Motion filed against judge who jailed Kim Davis for Christian beliefs

Kim Davis

Lawyers for Kentucky Christian county clerk Kim Davis are appealing a decision by Judge David Bunning, Hall of Fame pitcher Jim Bunning's son, forcing taxpayers to foot the bill for lawyers defending same-sex duos.

The same-sex couples, who sued Davis for not issuing them marriage licenses in violation of her religious beliefs, won a temporary order from Bunning. But in a brief filed with the Sixth U.S. Circuit Court of Appeals, Liberty Counsel argues that no fees are owed because the case was dismissed when the state changed the law so that Davis' name would not be required to appear on marriage licenses, the outcome she originally sought.

Bunning ordered the Rowan County clerk to prison for refusing to issue the licenses.

The brief points out that Bunning was so anxious to rule in favor of the homosexual duos that he didn't wait until he had jurisdiction in the case before holding a hearing.

Then he overturned the recommendation of a magistrate who ruled the homosexual duos were not the prevailing party in the case.

Instead, Bunning ruled the state needed to pay the ACLU $231,000 for the legal fight.

The homosexual duos sued after they demanded Davis give them marriage licenses, even though they could obtain the same licenses from other county clerks.

They demanded, after Davis was jailed by Bunning and released, that licenses they had obtained from her deputies – who had removed Davis' name – be re-issued with her name on them.

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They were unsuccessful, proving, according to Liberty Counsel, that they did not get what they wanted and, therefore, were not the prevailing party.

The dispute arose after the U.S. Supreme Court created same-sex marriage in a 5-4 ruling that was described by dissenting justices as unrelated to the Constitution.

After the high court's decision, Davis suspended issuing all marriage licenses from her office so there would be no discrimination. Several homosexual duos found out, demanded she provide licenses and then sued.

That was when the district court held a hearing, before Davis was even served, meaning the hearing took place before the court had jurisdiction.

The court's own ruling noted that problem but called it a "jurisdictional deficiency" that was a mere "roadblock to getting to the merits," according to Liberty Counsel.

When Bunning ordered Davis to issued the licenses, she refused, and he jailed her. Then he grilled her deputies and threatened them if they would not issue the licenses.

The case was up and down to the governor's office several times, as well as the Sixth Circuit. The first governor, Steve Beshear, simply refused to make an accommodation for Davis' faith.

When he was succeeded by Matt Bevin, Bevin issued an executive order giving Davis her accommodation, and the Kentucky state legislature then turned the accomodation into law.

The move prompted the appeals court to dissolve Bunning's injunction, and at the district court level, the case was dropped.

Liberty Counsel noted the litigation was an attempt to "force an 'all or nothing' choice between same-sex marriage on one hand, and religious liberties on the other, with no regard whatsoever for any reasonable accommodation."

The legal team pointed out that some of the plaintiffs traveled through jurisdictions where they could have gotten licenses in order to reach Davis' jurisdiction, where they demanded she comply.

According to Liberty Counsel, the plaintiffs "admitted that they never even attempted to obtain a license in any other county."

Bunning also acted in the case after ignoring Davis' own legal action against the state for refusing to grant her a religious accommodation, even while admitting her rights were threatened.

Bunning simply noted that the plaintiffs "preferred" getting their licenses from Davis.

Further, the district court expanded the case to class action status "without even hearing a motion," Liberty Counsel said.

The legal team said the result of the changes in Kentucky law "made the ACLU claims moot."

"The law in the Sixth Circuit is clear that plaintiffs who obtain only preliminary relief that does not end their case are not 'prevailing parties,'" said Mat Staver, chairman of Liberty Counsel. "Kim Davis won this battle for religious liberty when Governor Bevin and the Kentucky General Assembly gave her the accommodation she was always due."

WND reported a year ago when Bunning awarded hundreds of thousands of dollars to the ACLU.

Earlier, Magistrate Judge Edward Atkins, who was assigned to review the evidence, rejected the ACLU's demands. Atkins concluded "the plaintiffs are not 'prevailing parties' … and are therefore not entitled to an award of attorneys' fees."

David Bunning's father, Jim, who died last year at the age of 85, once threw a perfect game and later served in the U.S. Senate. Jim Bunning threw no-hitters in both the American and National Leagues. The New York Times described him as a "fervently conservative and often cantankerous" member of the U.S. House and Senate.

David Bunning simply declared the ACLU was the prevailing party while admitting the plaintiffs were unsuccessful in their demands for a permanent injunction, class certification, declaratory judgment, trial by jury and damages.

Bunning's decision, if upheld, would mean the lawyers who fought to force Davis to violate her religious faith – William Sharp, Daniel Canon, Laura Landenwich, L. Joe Dunman, Ria Tabacco Mar, James Esseks, Daniel Mach and Heather Weaver – must be paid up to $700 per hour for their work, with Sharp cashing in with a payment of more than $78,000.

But even Bunning put quote marks around "prevailed" in his ruling, writing the "plaintiffs 'prevailed' against Kim Davis."

He wrote that the plaintiffs lack of success did not prevent them from "prevailing."

Davis' lawyers long have contended that the case was not so much about same-sex duos obtaining licenses as it was an attack on Christians.

Her lawyers, at that time, noted a recurring theme in court filings from homosexuals: punish Kim Davis.

Liberty Counsel's Staver said: "It has never really been about a marriage license – Rowan County has issued the licenses – it is about forcing their will on a Christian woman through contempt-of-court charges, jail and monetary sanctions."

The attorneys said then: "The fact is the plaintiffs already possess marriage licenses from Rowan County that have been approved as being valid by the Kentucky governor and Kentucky attorney general. Kim has taken all reasonable steps and good faith efforts to substantially comply with this court's orders."

The evidence indicated the objective of the court cases was not simply to obtain licenses, but to reduce the Constitution's religious rights to a secondary role behind homosexual rights, Liberty Counsel said.