Court rules Kim Davis, Rowan County won’t pay legal fees from gay marriage lawsuit

U.S. District Judge David Bunning ruled that neither Kim Davis nor Rowan County are liable for attorney’s fees over the marriage license issue that began in 2015. Judge Bunning did overrule the Magistrate’s Findings and Recommendations that concluded the ACLU was not entitled to any attorney’s fees because the plaintiffs were not the prevailing party. Bunning found that the temporary preliminary injunction entitled the plaintiffs to attorney’s fees and went on to rule that the Commonwealth of Kentucky would be liable to pay the fees and costs, not Kim Davis or Rowan County.

“We are pleased that neither Kim Davis nor Rowan County are liable for attorney’s fees or costs,” said Mat Staver, Founder and Chairman of Liberty Counsel, who represented Kim Davis. “The part of the ruling that finds the plaintiffs were prevailing parties is contrary to the law because the legislature mooted the case by passing a law that provides for the precise religious liberty accommodation Kim Davis sought. While Kim Davis and Rowan County are not liable for fees and costs, neither is the Commonwealth of Kentucky, and this aspect of the ruling will be appealed,” Staver said. “The Magistrate correctly found that the plaintiffs were not the prevailing parties. That ruling is consistent with the Sixth Circuit Court of Appeals. Governor Matt Bevin’s executive order and the legislature mooted the case and prevents the plaintiffs from being prevailing parties. Without prevailing party status, there can be no attorney’s fees,” said Staver.

After the Sixth Circuit Court of Appeals vacated Judge Bunning’s injunction against Kim Davis, Magistrate Judge Edward Atkins earlier this year entered an order in the case denying the ACLU’s demand for fees, concluding, “the plaintiffs are not ‘prevailing parties’ . . . and are therefore not entitled to an award of attorneys’ fees.” Despite the fact that his injunction against Kim Davis was vacated, however, Judge Bunning overruled Magistrate Judge Atkins to impose attorney’s fee liability on the Commonwealth, and specifically stated that neither Kim Davis nor Rowan County are liable. This aspect of the ruling will also end the damages lawsuits by the other two couples against Kim Davis in her official capacity since Bunning found that Kim Davis was acting on behalf of the Commonwealth in her official capacity. The Eleventh Amendment to the U.S. Constitution precludes damages against the state.

Former Kentucky Governor Steve Beshear refused to provide Davis a simple accommodation. As a result, Kentucky Governor Matt Bevin signed an executive order immediately upon his election, creating a new marriage license form which does not require a county clerk’s name and title, and the Kentucky General Assembly unanimously made Governor Bevin’s protections permanent for Davis and her fellow county clerks. Former Governor Beshear could have avoided this litigation had he provided a reasonable religious liberty accommodation.