FRANKFORT, Ky. — The state of Kentucky, not Kim Davis or the county in which she serves as clerk, must pay over $220,000 in legal fees and costs to the attorneys of the homosexuals that sued the Rowan County clerk over her refusal to issue marriage licenses to homosexuals with her name appearing on them.
“[W]hen Davis made the unilateral decision to adopt a ‘no marriage licenses’ policy, she was acting as an agent of the Commonwealth, not Rowan County. Therefore, Rowan County is not liable for Davis’s actions or Plaintiffs’ attorneys’ fees,” wrote Judge David Bunning on Friday. “Davis represented the Commonwealth of Kentucky when she refused to issue marriage licenses to legally eligible couples. The buck stops there.”
He found that attorneys’ fees should be awarded because those who sued succeeded in the legal battle.
“Here, Plaintiffs obtained ‘excellent’ results. They sought to enjoin Davis from enforcing her ‘no marriage licenses’ policy, vindicate their fundamental right to marry, and obtain marriage licenses; and they did so,” Bunning wrote. “Focusing on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”
The state must now pay $222,695 to cover the expenditures of the American Civil Liberties Union (ACLU) attorneys who worked on the cases.
As previously reported, Davis had been in national headlines in 2015 after she declined to issue same-sex “marriage” licenses as long as her name was on the documents. Davis, who attends a Oneness Apostolic Pentecostal assembly, said that she would do so if her name was removed.
Her refusal soon led to three lawsuits—Miller v. Davis, Ermold v. Davis and Yates v. Davis—filed by homosexuals who sought to force Davis to issue the licenses.
In September 2015, Bunning ordered that Davis issue the licenses, but as she continued to refuse without the accommodation, Bunning ordered that she be placed behind bars until she was willing to comply. In the meantime, the judge arranged for a deputy clerk to sign the licenses in her absence.
Davis was released from the Carter County Jail five days later after her attorneys filed an appeal of the contempt order, and also because Bunning was satisfied that her deputy clerks were providing the licenses instead. He stipulated her release on the condition that she not interfere with her deputies.
By the end of the year, new Kentucky Gov. Matt Bevin issued an executive order for the Department for Libraries and Archives to release new licenses that do not cite the county or the name of the county clerk. Months later, the state legislature passed a law altering the licenses similar to Bevin’s order.
Bunning therefore dismissed the remaining suits against Davis after determining that their legal challenges were now moot. Soon after, the plaintiffs in the cases filed a motion requesting to be granted attorney’s fees and costs.
The matter was referred to U.S. District Judge Edward Atkins for a report and referral, and in March, he concluded that attorney’s fees were not recoverable because legislative changes—not a court ruling—brought an end to the legal matter, which was subsequently declared moot. Therefore, Atkins explained, the ACLU and the homosexuals it represented could not be considered the victors in the case.
“[T]he plaintiffs are not ‘prevailing parties’ within the meaning of § 1988, and are therefore not entitled to an award of attorneys’ fees,” he wrote. “This voluntary conduct by the state changing the marriage license forms so that the county clerk, Kim Davis, was no longer required to sign the license, does not signal that the plaintiffs prevailed in the action, and cannot serve as the basis for an award of attorney’s fees.”
However, on Friday, Bunning rejected Atkins’ report and recommendation, opining that those who sued Davis “won the war.”
“Legally eligible couples, whether same-sex or not, received marriage licenses in Rowan County after the court enjoined Davis from continuing her ‘no marriage licenses’ policy,” he noted—the point that served as the basis for the rest of his ruling, which ordered the state to pay for the ACLU’s legal costs and fees.
Davis’ attorneys disagree with the assessment and don’t believe that it can be said that the plaintiffs prevailed. They plan to appeal.
“The part of the ruling that finds the plaintiffs were prevailing parties is contrary to the law because the legislature mooted the case by passing a law that provides for the precise religious liberty accommodation Kim Davis sought,” Mat Staver of Liberty Counsel said in a statement. “While Kim Davis and Rowan County are not liable for fees and costs, neither is the Commonwealth of Kentucky, and this aspect of the ruling will be appealed.”
“Without prevailing party status, there can be no attorneys’ fees.”