Legal hitch in getting hitched behind bars
Monday, June 10, 2013
Missouri’s recorders of deeds likely will look to the Legislature next year to resolve a legal problem highlighted by prison inmates having trouble getting marriage licenses.
“The law says the applicants for a marriage license must be present when they make their oath to the recorder,” attorney Sherry Mariea of Jefferson City, who represents the Recorders Association of Missouri, said last week.
And, as Western District federal Judge Fernando Gaitan Jr. noted in a ruling last March, state law “also subjects a recorder of deeds who issues a marriage license ‘contrary to the provisions of this chapter’ to criminal penalties.”
But inmates can’t leave prison to go to the county recorder’s office to apply for a marriage license — and some recorders have refused to go, or been denied access, to the prison to get an application signed.
Last year, state Corrections officials changed their procedures after 17 years and refused to allow Cole County Recorder Larry Rademan to continue getting applications completed at the Jefferson City Correctional Center — unless he reported his Social Security number to them, which he declined to do.
And Washington County Recorder Judy Creswell Moyers refused to go to the Potosi Correctional Center, to accept marriage applications from inmates there.
Both situations led to the American Civil Liberties Union of Eastern Missouri (ACLU-EM) filing lawsuits in federal court on behalf of women who wanted to marry inmates — and those lawsuits eventually resulted in two different federal judges issuing rulings requiring the recorder to accept an affidavit from the inmate.
In March, Gaitan, chief judge of the federal court’s Kansas City-based Western District, ruled in the lawsuit filed against Rademan and JCCC Superintendent Jeff Norman that the U.S. Constitution’s 14th Amendment’s “due process clause” protects the inmates’ “fundamental right to marry,” and “the statutory requirement that both fiancés execute and sign a marriage license in the presence of the recorder of deeds ... significantly interferes with plaintiffs’ exercise of their fundamental right to marry their incarcerated fiancés.”
Last week, U.S. District Judge Catherine D. Perry of the St. Louis-based Eastern District noted Gaitan’s ruling in a case against Moyers: “I agree with Judge Gaitan’s conclusion that (the Missouri law) is unconstitutional as applied to incarcerated persons.”
Since the two federal court districts cover the entire state, doesn’t that mean that the rulings essentially end the problem?
“I don’t think so, because each order is specific to the recorder named as the defendant in the action,” Mariea explained — Rademan in Jefferson City and Moyers in Potosi.
So, Mariea added, Missouri’s other recorders still have “a lot of uncertainty (and) currently are just waiting, hoping for a future legislative resolution, or something, that provides them with guidance.”
She said Missouri’s recorders “are not trying to impede the exercise of these constitutional rights.”
In a news release last week announcing Judge Perry’s ruling in the Moyers-Washington County case, Tony Rothert — the ACLU-EM’s legal director — said his organization hopes “the Missouri legislature will fix this problem. Until it does, county officials are likely to see (more) lawsuits like this one.”
And, while the two lawsuits have focused on state prisons, Camden County Recorder Donnie Snelling — the Recorders association president — said: “We’ve also seen similar cases to this in the county jails (and) we get calls from people wanting us to come to the hospital — you know, they’ve got a terminal patient in the hospital that’s not able to get in” to the recorder’s office.
Snelling said recorders also have “problems, sometimes, with the military, who are going to be flying in (but) may not be coming in until” a few hours before the wedding.
He said the two federal court rulings could help lead to state legislation that could resolve several issues.
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