Alternative Remedies For Contempt of Court By Public Officials

Kim Davis, the county clerk of Rowan County, Kentucky has been making headlines because of her defiance of the U.S. Supreme Court ruling mandating that same sex couples be permitted to marry, despite the fact that her job description, as an elected official, includes issuing marriage licenses.

She claims that she is motivated by her religious convictions that same sex marriage is against God's will, despite her own hypocritical life history of four marriages, adultery and more.  Her morbidly overweight, fashion challenged "white trash" appearance and demeanor in the rural hill county of the former "border state" in the Civil War, calls attention to the deep the cultural divide between those who fight for gay rights, and those who oppose it.

As a local government elected official, Kim Davis can't be fired by anyone else in the government. In Kentucky, unlike Colorado and many other Western states, she probably can't even be removed from office with a recall election called by petitioning voters.  And, I'm not aware of many local governments that provide for the impeachment of local government officials.  Moreover, she was elected for a reason.  The people of her county don't like same sex marriage either, and have no particular interest in taking efforts that would force her to comply with the federal constitution, as interpreted by the U.S. Supreme Court in Washington D.C. and her local federal district court judge appointed by the President with the approval of the U.S. Senate and her two local Senators.  She is mostly her own boss, although she is probably dependent upon elected county commissioners to fund her state mandated tasks through local property tax collections.

Most of the time, when the law or a court orders a government official, or anyone for that matter, to do something, they comply.  When the order involves money owed, often the cooperation of the person subject to the order isn't necessary.  The court can authorize someone to seize the assets and earnings of the subject of the order with or without that person's cooperation.

But, when the power to do something is vested in a particular person and only that person, either by virtue of holding a public office, or having knowledge or authority that no one else does, refuses to comply with this kind of court order (called an "injunction"), the primary remedy to enforce that violation is to jail or fine that person until they comply.  This power is called the "contempt of court" power, and dates back to the English tradition that judges were merely stand ins for local lords or kings who near absolute power of their subjects who came before them with disputes as they held court asking for a resolution from their local lord who held all executive, legislative and judicial power.

While the threat of going to jail can be effective, and these days it is most often used to encourage recalcitrant ex-spouses and baby daddies who are self-employed or have hidden assets to voluntarily pay over what they owe, it is a crude instrument.  For certain classes of people, like journalists protecting their sources, or ideological politicians who relish the publicity that comes from being a martyr for the cause, or witnesses fearing that they'll be snuffed by gang members if they snitch, threatening to jail or fine someone isn't a very effective way of securing their compliance, and can atmospherically turn someone disobeying a court order into a victim.  Fines also only work if the person to be compelled has money from which it is feasible to collect the fine.

Some public officials are bonded, which is to say that they have to go to a private person or company who promises to pay any fines or judgments incurred in connection with their office.  A bonded official forfeits the position and is automatically removed from office if the bond is exhausted, so fines can be used to remove a bonded official from office unless some private benefactor is willing to pay them.  But, the tradition of bonding public officials is an old one that has been abandoned in many places out of the concern that it would prevent less affluent individuals from running for public office.

Now, Kim Davis has a choice available to her that can immediately free her from jail without having to compromise her principles (which her deputies are busy violating in her absence while in jail anyway, since they are not willing to be martyrs for her cause).  If she resigns from office, she has no obligation to issue same sex marriage licenses, and she will be immediately released from jail and not required to do anything that she feels violated her principles or religious beliefs.

The trouble is, that in the mean time, the contempt of court power puts a public elected official in jail for exercising her religious beliefs, and no matter how effectively voluntary this is (although Kim Davis no doubt needs her public official's paycheck to make ends meet and would be out of a job if she resigned), the contempt of court tool, as currently designed, makes her effectively a prisoner of conscience.

A better solution would be to offer judges more options than jail or a fine to enforce their court orders when someone legally required to do so defies those court orders.

In the case of a public official, like Kim Davis, who defies a court order, it would probably be better if the court were given the authority to suspend her from service in public office (with or without pay) for defying her legal duties and the U.S. Constitution, until such time as she stated that she was willing to comply with her duties and did so upon reinstatement.  This power might even extend to the power to remove someone from office entirely if the suspension remained in force for a sufficient length of time without winning repentance from the offending public official.

In conjunction with this, or in the alternative, the court could vest someone else with the authority to carry out the public acts that the defiant public official did not.  A narrow version of this power already exists authorized in Colorado by Colorado Rule of Civil Procedure 70, which allows the court to authorize the clerk of the court to sign a document on behalf of someone who refuses to do so voluntarily in violation of a court order.  Similarly, when a property owner with a mortgage or business subject to secured debt fails to pay as agreed, a court will often appoint a receiver or trustee to manage the property or business in lieu of the true owner of the property.

These solutions would pretty much always work in the case of public officials, because unlike witnesses or private individuals with the sole authority over foreign assets protection trusts or secret passwords or safe combinations, public officials can pretty much always be replaced by someone else who is willing to comply with a court order (as the deputy clerks in the office of Kim Davis were in this case).

One or both of the options for sanctioning contempt of court would reduce the extent to which the ugly and sympathy generating scene of imprisoning someone who is wiling to go to jail rather than complying with a court order, which incarcerates someone for disobedience rather than because the person is a threat to society.  More proportionate and effective sanctions enhance the rule of law and our civic and national virtues.

Jailing someone for their beliefs, even when they can resign to avoid the sanction, raises potential constitutional concerns, and threatens our constitutional values.  But, there is nothing in our constitutional lore to suggest that suspending a public official from office and appointing a replacement until such time as the public official is willing to comply with a court order would raise the same kinds of concerns.  It secures the same result without requiring the cooperation of someone who expressly and often for principled reasons, disagrees with the court's order.

Similar remedies could also be used fruitfully when officers or employees of private companies defy court orders.  Wouldn't it be more appropriate for a court to suspend a corporation's CEO without pay and appoint a receiver for the corporation while he defies a court order to turn over records or direct his corporation to engage in some sort of action, than to jail or fine the CEO as a court might if it is in defiance of a court order under current law?  The former remedy secured compliance with the court order without requiring the cooperation of the disobedient individual.  The latter remedy creates a high profile martyr and allows a powerful, otherwise law abiding individual to defy the government by sheer force of will.

None of this can address the fairly common situation where no one can replace that defiant individual.  But, improved tools to secure government and private entity compliance with court orders more effectively and cheaply and humanely would be a huge step forward, since those governments and entities control a huge share of the nation's power, economic, political and otherwise.