prosecuting state criminal laws will always make the same decisions as a state official in this county prosecuting criminal laws but it's possible to exercise discretion on behalf of the state and we're arguing that's what kim davis did the court disagrees were arguing it was at least reasonable for her to think that that's what she was doing and even if the court what makes this case complicated the sovereign immunity is that i don't think kim davis had authority to institute a policy of a county wide level that the policies all come from the state which would make her a state official but although she has no discretion no authority for countywide policy she tried to do it and the question is the attempt to do a county policy which she has north already to act no authority to do that all of a sudden transformer into a county official because she reported to do it i guess judge griffin i think that's a good framing of the question and i think at least says she had a reasonable belief that she could do it and governor bevan subsequent executive order i think reinforces that so that it was at least reasonable for her to think she had that power even if the court conclu where you get in trouble is where you where you depart too far from the statutory mandate so that if you are collecting corneas for profit for example or in other cases if your instead of taking a cheek swab when a person is arrested you take  after they're acquitted that's too far away to say that any further questions on this this is the immunity appeal whether there is a community whether sovereign immunity or qualified immunity and without the or oral arguments completed the case will be submitted and i will move on to the attorney fees appeal so they call the next case