The Contempt Judgment From Missouri

The wild ride in Missouri continues. Around the same time that the United States Supreme Court stayed Judge Clark’s ruling, the Missouri Supreme Court held an emergency hearing about whether Secretary of State Denny Hoskins should be held in contempt. By that time, because Judge Clark’s ruling was stayed by the Supreme Court, Hoskins was no longer subject to dueling injunctions, and thus agreed to enforce the 2022 maps. Ultimately, the court ruled that Hoskins “purged himself” of contempt, and therefore imposed no punishment.

Yet, for a period of about 16 hours, the Secretary of State was subject to two sets of injunctions. The Missouri Supreme Court ordered him to use the 2022 maps. And the U.S. District Court for the Eastern District of Missouri ordered him to use the 2026 maps. Which of these two courts prevails? Neither. They are both courts of competent jurisdiction that issued binding orders. One is not higher than the other. Indeed, conflicting rulings from the Missouri Supreme Court and the Eighth Circuit would present the same issue.  Hoskins, if push came to shove, would have to choose which judgment he wishes to comply with. But that choice entails costs. If he complied with the state court ruling, Judge Clark could have held him in contempt. If he complied with the federal court ruling, the Missouri Supreme Court could have held him contempt.

Under these very unusual circumstances, the Supreme Court in the span of 48 hours declined to disturb the state court ruling and stayed the federal court ruling, so Hoskins got some definitive guidance from up to. But in the normal course, these sorts of dueling injunctions would co-exist for days, weeks, or even longer.

This sort of dynamic played out in Alabama during the same-sex marriage litigation. State probate judges who issued our marriage licenses were subject to conflicting orders from a federal judge in Mobile and the Alabama Supreme Court. Ultimately, Obergefell settled the matter, but in the interim, the state probate judges had to pick which court might threaten them with contempt.

Howard Wasserman and I explained the dynamics in our 2016 article:

While the days immediately following Obergefell were marked by scattered attempts by some probate judges to avoid issuing licenses to same-sex couples or to avoid issuing licenses at all, the now effective class injunction quickly ended those efforts by ensuring compliance without need for that additional step. A couple denied a license by a probate judge would not have to initiate a new lawsuit or obtain a new injunction. They instead could go directly to [Federal] Judge Granade for an order enforcing the existing injunction, with no further constitutional analysis required. The court would promptly order the probate judge to issue licenses under the terms of the injunction, with failure to comply sanctioned by civil contempt.

The Missouri Supreme Court probably should have waited until the Supreme Court ruled before it set oral argument for contempt proceedings. I hope cooler heads prevail in the Show-Me state. Things are a bit too hot right now.

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