Nichols v. Moyers
MEMORANDUM AND ORDER. (see order for further details) IT IS HEREBY ORDERED that the joint motion for judgment on the pleadings [# 22 ] is granted, and plaintiff is entitled to declaratory and permanent injunctive relief as requested by count 1 of her first amended complaint. IT IS FURTHER ORDERED that Defendant Moyers and her successors in office are hereby permanently enjoined from requiring individuals incarcerated in institutions located in Washington County to execute or sign marriage license applications in the presence of the Washington County recorder of deeds or any deputy of that official. Signed by District Judge Catherine D. Perry on 06/03/2013. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHELLE A. NICHOLS,
JUDY CRESSWELL MOYERS,
Case No. 4:13CV735 CDP
MEMORANDUM AND ORDER
Michelle Nichols brought this case against defendant Judy Cresswell
Moyers, the Recorder of Deeds for Washington County, Missouri, for violating
Nichols’ fundamental right to marry. Nichols claims that Mo. Rev. Stat. §
451.040.2, requiring each applicant for a marriage license to sign the application
“in the presence of the recorder of deeds or their deputy,” is unconstitutional as
applied to instances where one or both applicants for a marriage license is
The case is now before me on the parties’ joint motion for judgment on the
pleadings as to count 1 of Nichols first amended complaint, seeking declaratory
and injunctive relief. The parties have agreed that I can consider Nichols’ request
for permanent injunctive relief on the merits, that I can decide the issue solely on
the pleadings, and that no hearing is necessary in this matter. After reviewing the
pleadings and the joint motion, I agree that the material facts are admitted in the
pleadings and so the issue now before me is one of law. For the reasons that
follow, I will grant the joint motion for judgment on the pleadings. The parties’
joint motion, and this opinion, deal only with count 1 for declaratory and injunctive
relief, and do not resolve the § 1983 claim.
Plaintiff Michelle Nichols is engaged to marry Ulysses Deckard, an inmate
in the custody of the Missouri Department of Corrections at Potosi Correctional
Center in Mineral Point, Missouri. Nichols is unable to marry Deckard because
Deckard is incarcerated and defendant Moyers, the Washington County Recorder
of Deeds, refuses to go to the Potosi Correctional facility for the purpose of
witnessing a marriage license application. Moyers also refuses to accept an
affidavit or any other documentation by Deckard in lieu of the requirement that he
be physically present to submit the application.
Missouri law requires persons seeking a marriage license to sign an
application in the presence of the recorder of deeds. Mo. Rev. Stat. § 451.040.2.
Section 451.120 makes the solemnization of any marriage in which the parties
have not obtained a marriage license “as provided by this chapter” a misdemeanor.
Section 451.120 also subjects a recorder of deeds who issues a marriage license
“contrary to the provisions of this chapter” to criminal penalties. Marriages
solemnized without a license are not recognized as valid. Mo. Rev. Stat. §
This same issue was recently decided by Judge Fernando J. Gaitan, Jr., in the
Western District of Missouri, and I agree with Judge Gaitan’s conclusion that Mo.
Rev. Stat. 451.040.2 is unconstitutional as applied to incarcerated persons. See
Fuller v. Norman, No. 2:12CV4300 FJG, 2013 WL 1397823 (W.D. Mo. Mar. 21,
2013). Nichols’ fundamental right to marry is protected by the due process clause
of the Fourteenth Amendment. Zablocki v. Redhail, 434 U.S. 374, 383 (1978).
Nichols has a constitutional right to marry her incarcerated fiancé.
The statutory requirement that both fiancés execute and sign a marriage
license in the presence of the recorder of deeds or their deputy significantly
interferes with Nichols’ exercise of her fundamental right to marry her incarcerated
fiancé. A statutory classification that significantly interferes with the exercise of a
fundamental right cannot be upheld “unless it is supported by sufficiently
important state interests and is closely tailored to effectuate only those interests.”
Zablocki, 434 U.S. at 388. The state has not advanced any interest sufficiently
important to obligate incarcerated individuals who are engaged to be married to
execute and sign a marriage license application in the presence of the recorder of
deeds or deputy. The recorder of deeds could verify the identity of an incarcerated
marriage license applicant through various means without requiring that applicant
to sign the marriage license application in the recorder's physical presence. See
Buck v. Stankovic, 485 F. Supp. 2d 576, 585 (M.D. Pa. 2007). The “in presence”
requirement of Section 451.040.2 is not closely tailored to solely effectuate a
sufficiently important state interest as applied to incarcerated persons applying for
marriage licenses. See Fuller, 2013 WL 1397823 at *2.
I further find that Nichols is entitled to the permanent injunctive relief she
seeks from Defendant Moyers, because the requirement of Section 451.040.2 that
marriage licenses be signed “in the presence of the recorder of deeds or their
deputy” is unconstitutional as applied to situations where one or both applicants for
a marriage license is incarcerated. Thus, Nichols has attained success on the merits
of that claim as required to obtain a permanent injunction. See Bank One, Utah v.
Guttau, 190 F.3d 844, 847 (8th Cir. 1999). Nichols’ ongoing inability to exercise
her fundamental right to marry shows that she is threatened with irreparable harm
in the absence of injunctive relief. I find that the balance of harms favors Nichols.
Finally, the Eighth Circuit has made clear that “it is always in the public interest to
protect constitutional rights.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.
2008). Accordingly, the issuance of a permanent injunction would serve the public
IT IS HEREBY ORDERED that the joint motion for judgment on the
pleadings [#22] is granted, and plaintiff is entitled to declaratory and permanent
injunctive relief as requested by count 1 of her first amended complaint.
IT IS FURTHER ORDERED that Defendant Moyers, her successors in
office, and their officers, agents, servants, and employees are hereby permanently
enjoined from requiring individuals incarcerated in institutions operated by the
Missouri Department of Corrections located in Washington County, or who are
incarcerated in any city or county jail located in Washington County, to execute or
sign marriage license applications in the presence of the Washington County
recorder of deeds or any deputy of that official.
IT IS FURTHER ORDERED that upon reasonable written proof as to the
authenticity of the signature of an incarcerated applicant on a marriage license
application, upon reasonable proof of the fact that one or both of the marriage
license applicants is incarcerated at the time the application is completed, and upon
receipt of all fees and other documents required for the issuance of a marriage
license under the laws of the State of Missouri, Defendant Moyers, her successors
in office, and their deputies, officers, agents, servants, and employees are hereby
required to issue marriage licenses to any such individual without requiring any
such incarcerated applicant to execute or sign a marriage license application in the
presence of the Recorder of Deeds for the County of Washington, State of
Missouri or any deputy of that official.
IT IS FURTHER ORDERED that the requirement of “reasonable written
proof” of the applicant’s signature and of the applicant’s incarcerated status shall
be deemed to have been met by presenting the following to Defendant Moyers, her
successors in office, and their deputies, officers, agents, servants, and employees at
the office of the Recorder of Deeds for the County of Washington, State of
Missouri: an affidavit or sworn statement (a) identifying the names of both
applicants for the marriage license; (b) signed by the incarcerated applicant stating
in substantial part that the applicant is unable to appear in the presence of the
Recorder of Deeds due to the applicant’s incarceration, which shall be verified by
the warden or warden’s designee and acknowledged by a notary public
commissioned by the State of Missouri at the time of verification; and (c) the
completed and legible marriage license application of the incarcerated applicant.
An applicant who is not incarcerated must sign the marriage license application in
the presence of Defendant Moyers or her deputies. The Plaintiff and Defendant
Moyers have agreed that the incarcerated applicant will provide to the Washington
County Recorder of Deeds office an “Affidavit of Absent Applicant,” attached to
this Order as Exhibit A, completed and executed by the incarcerated applicant
before a notary public and verified by the warden and/or warden’s designee to
fulfill the requirements of (a) and (b) described above.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of June, 2013.
STATE OF MISSOURI
AFFIDAVIT OF ABSENT APPLICANT
[Please note that the names appearing below must match exactly the names shown on the
attached Application/Report of Marriage.]
________________________________________ first being duly sworn on this ______ day
of ____________________________________, 20____, on his/her oath states:
I am over the age of 18 years and have capacity to enter into a marriage contract.
I am the Intended (Check One )
Bride on the attached Application/
Report of Marriage in which I have completed the information pertaining to my
personal identification and in which I am making an application for a license to marry
the following person:
The marriage proposed in the attached Application/Report of Marriage is NOT a
marriage between parent and child, between grandparent and grandchild of any
degree, between brother and sister of the half or the whole blood, between uncle and
niece, between aunt and nephew, or between first cousins.
The signature appearing upon the attached Application/Report of Marriage is my
I have also attached a copy of one or more government issued identifications, which
contains my photo.
I am unable to appear in the presence of the recorder of deeds for Washington
County, Missouri, because I am currently incarcerated.
Subscribed and sworn to before me by ______________________________, who personally
appeared before me and is known to me to be the person described in and who executed the
foregoing affidavit, and acknowledged that the facts set forth herein are true and correct to the best of
his/her knowledge and information and that he/she executed the affidavit as his/her free act and deed.
In Witness Whereof, I have hereunto set my hand and affixed my official seal at my office
this _____ day of _______________________, 20___.
My Commission Expires:
VERIFICATION BY WARDEN OR WARDEN’S DESIGNEE: I hereby certify that I am the
warden or warden’s designee of the following Institution: __________________________________
_______________________________________________________, and that the person making this
Affidavit of Absent Applicant, (name of incarcerated person) _______________________________,
is currently incarcerated within the said Institution. I also certify that the social security number
listed by (name of incarcerated person) _____________________________________on the attached
marriage license application is consistent with Department of Correction records.
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