IANAL, merely a former legislative staffer, but here's what Kentucky statute says about severability:
446.090 Severability.
It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.
The annotation on this says the intent was to obviate the need for a severability clause on each act. Since the marriage statute doesn't appear to say that it isn't severable, then it is, and the courts have considerable lattitude.
Anyone who's saying that the whole marriage statute is gone because it doesn't include a severability clause is wrong, at least about Kentucky.
I believe Mike's referring to Heinlein's roadtowns, which are powered by "Douglas-Martin solar receptor screens", ie, cheap highly-efficient solar panels. I don't think Heinlein placed the solar panels on the surface of the moving roadways themselves, but I could be wrong about that.
And "Oscar Gordon" is, of course, the lead character in Glory Road.
I participate in a sport -- fencing -- where the bout referee is as close to a demi-god as is possible. You can ask for an explanation why the point was given to your opponent instead of to you, but arguing about it is an automatic red card (another point for your opponent). Behave badly enough and there's a separate black card that gets you expelled from the event.
Anyway, I was at a recent tournament that had two of the better local fencers in the final bout. One is normally the most considerate guy around, and the other has a reputation as a hothead. Before the second period began, the quiet guy threw a fit (politely) over some technical issue that was within his rights to challenge. Appealed to the head referee, who resolved things in his favor, but after a lengthy delay. You could tell the regular referee was in no mood to tolerate any more sh*t from anyone. For the rest of the bout the hothead was focused on stopping his normal outbursts for fear of getting a red (or even black) card. Put him completely off his game, and he lost a bout he would normally have won.
Well, there are certainly circumstances under which they could be legal. KRS 402.100 uses "signature of the county clerk or deputy clerk issuing the license." 402.240 says that if the clerk is absent or the office of clerk is vacant, the county judge/executive can issue the license instead. Presumably the next dust-up is when Ms. Davis returns to work, announces that no licenses are to be issued, and one of the deputy clerks says, "You can't order me to violate a federal court order and be in contempt."
Right. We also know that there was a whole troubadour/jongleur profession in France, minnesingers in Germany, and minstrels in England in the Middle Ages, although very little of their work survived in any form. Music as performance art has a much broader history than many people seem to think.
Yeah, and I'm entirely in favor of that. Fill out the standard form, have the signatures notarized as the state feels is necessary, then turn in the form and have the county put it in a drawer, same as they file property transactions (sales, mortgages, liens, etc). Probably have to put the burden of checking that all the blanks have been filled in onto the officiant. In this day and age, I might want the county to run it through a scanner and have that go into a state-wide database.
Same in the west Denver suburbs, at least at the Kroger-owned chain. All of the stores I frequent have added more self-check positions over time. They've also tinkered with the software, the layout of the positions, and the way the staff works those positions -- small steps that have added up to a big overall improvement.
I use the self-check not because it's really any quicker than the express check-out lane, but because I'm a fanatic about bagging. I'd probably use the express check-out if they didn't make such a fuss about me bagging things myself.
Add that, as I've noted elsewhere, Alabama's existing statute says probate judges "may" issue licenses. Kentucky's statute says clerks "shall" issue. On such apparently minor choice of words by the legislature, legal cases live or die.
For county clerks... The state wishes to archive information that, at a particular time and place, people presented particular information, which was examined for obvious fault -- "You call this a driver's license?!?" -- and that fact recorded for possible consultation ten or 20 years from now. What do you propose as an alternative to ink signature on a piece of paper?
This is a dead serious question. AI isn't here yet. Reliable digital storage isn't here yet. People examining the papers and signing what is effectively an affidavit has hundreds of years of reasonable success.
It's entertaining to read some of the Kentucky statutes pertaining to the county clerk's office (originally the county court clerk's office). Records that must be kept in books. Misdemeanor crimes for failure to turn such books over to the successor in office. Very rural, very late-1800s feel to some of it.
Having had one career that included IT security from time to time, and then some time as a legislative analyst, I'm a whole lot more comfortable with paper and ink and embossed seals as the historical record that might have to be consulted some years after the fact in legal proceedings.
Staver called on the judge as well as Democratic Gov. Steve Beshear to make "reasonable accommodations" so that Davis can keep her job without violating her beliefs as an Apostolic Christian. He suggested that with an executive order, he could change all the forms in Kentucky so that none require a clerk's signature or say that they've been issued under a clerk's authority.
I'm assuming that her attorney has a good idea of what she considers an acceptable accommodation.
It will be along the lines that (in the case of county clerks) the RFRA is a requirement that the state consider and make reasonable accommodations. It is not a license for clerks to make arbitrary changes to the state's forms or procedures on their own.
I know it's the internet and all, and the comment threads on this OtC post have been most entertaining, but I am struck by the number of people here (and in the media generally, it must be said) that make all sorts of claims about the law but have obviously not read the Kentucky statutes. My time as a legislative staffer certainly instilled in me the attitude that if you don't go read the statute itself -- and many times the case law that follows -- you're going to say things that are simply wrong.
Reading through the Alabama statute this AM, it appears that the cases there will proceed differently. The text says that county probate judges (who do the job in Alabama, rather than clerks) "may" issue marriage licenses, and then there's a bunch of requirements about record-keeping if/when they do. At least one of the Alabama judges has pointed out that, unlike the case in Kentucky where the statute uses "shall", there's no Alabama state requirement that he issue marriage licenses.
She can't "allow her underlings to issue marriage licenses". Under Kentucky statute, at some point she must sign the license, which appears to be the main point of her complaint. If the clerk's position is vacant or the clerk is unavailable for some reason -- which I assume will include being in jail -- then the county judge must sign the license for it to be valid. As Will Truman has noted elsewhere, the Kentucky legislature could have anticipated this sort of problem and changed things so that the signature, or clerk's name, isn't required to appear at all. They didn't do that, and unless the governor changes his mind about a special session, can't do it until January.
The cases in Alabama will probably proceed differently because there the statute says that county probate judges "may" issue licenses. In Kentucky, it's a "shall".
A minor but tedious and time-consuming plumbing repair.
When I was at Lowe's yesterday buying the various parts I'll need, the woman checking me out asked me how I was doing. She found it hilarious that my answer was, "I'm buying plumbing parts. The only question is whether I'm doing moderately bad, or really bad."
The question of why Utah but not those other states is an interesting one. This is not the only policy area where Utah is different: the homeless program they started in 2005 has been lauded by all sorts of liberal media, and they started reforming their state health insurance system in 2008. The approaches they took to those problems would be, at least in my opinion, DOA in any Southern legislature.
My speculation would be along three different lines. First, there's only one church that matters in Utah. Across most of the South, there are lots of different denominations, not all of which agree with one another (see, "herding cats"). Second, all of the Mormons I know strike me as holding the opinion that the church has to deal with the world as it is, not the world as they wish it were. Third, despite what other parts of the country might think, Utah is a heavily non-rural state and much of this is still an urban/rural thing (9.4% of Utah's population was rural in 2010; 41.6% of Kentucky's).
Seriously, dude, do you have any idea how hard it is to get a state legislature to change the law in anticipation of a court decision? Additionally, I would not be surprised if the Kentucky County Clerks Association actually opposed the kind of change we're talking about -- for most of them, signing the marriage license for a happy young couple is probably the best part of their working day.
Just as a note, in the Kentucky legislative staff's description of county government, marriage licenses are way down near the bottom of the "miscellaneous duties" list. The clerks' big jobs are top election official in the county and all that entails, real estate transactions, everything motor vehicle (registration, taxes, etc, and county court records.
No recall, but the state legislature can impeach her if they're in session. If they were, they are much more likely to modify the law so that Davis doesn't have to sign the marriage licenses (which is apparently what has her upset). In fact, the senate majority leader has already asked the governor to call a special session so they can do just that.
In Kentucky, a government official or employee who is convicted of a felony in association with their official duties forfeits their pension. The Rowan County attorney has referred a charge of official misconduct against Ms. Davis to the Kentucky AG. That's a misdemeanor, unless it involves enough of the right kinds of public funds, which this case doesn't.
She's an elected official. Under Kentucky statute she can be removed if the state legislature impeaches her, or (with more uncertainty here) if she's convicted of a felony. The legislature is not in session and the governor has declined to call a special session. The local county prosecutor has referred an "official misconduct" charge to the state AG; in Kentucky official misconduct is only a misdemeanor and the possible penalties listed in the statute don't include removal from office.
Some of the people from her office raised the issue this afternoon that under Kentucky law, the licenses might not be valid without the clerk's signature. That was my impression when I was skimming through some of the Kentucky statutes yesterday -- that Kentucky uses the clerk's signature rather than some sort of anonymous official seal.
There seem to be several ways that the Kentucky legislature could deal with this by modifying the statutes, but they can't call themselves into special session and the governor has declined to do so.
On “Kim Davis Freed”
IANAL, merely a former legislative staffer, but here's what Kentucky statute says about severability:
The annotation on this says the intent was to obviate the need for a severability clause on each act. Since the marriage statute doesn't appear to say that it isn't severable, then it is, and the courts have considerable lattitude.
Anyone who's saying that the whole marriage statute is gone because it doesn't include a severability clause is wrong, at least about Kentucky.
On “Sportsmanship?”
I believe Mike's referring to Heinlein's roadtowns, which are powered by "Douglas-Martin solar receptor screens", ie, cheap highly-efficient solar panels. I don't think Heinlein placed the solar panels on the surface of the moving roadways themselves, but I could be wrong about that.
And "Oscar Gordon" is, of course, the lead character in Glory Road.
On “High School Athletes Strike Referees”
Get on his or her good side.
I participate in a sport -- fencing -- where the bout referee is as close to a demi-god as is possible. You can ask for an explanation why the point was given to your opponent instead of to you, but arguing about it is an automatic red card (another point for your opponent). Behave badly enough and there's a separate black card that gets you expelled from the event.
Anyway, I was at a recent tournament that had two of the better local fencers in the final bout. One is normally the most considerate guy around, and the other has a reputation as a hothead. Before the second period began, the quiet guy threw a fit (politely) over some technical issue that was within his rights to challenge. Appealed to the head referee, who resolved things in his favor, but after a lengthy delay. You could tell the regular referee was in no mood to tolerate any more sh*t from anyone. For the rest of the bout the hothead was focused on stopping his normal outbursts for fear of getting a red (or even black) card. Put him completely off his game, and he lost a bout he would normally have won.
On “Kim Davis Freed”
Rod Dreher has already pointed out several reasons why Kim Davis is not, to use his words, "the hill to die on" for orthodox Christians.
"
Well, there are certainly circumstances under which they could be legal. KRS 402.100 uses "signature of the county clerk or deputy clerk issuing the license." 402.240 says that if the clerk is absent or the office of clerk is vacant, the county judge/executive can issue the license instead. Presumably the next dust-up is when Ms. Davis returns to work, announces that no licenses are to be issued, and one of the deputy clerks says, "You can't order me to violate a federal court order and be in contempt."
On “Getting Myself in Trouble: Some Thoughts on Aesthetics and Culture and the Revolt against the Intellectual”
Right. We also know that there was a whole troubadour/jongleur profession in France, minnesingers in Germany, and minstrels in England in the Middle Ages, although very little of their work survived in any form. Music as performance art has a much broader history than many people seem to think.
On “Volokh on Kim Davis”
Yeah, and I'm entirely in favor of that. Fill out the standard form, have the signatures notarized as the state feels is necessary, then turn in the form and have the county put it in a drawer, same as they file property transactions (sales, mortgages, liens, etc). Probably have to put the burden of checking that all the blanks have been filled in onto the officiant. In this day and age, I might want the county to run it through a scanner and have that go into a state-wide database.
"
Same in the west Denver suburbs, at least at the Kroger-owned chain. All of the stores I frequent have added more self-check positions over time. They've also tinkered with the software, the layout of the positions, and the way the staff works those positions -- small steps that have added up to a big overall improvement.
I use the self-check not because it's really any quicker than the express check-out lane, but because I'm a fanatic about bagging. I'd probably use the express check-out if they didn't make such a fuss about me bagging things myself.
"
Add that, as I've noted elsewhere, Alabama's existing statute says probate judges "may" issue licenses. Kentucky's statute says clerks "shall" issue. On such apparently minor choice of words by the legislature, legal cases live or die.
"
Don't make me come to San Francisco and hurt you.
"
For county clerks... The state wishes to archive information that, at a particular time and place, people presented particular information, which was examined for obvious fault -- "You call this a driver's license?!?" -- and that fact recorded for possible consultation ten or 20 years from now. What do you propose as an alternative to ink signature on a piece of paper?
This is a dead serious question. AI isn't here yet. Reliable digital storage isn't here yet. People examining the papers and signing what is effectively an affidavit has hundreds of years of reasonable success.
"
It's entertaining to read some of the Kentucky statutes pertaining to the county clerk's office (originally the county court clerk's office). Records that must be kept in books. Misdemeanor crimes for failure to turn such books over to the successor in office. Very rural, very late-1800s feel to some of it.
Having had one career that included IT security from time to time, and then some time as a legislative analyst, I'm a whole lot more comfortable with paper and ink and embossed seals as the historical record that might have to be consulted some years after the fact in legal proceedings.
"
This from an AP story published yesterday:
I'm assuming that her attorney has a good idea of what she considers an acceptable accommodation.
"
It will be along the lines that (in the case of county clerks) the RFRA is a requirement that the state consider and make reasonable accommodations. It is not a license for clerks to make arbitrary changes to the state's forms or procedures on their own.
"
...then one of Davis’ clerks can draw up a new form that does not have Davis’ name, but instead refers to “Office of the Rowan County Court Clerk.”
Kentucky statute requires clerks to use the form designed by the Department for Libraries and Archives.
On “This is terrible optics.”
I know it's the internet and all, and the comment threads on this OtC post have been most entertaining, but I am struck by the number of people here (and in the media generally, it must be said) that make all sorts of claims about the law but have obviously not read the Kentucky statutes. My time as a legislative staffer certainly instilled in me the attitude that if you don't go read the statute itself -- and many times the case law that follows -- you're going to say things that are simply wrong.
"
Reading through the Alabama statute this AM, it appears that the cases there will proceed differently. The text says that county probate judges (who do the job in Alabama, rather than clerks) "may" issue marriage licenses, and then there's a bunch of requirements about record-keeping if/when they do. At least one of the Alabama judges has pointed out that, unlike the case in Kentucky where the statute uses "shall", there's no Alabama state requirement that he issue marriage licenses.
"
She can't "allow her underlings to issue marriage licenses". Under Kentucky statute, at some point she must sign the license, which appears to be the main point of her complaint. If the clerk's position is vacant or the clerk is unavailable for some reason -- which I assume will include being in jail -- then the county judge must sign the license for it to be valid. As Will Truman has noted elsewhere, the Kentucky legislature could have anticipated this sort of problem and changed things so that the signature, or clerk's name, isn't required to appear at all. They didn't do that, and unless the governor changes his mind about a special session, can't do it until January.
The cases in Alabama will probably proceed differently because there the statute says that county probate judges "may" issue licenses. In Kentucky, it's a "shall".
On “Weekend!”
A minor but tedious and time-consuming plumbing repair.
When I was at Lowe's yesterday buying the various parts I'll need, the woman checking me out asked me how I was doing. She found it hilarious that my answer was, "I'm buying plumbing parts. The only question is whether I'm doing moderately bad, or really bad."
On “This is terrible optics.”
The question of why Utah but not those other states is an interesting one. This is not the only policy area where Utah is different: the homeless program they started in 2005 has been lauded by all sorts of liberal media, and they started reforming their state health insurance system in 2008. The approaches they took to those problems would be, at least in my opinion, DOA in any Southern legislature.
My speculation would be along three different lines. First, there's only one church that matters in Utah. Across most of the South, there are lots of different denominations, not all of which agree with one another (see, "herding cats"). Second, all of the Mormons I know strike me as holding the opinion that the church has to deal with the world as it is, not the world as they wish it were. Third, despite what other parts of the country might think, Utah is a heavily non-rural state and much of this is still an urban/rural thing (9.4% of Utah's population was rural in 2010; 41.6% of Kentucky's).
"
Seriously, dude, do you have any idea how hard it is to get a state legislature to change the law in anticipation of a court decision? Additionally, I would not be surprised if the Kentucky County Clerks Association actually opposed the kind of change we're talking about -- for most of them, signing the marriage license for a happy young couple is probably the best part of their working day.
Just as a note, in the Kentucky legislative staff's description of county government, marriage licenses are way down near the bottom of the "miscellaneous duties" list. The clerks' big jobs are top election official in the county and all that entails, real estate transactions, everything motor vehicle (registration, taxes, etc, and county court records.
"
No recall, but the state legislature can impeach her if they're in session. If they were, they are much more likely to modify the law so that Davis doesn't have to sign the marriage licenses (which is apparently what has her upset). In fact, the senate majority leader has already asked the governor to call a special session so they can do just that.
In Kentucky, a government official or employee who is convicted of a felony in association with their official duties forfeits their pension. The Rowan County attorney has referred a charge of official misconduct against Ms. Davis to the Kentucky AG. That's a misdemeanor, unless it involves enough of the right kinds of public funds, which this case doesn't.
"
She's an elected official. Under Kentucky statute she can be removed if the state legislature impeaches her, or (with more uncertainty here) if she's convicted of a felony. The legislature is not in session and the governor has declined to call a special session. The local county prosecutor has referred an "official misconduct" charge to the state AG; in Kentucky official misconduct is only a misdemeanor and the possible penalties listed in the statute don't include removal from office.
"
Some of the people from her office raised the issue this afternoon that under Kentucky law, the licenses might not be valid without the clerk's signature. That was my impression when I was skimming through some of the Kentucky statutes yesterday -- that Kentucky uses the clerk's signature rather than some sort of anonymous official seal.
There seem to be several ways that the Kentucky legislature could deal with this by modifying the statutes, but they can't call themselves into special session and the governor has declined to do so.
On “Une Vignette Fantastique du Kentucky”
I've been thinking about a clerk whose religion forbids interest refusing to record mortgages or property liens.
*Comment archive for non-registered commenters assembled by email address as provided.