Case: 15-5880 Document: 77-1 Filed: 01/11/2016 Page: 1 (1 of 17)

Consolidated Case Nos. 15-5880, 15-5961, 15-5978

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APRIL MILLER, PH.D., KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN Plaintiffs/Appellees v. KIM DAVIS, INDIVIDUALLY Third-Party Plaintiff/Defendant/Appellant v. MATTHEW G. BEVIN and WAYNE ONKST, IN THEIR OFFICIAL CAPACITIES Third-Party Defendants/Appellees

Appeal from United States District Court for the Eastern District of Kentucky Case No. 15-cv-044-DLB Honorable David L. Bunning, Presiding

MOTION TO DISMISS CLAIMS ON APPEAL AGAINST STATE APPELLEES and MOTION FOR EXPEDITED CONSIDERATION

WILLIAM M. LEAR, JR. PALMER G. VANCE II STOLL KEENON OGDEN PLLC 300 West Vine Street, Suite 2100 Lexington, Kentucky 40507 (859) 231-3000 Counsel for Appellees Governor Matthew G. Bevin and Commissioner Wayne Onkst in their Official Capacities

January 11, 2016 Case: 15-5880 Document: 77-1 Filed: 01/11/2016 Page: 2 (2 of 17)

Come the third-party defendants/appellees Matthew G. Bevin, in his official capacity as , and Wayne Onkst, in his official capacity as

State Librarian and Commissioner of Kentucky Department for Libraries and

Archives (“KDLA”) (collectively “State Appellees”), by counsel, and pursuant to 6

Cir. R. 27 respectfully move the Court to dismiss the claims on appeal against them. In light of an executive order issued by Governor Bevin on December 22,

2015, there is no longer any justiciable controversy between Third-Party

Plaintiff/Appellant Kim Davis (“Davis”) and the State Appellees. Therefore, the

State Appellees must be dismissed from this consolidated appeal, and Case No. 15-

5961 must be dismissed in its entirety.1 State Appellees further move the Court to expedite consideration of this motion.

I. FACTUAL & PROCEDURAL BACKGROUND

Davis’ claims against the State Appellees are set out in the Third-Party

Complaint, which alleges only official capacity claims against the offices occupied by the State Appellees. [DE 34, Third-Party Complaint, Page ID 745]. First,

Davis seeks declaratory and injunctive relief from enforcement of “Kentucky’s marriage policies” – namely, relief from any obligation to issue marriage licenses to qualified same-sex couples on a form that bears her name. [Id. at ¶¶ 26, 46-147;

1 As this appellate action involves review of only interlocutory orders, the District Court retains jurisdiction over the merits of the case. See, e.g., United States v. Price, 688 F.2d 204, 215 (3d Cir. 1982). State Appellees are simultaneously moving the District Court to dismiss Davis’ Third-Party Complaint against them.

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Page ID 753-54, 759-73]. Second, Davis alleges the State Appellees are required to indemnify her for any damages she may ultimately owe the plaintiffs/appellees.

[Id. at ¶¶ 43, 44; Page ID 758].

Davis filed a Motion for Preliminary Injunction against State Appellees, which the District Court ordered stayed pending this Court’s review of the District

Court’s ruling on Plaintiffs/Appellees’ Motion for Preliminary Injunction. [DE 58,

Order, Page ID 1289]. Contending the District Court actually denied her request for injunctive relief, Davis appealed from the stay order in the matter designated as

Case No. 15-5961. [DE 66, Notice of Appeal, Page ID 1471-76]. This action has been consolidated with two other interlocutory appeals: Case No. 15-5880 regarding the Order granting Plaintiffs/Appellees’ Motion for Preliminary

Injunction and Case No. 15-5978 regarding the Order finding Davis in contempt.

While Davis has named the State Appellees as parties to the latter two appeals, neither involves claims directed against the State Appellees.

On December 22, 2015, Governor Bevin issued Executive Order 2015-048

(the “Executive Order”) that prescribes a revised marriage license form that does not contain the name of the county clerk under whose authority the license is issued. See Ky. Exec. Order 2015-048 (attached as Exhibit 1). The Executive

Order directs the KDLA to publish the revised marriage license form to all county clerks immediately. Id. Davis’ attorneys have stated that the Executive Order “is

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directly what our client Kim Davis has been requesting” and “will enable [Davis] and other county clerks to do their jobs without compromising religious values and beliefs.” See Press Release of (attached as Exhibit 2).

As Davis has conceded, the Executive Order removes any actual controversy that previously existed between her and the State Appellees. Davis’ claims against the State Appellees are moot and barred by the Eleventh Amendment.

Accordingly, the State Appellees must be dismissed from this consolidated appeal, and Case No. 15-5961 must be dismissed entirely.

II. ARGUMENT

A. Davis’ Claims Against State Appellees Are Barred by the Eleventh Amendment and Are Moot.

The Eleventh Amendment provides that an “unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). Davis asserts claims against the State Appellees solely in their official capacities. [DE 34,

Third-Party Complaint, Page ID 745]. “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)

(citation omitted). “As such, it is no different from a suit against the State itself.”

Id. Davis’ claims against the State Appellees are, therefore, claims against the

Commonwealth of Kentucky. To the extent the Third-Party Complaint seeks relief

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other than injunctive relief – including the indemnity claim based on any relief awarded to the plaintiffs against Davis – such claims are barred by the Eleventh

Amendment and must be dismissed. Id.; see also, e.g., Gean v. Hattaway, 330 F.3d

758, 766 (6th Cir. 2003).

While relief in the form of damages is clearly prohibited by the Eleventh

Amendment, the Supreme Court has recognized a limited exception in suits against state officers seeking prospective injunctive relief. Ex Parte Young, 209 U.S. 123

(1908). This limited exception applies only where prospective injunctive or declaratory relief is sought to bring state actors’ future conduct into line with federal law. Quern v. Jordan, 440 U.S. 332, 337 (1979). The Eleventh

Amendment bars any retrospective relief against state officials in their official capacity. Id. Similarly, a permissible suit under the Ex Parte Young Doctrine must arise from an ongoing, continuing violation of federal law. Gean, 330 F.3d at

776. Here, Davis has conceded (and it is clear even without such a concession) that any harm she may have sustained as a result of the State Appellees’ actions has been cured by the Executive Order. Because Davis does not contend that the

State Appellees are violating federal law, all claims against them must be dismissed.

Finally, the mootness doctrine ensures that actions in federal court arise from live cases or controversies. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,

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240 (1937). Mootness is a threshold jurisdictional issue. WJW-TV, Inc. v. City of

Cleveland, 878 F.2d 906, 909 (6th Cir. 1989). The federal courts are without jurisdiction to decide issues that have been rendered moot due to intervening events. Connaire, Inc. . Sec’y of Dep’t of Trans., 887 F.3d 723, 725 (6th Cir.

1989); see also U.S. CONST. art. III, § 2 (predicating exercise of federal jurisdiction on the existence of an actual case or controversy). Cessation of allegedly unconstitutional conduct by government officials or a change to a challenged government practice moots a federal court action that complains of such conduct. See Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 982

(6th Cir. 2012). Here, Davis has conceded that the Executive Order grants the relief she had sought against the State Appellees. Therefore, Davis’ claims against them are moot and must be dismissed.

B. The Court Should Expedite Briefing and Consideration of this Motion.

The Court may expedite consideration for good cause. 6 Cir. R. 27(f). The

Supreme Court has directed that issues of immunity must be resolved “at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232

(2009). Mootness is a jurisdictional question, which must likewise resolved expeditiously as a threshold matter. Environmental Conservation Org. v. City of

Dallas, 529 F.3d 519, 525 (5th Cir. 2008). When lack of jurisdiction is raised, the court should “proceed no further until that question is determined.” Page v.

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Wright, 116 F.2d 449, 453 (7th Cir. 1940). Here, State Appellees have shown that the claims against them are barred by the Eleventh Amendment and the mootness doctrine. Consequently, the Court should expedite briefing and consideration of this motion and suspend any further action in the case until the motion is decided.

III. CONCLUSION

For the reasons set out above, the State Appellees respectfully request that the Court expedite briefing and consideration of this motion, dismiss them from this consolidated appeal, and dismiss Case No. 15-5961 in its entirety.

Respectfully submitted,

STOLL KEENON OGDEN PLLC 300 West Vine Street, Suite 2100 Lexington, Kentucky 40507-1380 (859) 231-3000 (859) 253-1093 facsimile

By: /s/ Palmer G. Vance II William M. Lear, Jr. Palmer G. Vance II

Counsel for Appellees Governor Matthew G. Bevin and Commissioner Wayne Onkst in their Official Capacities

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CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing with the Court’s

CM/ECF system on the 11th day of January 2016, which simultaneously serves a copy via electronic mail to the following:

Daniel J. Canon Laura E. Landenwich Leonard Joe Dunman CLAY DANIEL WALTON ADAMS, PLC [email protected] [email protected] [email protected] COUNSEL FOR PLAINTIFFS

William Ellis Sharp ACLU OF KENTUCKY [email protected] COUNSEL FOR PLAINTIFFS

James D. Esseks Ria Tabacco Mar Daniel Mach Heather Weaver AMERICAN CIVIL LIBERTIES UNION [email protected] [email protected] [email protected] [email protected] COUNSEL FOR PLAINTIFFS

Anthony Charles Donahue DONAHUE LAW GROUP, PSC [email protected] COUNSEL FOR KIM DAVIS

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Mathew D. Staver Horatio G. Mihet Roger K. Gannam Jonathan D. Christman LIBERTY COUNSEL [email protected] [email protected] [email protected] [email protected] COUNSEL FOR KIM DAVIS

/s/ Palmer G. Vance II Counsel for Appellees Governor Matthew G. Bevin and Commissioner Wayne Onkst in their Official Capacities

119363.152876/4474762.2

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EXHIBIT 1 Case: 15-5880 Document: 77-2 Filed: 01/11/2016 Page: 2 (11 of 17) Case: 15-5880 Document: 77-2 Filed: 01/11/2016 Page: 3 (12 of 17) Case: 15-5880 Document: 77-2 Filed: 01/11/2016 Page: 4 (13 of 17) Case: 15-5880 Document: 77-2 Filed: 01/11/2016 Page: 5 (14 of 17) Case: 15-5880 Document: 77-2 Filed: 01/11/2016 Page: 6 (15 of 17)

EXHIBIT 2 Case: 15-5880 Document: 77-2 Filed: 01/11/2016 Page: 7 (16 of 17)

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Governor Issues Executive Order TAKE ACTION Protecting KY Clerk Kim Davis

Dec 22, 2015

Frankfort, KY – Today Matt Bevin issued an executive order that removes the names of all County Clerks from marriage licenses and protects the religious rights and freedoms of Kim Davis and all other clerks in Kentucky. This action is a fulfillment of a campaign promise by Gov. Bevin and is directly what our client Kim Davis has been requesting for months. This promise will enable her and other clerks to do their jobs without compromising religious values and beliefs. The Governor's statement reads in part:

"To ensure that the sincerely held religious beliefs of all Kentuckians are honored, Executive Order 2015-048 directs the Kentucky Department for Libraries and Archives to issue a revised marriage license form to the offices of all Kentucky County Clerks. The name of the County Clerk is no longer required to appear on the form."

"This is a wonderful Christmas gift for Kim Davis," said Mat Staver, Founder and Chairman of Liberty Counsel. "This executive order is a clear, simple accommodation on behalf of Kim Davis and all Kentucky clerks. Kim can celebrate Christmas with her family knowing she does not have to choose between her public office and her deeply-held religious convictions. What former Gov. Beshear could have done but refused to do, Gov. Bevin did with this executive order. We are pleased that Gov. Bevin kept his campaign promise to accommodate the religious rights of Kim Davis. We will notify the courts of the executive order and this order proves our point that a reasonable accommodation should have been done to avoid Kim having to spend time in jail," concluded Staver.

There is no question the case of Kim Davis and the issue of religious freedom played a role in the Governor’s lopsided win. Kentuckians favor traditional values, and they are tired of the political elites represented by the previous Democratic leadership. They join with others across our nation who believe America should be a place where all people can live out their faith without fear of being put in prison.

Governor Matt Bevin posted on his account, "To ensure that the sincerely held religious beliefs of all Kentuckians are honored I took action to revise the Clerk marriage license form." He continued, "Through today's Executive Order the name of the County Clerk is no longer required to appear on the revised marriage license form."

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.

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