Arguments about whether or not marriage licenses issued by Rowan County Clerk Kim Davis’s assistant clerks are valid are nonsense as Kentucky statute specifically states that;
“Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy”
There is no requirement that the deputy has to have the permission of the clerk to perform their duties.
Kentucky Statute – 61.035 Deputy may act for ministerial officer. Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.
However, there is a state law that makes it a crime for an official to refuse to perform their statutory duty.
Kentucky Statutes 522.020 and 522.030 deal with official misconduct in the first and second degree, respectively. “A public servant is guilty of official misconduct in the first degree when, with intent to . . . deprive another person of a benefit, knowingly . . . refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office or violates any statute or lawfully adopted rule or regulation relating to his office,” .
Official misconduct in the first degree is a Class A misdemeanor and is punishable with imprisonment not to exceed 12 months and fines of $500. Official misconduct in the second degree is a Class B misdemeanor and carries a potential punishment of up to 90 days imprisonment and fines of $250.
Kentucky Statute makes it the county clerk’s duty to issue marriage licenses.
Kentucky Statute 402.080 Marriage license required . No marriage shall be solemnized without a license therefore. The license shall be issued by the clerk of the county [emphasis added]
Therefore, the County Sheriff and Attorney would be within their authority and duty to arrest and charge Kim Davis for failure to perform her sworn duty to uphold the law and issue marriage licenses, either for straight or gay couples. She after all, has committed this crime.