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.
The following is not defending Davis per se, but rather defending following state procedure.
All of those things may well happen, but Kentucky has procedures for elected officials. The legislature could impeach her [1], but seems disinclined to do so. The remarks I've seen from legislative leaders suggest that they would like to have a special session for the purpose of modifying statute to reach some accommodation [2], but not impeachment. The governor has declined to allow that. The county attorney has referred a charge of official misconduct to the state attorney general. In Kentucky, official misconduct is a misdemeanor, which might cost her the office (the legislative staff's summaries on county officials aren't clear on that, and I've already spent too much time skimming Kentucky statutes this AM), but probably not her pension [3]. A felony conviction would cost her both, but Kentucky statute seems to require that elected officials mishandle money for misconduct to reach felony level.
[1] Based on my time hanging around legislators, they tend to be very, very protective of their privileges about removing elected officials. The governor is probably out of the loop entirely, and Kentucky is not a recall state. Nor is it clear that even if it were put to a vote by the people of Rowan County, Kentucky, Davis would be recalled.
[2] With my former legislative staff hat on, Davis's problem appears to be that she is required to put her personal signature on the documents -- no one else's signature will do (well, the county judge/executive, but only if the clerk's position is vacant). One alternative might be the use of an anonymous official "Seal of the County Clerk's Office" but that requires a statutory change.
[3] She has pension credit accumulated over 27 years as an employee before she was elected to office. Taking her pension away over something that Kentucky state law treats as a misdemeanor -- a level of criminal act that wouldn't cost anyone else their pension -- strikes me as improperly savage, and probably wouldn't stand up in court.
Excellent! Some questions about reality, as opposed to drama, though.
I believe Kim Davis was elected running as a Democrat. "Red state" is usually used to mean Republican rather than a more non-partisan conservative. Perhaps the governor should be saying something about a big tent not being an excuse to fail to do your job.
The Kentucky constitution appears to me to make counties creatures of the legislature. I suspect that Mr. Shaver is correct in the sense that when the Governor's action here reaches the Kentucky supreme court, the court would reject the notion that the governor can take over the functions of the county clerk's office (eg, he appears to have claimed that he, or a designated person from his office, is now the chair of the Rowan County election board, which must meet at least monthly).
Mr. Moore and Mr. Ermold and their attorneys clearly understand "mootness". They could have gotten a license and been married weeks ago by simply driving to an adjacent county and getting a license, with no question about the legality. Now they have a license of perhaps questionable legality (I certainly think there's room for doubt) and have failed in their goal of forcing the elected Rowan County Clerk to issue a marriage license. I would think they would be unhappy with this outcome.
Not that I'm fond of despots, even the benevolent dictator sort (which may, admittedly, be outside the way you use the term), but there are times when I feel like a variation on Zakaria is the general rule -- you need some combination of a big-enough rich-enough middle class and a moderately-functional bureaucracy in order to get democracy to work.
Do you feel the same way about alcohol? That anyone should be allowed to distill spirits, and sell to anyone regardless of age? Or should there be at least minimum regulation? Honest questions -- I know that I had strong feelings about my 16-year-olds' access to alcohol outside our home.
Anecdotes are not data, but consider the case used as the example in this Slate story. Four pounds in the car; selling to people to whom he delivers pizza. Folks, that behavior is still a felony post-Amendment 64, with a maximum penalty of six years and a $500,000 fine. He got off with probation; why should he get clemency?
...and there’s NOTHING TO DO HERE! FUCK SMALL TOWN AMERICA!
I can hear my kids' generation saying something similar (to which I was known to respond, "You have no idea what an actual backside-of-nowhere small town is like"). It will be interesting to see what the next generation in this suburb says; for them, it'll be an 18-minute train ride to downtown Denver -- faster access than a lot of people who live in Denver have.
The one that always got me was that I could start from our house in Freehold Township, drive to the Metropark at Iselin, ride the train to Manhattan, maybe 50 miles total, and never be "out of town". Then think, "Yeah, I could go at least as far beyond Manhattan the other way and still not be out of town.
Granted, what with the Denver area's insane growth for the last 25 years, I could drive from Boulder to Parker, also about 50 miles, and never be out of town.
@will-truman
This settlement heirarchy divides villages and towns at 1K, towns and large towns at 20K. I'm probably cutting "small town" off somewhere between 5K and 10K -- the point where, based on my experience, it stops being walkable for a majority of the population much of the time. To @leeesq 's comment, it's certainly possible to build a town that size that's walkable. Towns that grew to that size organically tend to be too spread out for various reasons. I suspect there are some rather marked regional contrasts, though.
@stillwater
Another metric involves "degree of isolation" or some such. When I lived in NJ, people talked about living in a "town" with a population of <10K -- which met the definition of what I would call a town, possibly even a small town -- but neglected that there were a dozen towns that abutted one another, with no recognizable buffers between them. In effect, it was a multi-centered small city of 120K or more.
*Comment archive for non-registered commenters assembled by email address as provided.
On “Volokh on Kim Davis”
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.
On “Breaking Vexillological News”
How could a kiwi with a laser beam shooting out of its eye not make the final cut?
On “Une Vignette Fantastique du Kentucky”
The following is not defending Davis per se, but rather defending following state procedure.
All of those things may well happen, but Kentucky has procedures for elected officials. The legislature could impeach her [1], but seems disinclined to do so. The remarks I've seen from legislative leaders suggest that they would like to have a special session for the purpose of modifying statute to reach some accommodation [2], but not impeachment. The governor has declined to allow that. The county attorney has referred a charge of official misconduct to the state attorney general. In Kentucky, official misconduct is a misdemeanor, which might cost her the office (the legislative staff's summaries on county officials aren't clear on that, and I've already spent too much time skimming Kentucky statutes this AM), but probably not her pension [3]. A felony conviction would cost her both, but Kentucky statute seems to require that elected officials mishandle money for misconduct to reach felony level.
[1] Based on my time hanging around legislators, they tend to be very, very protective of their privileges about removing elected officials. The governor is probably out of the loop entirely, and Kentucky is not a recall state. Nor is it clear that even if it were put to a vote by the people of Rowan County, Kentucky, Davis would be recalled.
[2] With my former legislative staff hat on, Davis's problem appears to be that she is required to put her personal signature on the documents -- no one else's signature will do (well, the county judge/executive, but only if the clerk's position is vacant). One alternative might be the use of an anonymous official "Seal of the County Clerk's Office" but that requires a statutory change.
[3] She has pension credit accumulated over 27 years as an employee before she was elected to office. Taking her pension away over something that Kentucky state law treats as a misdemeanor -- a level of criminal act that wouldn't cost anyone else their pension -- strikes me as improperly savage, and probably wouldn't stand up in court.
"
Excellent! Some questions about reality, as opposed to drama, though.
I believe Kim Davis was elected running as a Democrat. "Red state" is usually used to mean Republican rather than a more non-partisan conservative. Perhaps the governor should be saying something about a big tent not being an excuse to fail to do your job.
The Kentucky constitution appears to me to make counties creatures of the legislature. I suspect that Mr. Shaver is correct in the sense that when the Governor's action here reaches the Kentucky supreme court, the court would reject the notion that the governor can take over the functions of the county clerk's office (eg, he appears to have claimed that he, or a designated person from his office, is now the chair of the Rowan County election board, which must meet at least monthly).
Mr. Moore and Mr. Ermold and their attorneys clearly understand "mootness". They could have gotten a license and been married weeks ago by simply driving to an adjacent county and getting a license, with no question about the legality. Now they have a license of perhaps questionable legality (I certainly think there's room for doubt) and have failed in their goal of forcing the elected Rowan County Clerk to issue a marriage license. I would think they would be unhappy with this outcome.
On “Whoa”
Not that I'm fond of despots, even the benevolent dictator sort (which may, admittedly, be outside the way you use the term), but there are times when I feel like a variation on Zakaria is the general rule -- you need some combination of a big-enough rich-enough middle class and a moderately-functional bureaucracy in order to get democracy to work.
On ““Why do we continue to trust these [people]?””
Do you feel the same way about alcohol? That anyone should be allowed to distill spirits, and sell to anyone regardless of age? Or should there be at least minimum regulation? Honest questions -- I know that I had strong feelings about my 16-year-olds' access to alcohol outside our home.
"
Anecdotes are not data, but consider the case used as the example in this Slate story. Four pounds in the car; selling to people to whom he delivers pizza. Folks, that behavior is still a felony post-Amendment 64, with a maximum penalty of six years and a $500,000 fine. He got off with probation; why should he get clemency?
On “Playing the Trump Card: The Party Elite, Wonks, the Rest of Us”
...and there’s NOTHING TO DO HERE! FUCK SMALL TOWN AMERICA!
I can hear my kids' generation saying something similar (to which I was known to respond, "You have no idea what an actual backside-of-nowhere small town is like"). It will be interesting to see what the next generation in this suburb says; for them, it'll be an 18-minute train ride to downtown Denver -- faster access than a lot of people who live in Denver have.
"
Various places in Monmouth County.
The one that always got me was that I could start from our house in Freehold Township, drive to the Metropark at Iselin, ride the train to Manhattan, maybe 50 miles total, and never be "out of town". Then think, "Yeah, I could go at least as far beyond Manhattan the other way and still not be out of town.
Granted, what with the Denver area's insane growth for the last 25 years, I could drive from Boulder to Parker, also about 50 miles, and never be out of town.
"
@will-truman
This settlement heirarchy divides villages and towns at 1K, towns and large towns at 20K. I'm probably cutting "small town" off somewhere between 5K and 10K -- the point where, based on my experience, it stops being walkable for a majority of the population much of the time. To @leeesq 's comment, it's certainly possible to build a town that size that's walkable. Towns that grew to that size organically tend to be too spread out for various reasons. I suspect there are some rather marked regional contrasts, though.
@stillwater
Another metric involves "degree of isolation" or some such. When I lived in NJ, people talked about living in a "town" with a population of <10K -- which met the definition of what I would call a town, possibly even a small town -- but neglected that there were a dozen towns that abutted one another, with no recognizable buffers between them. In effect, it was a multi-centered small city of 120K or more.
*Comment archive for non-registered commenters assembled by email address as provided.