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(62,444 posts)
Tue Jun 30, 2015, 08:30 PM Jun 2015

Here's what happens when clerks refuse [View all]

While there have been interesting visions of "lock 'em up" or "send in the troops", the actual process in these instances has a little more sting, and a lot less "martyrdom potential".

So, what do you do when a clerk refuses to issue a lawful marriage license on the basis of their religious beliefs?

Contrary to what some believe, it is not directly a "crime" to disobey a court order, and in a direct sense, this clerk has not been "ordered" by any court to issue a marriage license in the first place.

However, it is now the law of the land that persons of the same sex who are otherwise lawfully able to be married (age, consanguinity, consent, residence, whatever) what the clerk is doing is a deprivation of civil rights.

When you have been deprived of your civil rights by a government official, the relevant law is 42 USC 1983 (that's chapter 42 of the United States Code, Section 1983), typically called a "1983 action":

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Okay, so that says "you can sue the clerk".

But, as they say on Survivor, "You want to know what you're playing for?"

Compensatory damages, punitive damages, and, in a rare departure to the normal rules of litigation in the US - attorney's fees - under 42 USC 1988:

"In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction."

And, oh yeah, it's clearly in excess. Mind you a "reasonable attorney's fee" does not have to be the actual hours at the billable rate, but what would be "reasonable". If a top shelf NY firm would charge $10,000 to file, then that's "reasonable". The system is run by lawyers, and they can be downright unreasonable about what is a "reasonable attorney's fee".

That, incidentally, is how civil rights litigation organizations are funded, apart from donations.

So, you fill in the relevant names, dates and places in a form complaint, pay your $300 filing fee (also included in the prize package), along with the form motion for emergency injunctive relief, and serve it on the clerk.

The clerk then checks up the line and says, "Hey, is this real? Am I covered for this?" and finds out, in most instances, that the county will not pay their legal fees or cover their liability. The clerk then calls his or her friend the lawyer who says, "Issue the license or get out your checkbook."

Now, where it gets real fun is when the clerk decides he/she wants to be a hero. The clerk is going to lose on the motion for injunctive relief (ordering the clerk to issue the license) and is then going to have to decide how many days they want to spend locked up on contempt before (a) they issue the license, (b) they resign their post or (c) someone else in that county office is empowered to issue the license and they do so. Both (b) and (c) render holding the clerk on contempt to be moot, since the point of contempt is to gain compliance with the order, and not some "penalty" for non-compliance.

And this is what just played out in a county in Texas. While the Texas AG issued a much-hyped memo to clerks saying that they, personally, do not have to issue a license, the less-hyped portion of that memo says that someone ELSE in the office with the same power can issue it.

Karen Phillips, the Smith County (Texas) Clerk, just learned this the hard way:

Suit filed Friday. Clerk folded on Monday.

Man, if I didn't have my hands full this week, I'd get a van, a couple, and take a road trip into Dumbfuckistan.

83 replies = new reply since forum marked as read
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If I drive, and we split the fees, can you go next week? nt msanthrope Jun 2015 #1
You know... jberryhill Jun 2015 #5
Good luck with the TRO....And I'm not giving up hope that some jurisdiction msanthrope Jun 2015 #10
I'm not sure... jberryhill Jun 2015 #13
Hmmm... jberryhill Jun 2015 #12
If I had a nickel for every Internet referral...... msanthrope Jun 2015 #53
Hello Jon Berykil Man of Distinction Jul 2015 #83
Me too... For Freddie Jul 2015 #75
Awesome explanation, so i will stop asking to arrest them or send in the troops LOL this is much randys1 Jun 2015 #2
Absent the drama of handcuffs and guns... jberryhill Jun 2015 #7
The clerk negoldie Jul 2015 #67
negoldie - check your DU mail. I sent you a note regarding your situation. Stonepounder Jul 2015 #72
You sir, are a lawyer! riderinthestorm Jun 2015 #3
Most lawyers are distinctly aware... jberryhill Jun 2015 #6
so is that lawyer speak for KatyMan Jun 2015 #15
Lawyer speak for "let's all agree to make this go away" Ms. Toad Jun 2015 #34
A great post, jberryhill! longship Jun 2015 #4
In reality, there is more than one clerk in the county offices dixiegrrrrl Jun 2015 #8
So, you DID take the sig line jberryhill Jun 2015 #14
And just now, in Breaking News: dixiegrrrrl Jun 2015 #36
This particular county clerk.... Doc Holliday Jul 2015 #66
I'd get a van, a couple, and take a road trip into Dumbfuckistan. Kalidurga Jun 2015 #9
When you go, make sure you have a bumper sticker that saya "Jesus Was A Liberal." DamnYankeeInHouston Jun 2015 #42
On a rainbow colored background too Kalidurga Jun 2015 #50
Here ya go jberryhill Jun 2015 #52
In certain parts of America people have started to mate with vegetables. Kalidurga Jun 2015 #54
He said ketchup was a vegetable.. DamnYankeeInHouston Jul 2015 #61
Yikes even worse it's mostly sugar Kalidurga Jul 2015 #79
Not Reagan but.... SouthernLiberal Jul 2015 #77
Mine too Kalidurga Jul 2015 #78
... Major Nikon Jun 2015 #11
Pick me a my boyfriend up in Chicago. Hassin Bin Sober Jun 2015 #16
What did you do with the old one? jberryhill Jun 2015 #17
Last year's model? She only wears that when she doesn't care how she looks. Hassin Bin Sober Jun 2015 #19
Unless she's going for top dog: jberryhill Jun 2015 #27
Damn! Ed Sullivan, re-incarnated! dixiegrrrrl Jul 2015 #73
Whoa jberryhill Jul 2015 #81
See? That's why I let my lawyer do the talking. Hassin Bin Sober Jun 2015 #20
Thank you for sharing this . GeorgeGist Jun 2015 #18
Would this work in NC? yardwork Jun 2015 #21
Yes it will work in NC jberryhill Jun 2015 #22
It's not legally void yet. They just passed it. yardwork Jun 2015 #26
Lots of unconstitutional state laws remain on the books jberryhill Jun 2015 #32
I understand, but this particular law wasn't affected by the SC decision. yardwork Jun 2015 #40
They passed a nothing law. FeRDNYC Jun 2015 #55
Federal court is like honey badger on this NC law jberryhill Jun 2015 #56
Nice! FeRDNYC Jul 2015 #58
Really? MFrohike Jun 2015 #23
I haven't thought that part entirely through jberryhill Jun 2015 #25
For budgetary reasons, state entities generally cannot accept unlimited liabilty. Ms. Toad Jun 2015 #38
That would make sense MFrohike Jun 2015 #49
I would be surprised if that were an option, Ms. Toad Jul 2015 #59
It may be a consequence MFrohike Jul 2015 #60
That's similar to the law NC just passed. yardwork Jul 2015 #62
If they refused on religious grounds, SCVDem Jun 2015 #24
Excellent summary of 1983 claims in a nutshell. SunSeeker Jun 2015 #28
They are just daring somebody to sue them npk Jun 2015 #29
I had a clerk pull this crap on me in 1979 in Texas Manifestor_of_Light Jun 2015 #30
What a sexist pig that clerk was. He should have been fired. nt raccoon Jul 2015 #65
Thank you!!! This is very informative and extremely interesting. I had been wondering RKP5637 Jun 2015 #31
In some places it is a criminal offense to refuse to carry geek tragedy Jun 2015 #33
Two choices on those other jurisdictions jberryhill Jun 2015 #37
Here's the KY law. geek tragedy Jun 2015 #39
Dang jberryhill Jun 2015 #44
Annnnndd.... this just in jberryhill Jun 2015 #48
Nicely done! n/t Ms. Toad Jun 2015 #35
What I want to know is Proud Liberal Dem Jun 2015 #41
the hood county texas was also refusing rdking647 Jun 2015 #43
K&R! Omaha Steve Jun 2015 #45
And to be clear a clergyman still has the right to refuse to marry a same sex couple. Kablooie Jun 2015 #46
Absolutely correct jberryhill Jun 2015 #47
Let's say a couple was affected by a clerk refusing to issue a license Trekologer Jun 2015 #51
Nicely done. joshcryer Jul 2015 #57
Score! 1983 actions, I can see a backlog in Dumbfuckistan. lonestarnot Jul 2015 #63
A couple of clients jberryhill Jul 2015 #64
Very informative OP d_legendary1 Jul 2015 #68
As always, a great post by Mr. B. Flatulo Jul 2015 #69
Precisely. And that's how it's done. MineralMan Jul 2015 #70
This is the best post I've read in quite a while Richardo Jul 2015 #71
I guess a court clerk giving us "corporate personhood" laws gives them inflated egos?... cascadiance Jul 2015 #74
Here's what I find is ironic. That somehow marriage equality will cause Christians to be persecuted LynneSin Jul 2015 #76
My firend calls her city in central Connecticut "Dumbfuckistan". KamaAina Jul 2015 #80
If clerks give their notice due to prejudice, are they still liable? csziggy Jul 2015 #82
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