A Perspective on the Kim Davis Case, from One Who Has Been There…

The jailing (and recent release) of Kim Davis, an elected County Clerk in Rowan County, Kentucky is a very interesting and complex case. I once held a somewhat similar position in the Commonwealth of Virginia. Based on my experience and knowledge, Davis’ jailing carries with it a number of unsettling issues. The most important and relevant issue is: ‘What are the implications of this case from the standpoint of self-governance?’ It would be one thing if Mrs. Davis were a bureaucrat. If that were the case, her refusal to comply with relevant laws would undoubtedly end in the County firing her. The real issue at hand in this case is even larger than the issue of same sex marriage. Mrs. Davis is an elected official. The voters in her county elected her to run the County Clerk Office. By jailing her, the court system has deprived the voters of her county the services of the person they elected to represent their interests.

I’m not an expert in Kentucky law, but I do understand the implications from a Virginia law standpoint and I believe that knowledge provides the basis for a deeper discussion into the nature of how laws are enforced and the extent to which voters can influence policy by electing individuals who will enact policies in a manner consistent with their wishes. To a large degree it is a philosophical issue.

In Virginia, there are 5 Constitutional Offices elected in each county/city (unless the voters of a locality have opted out of the system). The 5 offices are, with a brief description in parenthesis: Clerk of Court (maintains records), Commissioner of the Revenue (assesses values of taxable personal property as well as business taxes), Commonwealth’s Attorney (prosecuting attorney), Sheriff (law enforcement), and Treasurer (tax collection and management of local funds). The Commonwealth pays the salaries of these individuals (though a locality can supplement the salary if it chooses to do so). Note, the state government, not the individual locality is ultimately responsible for paying these elected officials. This is very important because it only serves to secure the autonomy of the office holder.

These offices date all the way back to the colonial days and are defined in the state Constitution. The reasoning behind making such offices elected positions is in line with Thomas Jefferson’s belief that government operates best when it is directly accountable to the people. I was elected Treasurer in my locality twice, the second time unopposed. At the time of my first election, I became the youngest Treasurer in Virginia. I speak from experience when I say that you take things much more seriously when you are elected. It makes you directly accountable to the public. Not only can poor service to voters result in you losing your job in the next election, it also puts your good name at stake. It would appear the Kentucky Count Clerks fall under a similar system and has its own locally elected administrative positions.

According to the website of another Kentucky County Clerk:

The third Constitution of the Commonwealth of Kentucky in 1850 established the position of the County Clerk. The County Clerk answers to the Kentucky Constitution, and all the Kentucky Revised Statutes and Administrative Regulations.

The Kentucky Courts, lending institutions, governmental agencies, automobile dealers, real estate agents, and mineral leasing agencies use our offices. We also operate the tax payer’s bank. Collection of taxes, not only for the Commonwealth and the County, also for all the taxing entities that provide invaluable services to our communities, are collected in our offices.

We maintain a close relationship with the Executive branch of the State Government. As laws are passed, we must all work together to meet the needs of our constituents. County Clerk offices are divided into four major branches: elections, vehicles, tax collections, and land records.

The County Clerk performs 186 constitutional duties, such as:

• Elections
• Vehicles
• Delinquent taxes
• Deeds
• Liens
• Marriage licenses
• Mortgages
• Fiscal Court minutes

It would appear that a County Clerk in Kentucky, has duties which overlap with their counterparts in Virginia. This only highlights the importance of the position. A County Clerk in Kentucky performs many of the same duties as the Clerk of Court, Treasurer, and Commissioner of the Revenue do in Virginia localities. That is a lot of responsibility. It should be noted that the Clerk of Court in Virginia localities has the responsibility for issuing marriage licenses.

In my capacity as a City Treasurer I came to view my job strictly in terms of the laws governing my position. It was the only way to keep my sanity. Being a tax collector often meant conflict. If a taxpayer did not pay their taxes on time, it carried with it a seemingly large tax penalty because of quirks unique to Virginia tax law. I often had to hear a variety of explanations and excuses as to why a person had failed to pay their taxes on time. I would listen to such arguments and explain what the law required me to do. This certainly didn’t mollify angry taxpayers. So the next question they would ask would be: “Who is your boss?” My response certainly didn’t make them happy: “I am an elected official. There is no single individual who acts as my boss…my boss is the voters.”

That is what it means to be an elected official. I’m not sure that most people understand the significance of that…I probably wouldn’t had I not served in such a position. From the perspective of the taxpayer, it seemed reasonable to assume that the City Manager, City Mayor, or City Council could overrule my decisions. They couldn’t. What would be the point of electing an official if other elected officials could govern their actions? The reality was that I had autonomy.

Early in my first term, I unilaterally overturned a decision made by my predecessor in which the City attempted to assign extra duties to my employees. Needless to say this did not make me popular with certain members of the City Council. I would do it differently if I had to do it over again, but I still stand by my decision. The City wanted to impose a policy that I felt was detrimental to the primary functions of the Office. As the person elected to run the Office, it was up to me to make decisions I felt would best serve the voters. I must emphasize though, that in my situation I was refusing to enact a policy, not refusing to comply with a law. Mrs. Davis’ situation is entirely different. I didn’t face a situation involving morals or religious beliefs. However, politicians sometimes have to stand their ground or lose respect and credibility. Somewhere in her thought processes she decided to draw a line in the sand.

Though it isn’t a perfect system, I agree with Jefferson. The more people the populace can elect, the better. Contrary to popular belief, the United States is not a Democracy. It is a Republic. If it were a Democracy, every person would get a vote on every issue. This means that the majority could always impose their will on the minority. In a Republic, we elect legislative officials to represent us. Those persons should in turn vote according to the wishes of their constituents. However, they don’t always vote according to the wishes of their constituents. This means sometimes the will of the minority can be imposed on the majority. One can only hope that over time, a fair balance is struck. In terms of the public’s interest being served, it stands to reason that the election of administrative officials in addition to legislative officials, would only facilitate the will of the people being served.

In Virginia, anyone can run for an administrative office if they meet a few basic rules such as residence, voter status, etc. Technically speaking, a person with no relevant experience, education, or background could be elected to an administrative office. The same goes for Kentucky. If a Clerk of Court election in Virginia is at hand, experience and ability are taken with the utmost seriousness. It is the only Constitutional Office that has an 8 year term (the other Offices are 4 year terms) in Virginia. The ramifications of electing an inept Clerk of Court would mean 8 years of sub-standard service, assuming that the official isn’t impeached.

More often than not, it would not matter if an administrative Office in Virginia were held by the most liberal Democrat or the most conservative Republican. The Offices are governed by laws that have nothing to do with political leanings. Nevertheless, sometimes either the Democratic or Republican Parties may field a candidate for such an office to solidify political power in a particular jurisdiction. Nevertheless, the most important qualification is the ability of the office-seeker. Prior to her election, Mrs. Davis served many years as a deputy in Rowan County Clerk of Office. She actually succeeded her mother to the position. It stands to reason she was elected because she had more experience in the Clerk of Court’s Office than any other candidate. That is a legitimate reason to be elected to such an office.

I don’t know Mrs. Davis personally and don’t care about her personal life. I only know what anyone else who reads the news knows. Only she knows her motivations. Having been in an elected administrative position, I do know what it’s like to be in such a position, so my views are more from a procedural/legal standpoint, not from an individual personality standpoint.

Personally, I am greatly worried about the impact the Supreme Court’s ruling on same-sex marriage will have on religion. Could Clergy be required to marry same-sex couples as a condition for them to have legal authorization to perform wedding ceremonies? From a larger perspective, is it a signal that the judicial system has highjacked the democratic processes of the Republic? Same sex marriage was not legalized by a new law expressly stating what constitutes a marriage. Instead, it was legalized by the Supreme Court’s interpretation of what existing laws are intended to mean.

I can see the situation in Kentucky from different perspectives:

1) What are Mrs. Davis’ duties to the public?

I resigned during my second term. My reason for doing so was to pursue my Ph.D. I did not leave out of protest and my Office was running well when I left. Nevertheless, I was elected to serve in a specific position and I left before my term was up. I think it’s important to note this because I still feel guilt over it to this day. I let people down. I did not make my decision lightly. Ultimately I helped my long-term successor win the Office. It is in good hands, but by leaving early I did deprive the voters of the person they elected. I speak of this because it gives me insight into Mrs. Davis’ situation. I also don’t want to sound hypocritical.

Rowan County is not very large. Therefore it stands to reason that those who serve in the Clerk of Court’s Office are hardly used to the national spotlight being focused upon them. Undoubtedly the press and controversy created by Mrs. Davis’ stance has had to have had a major impact on the office. It is beyond my comprehension as to how the office could operate efficiently under such pressure. Upon her election, Mrs. Davis herself said, “I will dedicate myself to the people and the office while serving my term.”

I don’t doubt for a second the sincerity of that statement. It is a tremendous feeling when the voters honor you in such a manner. It gives you every incentive to want to do a great job. Unfortunately, unforeseen events can sidetrack you from that level of commitment. I doubt Mrs. Davis anticipated the situation she now faces. At some point along the way should she have said ‘this is getting out of hand, I need to think about how my actions are effecting my Office and in turn the citizens?’ No matter how much one disagrees with the Supreme Court, resisting its decision is a losing battle. She could have made her point and stayed true to her beliefs had she simply resigned in protest. It would certainly not be the ideal way to go out and I can appreciate her reticence to resign.

Also, Mrs. Davis was not elected to her position in the capacity of a religious leader. Wouldn’t it make sense to view her duties strictly from the standpoint of law? It’s a separation of church and state issue. She could issue same-sex marriage licenses in her capacity as Clerk of Court, but totally disagree with it personally and even actively oppose it publicly. Is this a situation where one needs to separate their role as an elected official from their role as a private citizen?

One absolutely perplexing matter in this case is that Mrs. Davis is a Democrat. She won the Democratic primary for Clerk of Court by only 23 votes. She then defeated her Republican opponent in the actual election by a 53% to 47% margin. Given that she was elected as a Democrat, wouldn’t it be reasonable to assume she would stick with the party line and be pro same-sex marriage? What is her stance on abortion? She wasn’t elected in a landslide, so it doesn’t seem that she has a mandate under which she could justify acting so boldly.

2) Has the Judicial branch of government set another very dangerous precedent?

This document (linked HERE) provides cause for great alarm. In short, while Clerk of Courts are elected, they ultimately fall under the control of the Chief Justice of the Supreme Court of Kentucky. This is highly disturbing. No elected official should ever be put in a subservient position to the judiciary. It begs the question: Who is in control? The voters or the courts?

Another comment made by Mrs. Davis upon her election was, “I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter.”

One could argue that Mrs. Davis has remained true to her word. What statute is Mrs. Davis violating in this case? Section 233A of the Kentucky Constitution specifically defines marriage as between a man and a woman. This change was made by a special election and passed with 75% voter support. The U.S. Supreme Court essentially made this law invalid. Still, there is no statutes in Kentucky that Mrs. Davis is specifically violating. She is only violating an interpretation of law (as defined by the U.S. Supreme Court).

The judge who ordered Mrs. Davis to be jailed completely overstepped their bounds. The document above outlines the procedures to handle a Clerk of Court who is acting in inappropriately. In Mrs. Davis’ case a commission should have been formed which recommended a course of action to the Chief Justice of the Kentucky Supreme Court. The remedies range from suspending Mrs. Davis without pay to removing her from Office. It doesn’t mention jail as an option.

Given the overwhelming support for the marriage defense act in Kentucky, one could argue that Mrs. Davis is acting in line with the documented wishes of the public she serves. Her refusal to issue marriage licenses to same-sex couples could be viewed as a policy matter specific to her administration. If Kentucky voters had passed law in favor of same-sex marriage, then her refusal to comply would be more problematic. The overwhelming issue is the fact that 5 people imposed a law on the entire country. Love didn’t win…nobody won. How can one claim ‘victory’ when the issue at hand was imposed instead of legitimately accepted? Whether I agree or disagree with a law is less important to me than whether or not it reflects the will of the public. I am less afraid of a rule voted into law than a rule that is imposed.

The Clerk of Court has 186 Constitutional duties. She is violating only one. If she is performing the other 185 duties appropriately, then she is being jailed and her Office is being trampled upon because she violated only one ‘rule’ that technically isn’t even in the Kentucky Constitution. Isn’t it a bit over the top to jail someone for a hypothetical score of 185 out of 186 duties performed correctly? The other duties of her office are extremely important and especially for a Clerk of Court position, having an experienced person in charge is essential. Plus, those who were fighting Mrs. Davis’ policies were not attempting to be vindictive. They were not asking for her to be jailed, only fined. In her case, a fine would have been appropriate.

Also, by jailing Mrs. Davis, who holds an office charged with collecting taxes, the court has deprived Rowan County of its tax collector. Hence, once could go as far as to argue her jailing violates the doctrine of ‘no taxation without representation.’

Had I ever found myself in Mrs. Davis’ position when I was Treasurer, under Virginia law, I would have had several options (none of which I ever considered exercising). First, I could have fired anyone in my office, especially if they were violating my political policy. Regardless of whether Mrs. Davis’ political policy is legal or not is besides the point. If her moral conviction is so strong, does she have the right to fire any employees who fail to comply with her directives? I don’t know Kentucky law, but it stands to reason if the Office is held by an elected official, they should have discretion over whom they employ. Second, I had the authority to open or close the Treasurer’s Office…meaning if it snowed, I could close the office earlier than the general City government or close it even if the general City government remained open. Does Mrs. Davis have the authority to close her office altogether and refuse to open it? Jailed or not, she is still the Clerk of Court.

The above options would be extreme. The real question is whether such actions are warranted? The issue in question regarding Mrs. Davis is ultimately going to be faced by other people, whether they are public or private employees. If Mrs. Davis has the support of her constituents, then one could argue that if someone is going to have to be the first to fight a law which was imposed, then it might as well be her. What would be the implications if Mrs. Davis actually won re-election? It would be a case where the courts are saying one thing and the people have made it clear they want something else? Does it mean we are no longer a Republic, but a Judicial dictatorship? I don’t care who Mrs. Davis is or what kind of person she is…I do care that she was elected to an Office and is being prevented from running it how she sees fit. Strip away the issue at hand and think of it from the perspective of an elected official being punished for failure to obey the courts, not their constituents…for failure to obey an interpretation, not an actual stated law. Maybe that is indeed something to fight against.