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Ermold v. Davis

United States Court of Appeals, Sixth Circuit

August 23, 2019

DAVID ERMOLD; DAVID MOORE, Plaintiffs-Appellees, Plaintiffs-Appellees/Cross-Appellants
v.
KIM DAVIS, Individually, Defendant-Appellant, ELWOOD CAUDILL, JR., Clerk of Rowan County, Kentucky, Defendant-Appellant/Cross Appellee. WILL SMITH; JAMES YATES, Plaintiffs-Appellees, Plaintiffs-Appellees/Cross-Appellants,
v.
KIM DAVIS, Individually, Defendant-Appellant, ELWOOD CAUDILL, JR., Clerk of Rowan County, Kentucky, Defendant-Appellant/Cross-Appellee, ROWAN COUNTY, KENTUCKY, Defendant-Appellee

          Argued: January 31, 2019

          Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 0:15-cv-00046-David L. Bunning, District Judge.

         ARGUED:

          Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Kim Davis and Elwood Caudill, Jr.

          Michael J. Gartland, DELCOTTO LAW GROUP PLLC, Lexington, Kentucky, for David Ermold and David Moore.

          W. Kash Stilz, Jr., ROUSH & STILZ, P.S.C., Covington, Kentucky, for James Yates and Will Smith.

          Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Rowan County.

         ON BRIEF:

          Roger K. Gannam, Mathew D. Staver, Horatio G. Mihet, Kristina J. Wenberg, LIBERTY COUNSEL, Orlando, Florida, for Kim Davis and Elwood Caudill, Jr.

          Michael J. Gartland, DELCOTTO LAW GROUP PLLC, Lexington, Kentucky, for David Ermold and David Moore.

          W. Kash Stilz, Jr., ROUSH & STILZ, P.S.C., Covington, Kentucky, for James Yates and Will Smith.

          Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Rowan County.

          Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.

          OPINION

          GRIFFIN, CIRCUIT JUDGE.

         At first glance, this case appears simple. When Kim Davis was County Clerk for Rowan County, Kentucky, the Supreme Court recognized a constitutional right to same-sex marriage. One of Davis's duties as County Clerk was to issue marriage licenses. But she believed same-sex marriage was immoral, so she stopped issuing them. Plaintiffs, two couples who sought licenses and were rebuffed, sued her for depriving them of their right to marry.

         But Davis claims she is immune from suit, which complicates matters. That's because the law treats Davis not as one person, but as two: an official and an individual. The doctrine of sovereign immunity shields Davis as an official if, when refusing to issue marriage licenses, she acted on Kentucky's behalf-but not if she acted on Rowan County's behalf. And the doctrine of qualified immunity shields Davis as an individual if she didn't violate plaintiffs' right to marry or, if she did, if the right wasn't clearly established when she acted.

         And this case comes to us at a relatively early stage. The district court hasn't issued a final ruling, a trial hasn't occurred, and the parties haven't completed discovery. That means we don't look at evidence; we look at allegations. So we ask not whether Davis definitively violated plaintiffs' rights but whether they adequately allege that she did.

         The district court ruled that Davis, as an official, acted on Kentucky's behalf, meaning sovereign immunity protected her. Plaintiffs dispute that ruling. The court also ruled that plaintiffs pleaded a plausible case that Davis, as an individual, violated their right to marry and that the right was clearly established, meaning qualified immunity didn't protect her. Davis disputes that ruling. We agree with the district court on both issues and therefore affirm.

         I.

         In the summer of 2015, Kim Davis was the County Clerk for Rowan County, Kentucky. One of her responsibilities was to issue marriage licenses. But same-sex marriage offended her religious beliefs, so when the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), Davis took matters into her own hands.

         One day after the Supreme Court released Obergefell, Davis stopped issuing marriage licenses. She didn't discriminate against same-sex couples, though; she stopped issuing licenses altogether. That meant that when plaintiffs-two same-sex couples who lived in Rowan County-sought marriage licenses from the Clerk's Office, they couldn't get them.

         With a constitutional right to marry yet no ability to obtain marriage licenses within Rowan County, plaintiffs sued Davis in her individual capacity and in her official capacity as County Clerk. One of the couples also sued the County. Plaintiffs sought damages for Davis's violation of their right to marry.

         In a different lawsuit over Davis's conduct (which is before us on a challenge to an attorney's-fees award), the district court enjoined Davis from refusing to issue marriage licenses. With the injunction in place, plaintiffs obtained marriage licenses.

         A challenge to that injunction came to our court. Before we could rule on the dispute, however, Kentucky legislators changed the law in a way that convinced Davis to issue licenses without objection. See 2016 Kentucky Laws Ch. 132 (SB 216). So Davis asked us to dismiss her appeal, which we did. Miller v. Davis, 667 Fed.Appx. 537, 538 (6th Cir. 2016).

         The district court read our opinion so broadly that it dismissed plaintiffs' cases as well, ruling that there was no longer a legal dispute because Davis had agreed to issue marriage licenses. Two plaintiffs appealed the dismissal, and we reversed because they sought damages for the past deprivation of their right to marry, which meant there was still a dispute to resolve. Ermold v. Davis, 855 F.3d 715, 720 (6th Cir. 2017).

         On remand, the district court also re-opened the other two plaintiffs' case. Davis then moved to dismiss the complaints, arguing that sovereign immunity shielded her from suit in her official capacity and that qualified immunity shielded her from suit in her individual capacity. The district court sided with plaintiffs on the qualified-immunity issue (ruling that the doctrine didn't shield her) and with Davis on the sovereign-immunity issue (ruling that the doctrine did).

         Davis appealed the denial of qualified immunity, and plaintiffs appealed the grant of sovereign immunity. After the parties submitted their briefs, Elwood Caudill, Jr. replaced Davis as Rowan County Clerk and thus ...


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