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Removing Recalcitrant County Clerks in Kentucky Shawn D Kentucky Law Journal Volume 105 | Issue 2 Article 3 2017 Removing Recalcitrant County Clerks in Kentucky Shawn D. Chapman Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the State and Local Government Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Chapman, Shawn D. (2017) "Removing Recalcitrant County Clerks in Kentucky," Kentucky Law Journal: Vol. 105 : Iss. 2 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol105/iss2/3 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Removing Recalcitrant County Clerks in Kentucky Shawn D. Chapmani ABSTRACT Events in 2015 surrounding Rowan County Clerk Kim Davis showed how removing county clerks from office is not a simple task in Kentucky. At present, removal can be accomplished only by the same dfficult means required to remove a state-wide executive offlcer, meaning the county clerk has the same tenure as the governor and attorney general. Historically, however, the county clerk was removable by other, lesser means, as were all other county officers. Today, the other county offcers are stillremovable by those lessermeans, but the county clerk is not, resultingin a removal gap. That gap first appearedin 1976 and, based on a review of the available historical materials, was the result of mere oversight when the Kentucky Constitution was revised substantially to implement a new judicial branch. The gap should be filed, though it will likely require a constitutional amendment. I Attorney in Lexington, Kentucky. J.D., University of Kentucky College of Law, 2002; B.A., University of Kentucky, 1999. The author would like to extend his gratitude to his wife, Jessica Moss, and to Stefan Bing, Jason Bailey, and John Roach for their helpful comments, criticism, and encouragement; and to the staff of the Kentucky State Law Library (Jennifer Frazier, Eric Henninger, and Charles Brock) for their invaluable assistance in finding and procuring many of the research materials used in writing this Article. He may be reached at [email protected]. 261 262 KENTUCKY LAW JOURNAL Vol. 105 TABLE OF CONTENTS ABSTRACT ...................................................... 261 TABLE OF CONTENTS .................................................. 262 INTRODUCTION .................................................... 264 I. THE COUNTY CLERK'S ROLE IN KENTUCKY..................................... 267 II. KENTUCKY'S HISTORICALLY COMPREHENSIVE SYSTEM OF OFFICER REMOVAL ............................. 276 A. The Upper Tier: Once and Future Officers.................................. z7 i. Impeachment ...................................... 27 ii. Vote Buying, Felonies, and High Misdemeanors-Oh My! ................. ............... 286 B. The Lower Tier: Removal ofSpecific Officers............................. 295 i. The General Assembly: The Power of Each House to Expel Its Own Members...............................296 ii. The Judiciary: Removal by Address, and Retirement and Removal..................................299 iii. County Officers: Removal by Conviction for Malfeasance, Misfeasance, or Nonfeasance ........ ....... 314 iv. Court Clerks: Removal by the "Supreme Court".....................322 C. Removal Conclusions............................. .......... 329 III. THE MYSTERY OF THE MISSING REMOVAL MECHANISM FOR COUNTY CLERKS. ................. 331 A. The Removal "Gap"and Howit Came to Be...............................332 i. The State of the Kentucky Judiciary Leading Up to 1975 and the Push for Reform.......................332 ii. The Successful Judicial Article...............................337 B. Why Did the Gap Come to Be?................................................... 338 i. The Materials Leading Up to the Amendment ..................... 338 2. The KCJI Questionnaire............... ............. 339 b. The InitialDraft of the ProposedAmendment .............. 342 c. The KCJs EducationalMaterials.................................. 342 d. The KCJs GrantApplcation ....... ................ 346 e. Newspaper and Television Accounts..............................346 f Conclusion ................................ 348 ii. The 1966 Proposed Constitution .................... 348 iii. James Amato Interview .............................. 351 IV. THE PROBLEM AND SOLUTIONS PROPOSED...................352 A. The Removal "Gap"for County Clerks....................352 B. The Solutions.... .......................... ............ 353 i. Legislative Options-"High Misdemeanors"..........................353 ii. Constitutional Options. ........................... 357 a. Removal by the Supreme Court........ ............ 357 b. Removal by the FiscalCourt .................... 358 2016-2017 Removing Recalcitrant County Clerks in Kentucky 263 c. ExpandingSection 227 to Include the County Clerks .....................- 359 C. The ProposedSolutions Applied................. ........... 360 CONCLUSION ...........-................................ 362 264 KENTUCKY LAWJOURNAL Vol. 105 INTRODUCTION On Thursday, September 3, 2015, Judge David Bunning held Kim Davis, the now-famous county clerk of Rowan County, Kentucky, in contempt of court and ordered her jailed' for refuising to issue marriage licenses to same-sex couples in the wake of the United States Supreme Court's ruling in Obergefell v. Hodges.2 She did not stay in jail long,' and her case has since been rendered moot,' but the situation was nonetheless troubling: incarcerating a public official because she refused to comply with a court order.s Though courts commonly employ jailing for contempt, it is nonetheless a fairly extreme, and inherently coercive, remedy.6 But why did it come to this? Not why in the broad sense of why the district court ordered Davis to issue marriage licenses or whether that was a correct decision. Rather, the concern is with a more limited question. Regardless of the ' See Alan Blinder & Tamar Lewin, Clerk ChoosesJailOver Deal on Gay Unions, N.Y. TIES, Al (Sept. 4, 2015), http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html [https://perma.cc/47TM-B44H] (reporting Davis jailed for contempt on Thursday, September 3, 2015). Judge Bunning had previously issued a preliminary injunction requiring Davis to issue marriage licenses to same-sex couples, see Miller v. Davis, 123 F. Supp. 3d 924, 944 (E.D. Ky. 2015), and she subsequently violated the injunction, resulting in the contempt finding, see Blinder &Lewin, supra. 2 See Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 3 See Alan Blinder & Richard P6rez-Pefia, R6m Dais, Released From KentuckyJai, Won't Say if She Will Keep Deling Court, N.Y. TIMES (Sept. 8, 2015), http://www.nytimes.com/2015/09/09/us/kim-davis-same-sex-marriage.html [https:/perma.cc/7NTX- DRRG] (reporting Davis released from jail after five nights) [hereinafter Blinder & Parez-Pefia, Kim Davis, Released from KentuckyJaill. 4 See Miller v. Davis, No. 15-5880, 2016 WL 3755870, at *1 (6th Cir. July 13, 2016) (ordering case dismissed as moot because of change in Kentucky law about the content of marriage licenses). s This Article expresses no opinion on whether Judge Bunning acted correctly in holding Davis in contempt or even whether he properly applied Obergeel. The interest here is in exploring the removal process for Kentucky's state and county officials. 6 See, e.g., Young v. U.S. er rel. Vuitton et Fils S.A., 481 U.S. 787, 822 (1987) (Scalia, J., concurring in judgment) (noting that contempt proceedings allow judges to exercise legislative, executive, and judicial functions, creating "the prospect of 'the most tyrannical licentiousness'" (quoting Anderson v. Dunn, 19 U.S. 204, 228 (1821))); Fisher v. Pace, 336 U.S. 155, 167 (1949) (Murphy, J., dissenting) ("The contempt power is an extraordinary remedy. .. ."); SEC v. Life Partners, Inc., 912 F. Supp. 4, 11 (D.D.C. 1996) (noting "the 'extraordinary nature' of the remedy of civil contempt" (quoting Joshi v. Profl Health Serys., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987))); Nat'l Labor Relations Bd. v. Shurtenda Steaks, Inc., 424 F.2d 192, 194 (10th Cir. 1970) (describing civil contempt as a "severe" remedy); Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993) (noting that power "to enforce [a court's] judgment by means of incarceration of a person who is found in contempt ... is extraordinary"); see also Margaret Meriwether Cordray, Contempt Sanctions and the Excessive Fines Clause, 76 N.C. L. REV. 407, 416 (1998) ("Although only the minimal civil protections apply in coercive contempt proceedings, the ability of judges to impose severe, even crushing, coercive sanctions is not constrained in any significant way."); Philip A. Hostak, International Union, United Mine Workers v. Bagwell: A ParadigmShiftin the DistinctionBetween Civil and Criminal Contempt, 81 CORNELL L. REV. 181, 184 n.17 (1995) ("Because of the limitless and open-ended nature of coercive sanctions, coercive contempt can be extremely harsh, particularly for those whose disobedience is predicated on ethical or religious principles .... ). 206-=07 Removing Recalcitrant County Clerks in Kentucky 265 specifics of Kim Davis's case,7 there can be little doubt county clerks can and do commit misconduct of various sorts in office, thereby raising serious questions about whether they should continue to hold office. Historically,
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