Kim Davis and The Law of Contempt

By Attorney Gregg Herman
September 9, 2015

A few years ago, I wrote an article summarizing the law of contempt.  With the recent publicity over the Kentucky county clerk who refused to issue marriage licenses to same sex couples, it seems like a good time for a few comments.

First, there is absolutely no question that the clerk is simply wrong.  She swore an oath to obey the law – not just those laws she agrees with.  Not so many years ago, certain states did not allow interracial marriage.   Does she think that a clerk should be able to assert her personal religious beliefs to refuse such licenses?  She is entitled to her religious beliefs – she just is not entitled to impose those beliefs on others.

Second, Mike Huckabee is on TV as I’m writing this saying “The Supreme Court cannot make law.”  Really?  Perhaps he needs to understand what is meant by the US being a common law jurisdiction.  Yes, the SC can – and does – make law.  

Third, remedial contempt is an appropriate remedy and it appears was properly used in this case.  Remedial contempt requires an intentional violation of a court order which can be remedied – or corrected – by the voluntary action of the violator.  Since we don’t normally imprison people without due process, including the right to a jury trial, a person can only be imprisoned if he or she “holds the key to jail” in his or her hands – in other words, the person has the ability to comply with the order and thus be released.

In family law, remedial contempt is commonly used where someone has not made a support or property division payment.  However, there are due process steps before the person is incarcerated because we don’t allow debtor’s prison.  Among the due process steps is a finding by the court that the person has the ability to make the payment.

Finally, the court did the right in releasing Davis after a few days to give her the opportunity to comply with the order of resign.  Many years ago, Milwaukee had a very colorful judge named Chris Seraphim who loved publicity and was, well, rather lax with strict legal requirements.  There was a famous story that he sentenced a delinquent payer to 5 years in jail for contempt.  Upon being informed that the maximum sentence was 6 months or until the contempt was remedied, he modified the order to “OK, 5 years in jail – 6 months at a time!”

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.