IN THE SUPREME COURT OF ALABAMA Ex parte STATE ex rel. ALABAMA POLICY INSTITUTE and ALABAMA CITIZENS ACTION PROGRAM, Petitioner, v. ALAN L. KING, in his official capacity as Judge of Probate for Jefferson County, Alabama, ROBERT M. MARTIN, in his official capacity as Judge of Probate for Chilton County, Alabama, TOMMY RAGLAND, in his official capacity as Judge of Probate for Madison County, Alabama, STEVEN L. REED, in his official capacity as Judge of Probate for Montgomery County, Alabama, and JUDGE DOES ##1-63, each in his or her official capacity as an Alabama Judge of Probate, Respondents. _________________________________/ CASE NO. 1140460 RELATORS’ RESPONSE TO MOTION OF PROBATE JUDGE DON DAVIS FOR EXTENSION OF TIME Relators, ALABAMA POLICY INSTITUTE and ALABAMA CITIZENS ACTION PROGRAM, file this response to Probate Judge Don Davis’s Motion to Extend Time for Response. Relators show the Court as follows: 1. In this Court’s opinion and order granting Relators’ Petition, entered March 3, 2015 (the “Mandamus Order”), the Court enjoined Alabama probate judges “from E-Filed 03/06/2015 @ 10:05:00 AM Honorable Julia Jordan Weller Clerk Of The Court
Alabama Policy Institute v. King (Alabama Supreme Court mandamus petition) Alabama Policy Institute and Alabama Citizens Action Program's Response to Davis Motion to Extend Time. Filed March 6, 2015
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IN THE SUPREME COURT OF ALABAMA
Ex parte STATE ex rel. ALABAMA
POLICY INSTITUTE and ALABAMA
CITIZENS ACTION PROGRAM,
Petitioner,
v.
ALAN L. KING, in his official
capacity as Judge of Probate for
Jefferson County, Alabama,
ROBERT M. MARTIN, in his official
capacity as Judge of Probate for
Chilton County, Alabama,
TOMMY RAGLAND, in his official
capacity as Judge of Probate for
Madison County, Alabama,
STEVEN L. REED, in his official
capacity as Judge of Probate for
Montgomery County, Alabama, and
JUDGE DOES ##1-63, each in his or
her official capacity as an
Alabama Judge of Probate,
Respondents.
_________________________________/
CASE NO. 1140460
RELATORS’ RESPONSE TO
MOTION OF PROBATE
JUDGE DON DAVIS FOR
EXTENSION OF TIME
Relators, ALABAMA POLICY INSTITUTE and ALABAMA CITIZENS
ACTION PROGRAM, file this response to Probate Judge Don
Davis’s Motion to Extend Time for Response. Relators show
the Court as follows:
1. In this Court’s opinion and order granting
Relators’ Petition, entered March 3, 2015 (the “Mandamus
Order”), the Court enjoined Alabama probate judges “from
E-Filed 03/06/2015 @ 10:05:00 AM Honorable Julia Jordan Weller Clerk Of The Court
2
issuing any marriage license contrary to Alabama law as
explained in this opinion.” (Mandamus Ord. at 133-34.)
2. The Mandamus Order also directed Judge Davis “to
advise this Court . . . as to whether he is bound by any
existing federal court order regarding the issuance of any
marriage license other than the four marriage licenses he
was ordered to issue in Strawser.” (Id. at 134.)
3. In response to the Court’s directive, Judge Davis
filed on March 5 a (corrected) Motion to Extend Time for
Response (the “Extension Motion”) and Brief in Support (the
“Extension Brief”). Judge Davis also filed in the Strawser
case (in which he is a defendant) an Emergency Motion for
Stay (the “Stay Motion”), a copy of which (without
exhibits) is attached hereto as Exhibit A.
4. The upshot of Judge Davis’s Extension Motion,
Extension Brief, and Stay Motion is that his answer to this
Court’s question, “whether he is bound by any existing
federal court order regarding the issuance of any marriage
license other than the four marriage licenses he was
ordered to issue in Strawser,” is “I don’t know.” By
requesting a “stay” of the injunction from the Strawser
3
court, however, Judge Davis at least implies that he
believes he is still subject to that injunction.
5. Unfortunately, Judge Davis has ceased issuing all
marriage licenses until the conflict he perceives is
resolved. (Extension Br. at 5.)
6. Relators are sympathetic to Judge Davis’s position
in a federal lawsuit he did not invite, and do not dispute
that Judge Davis has gone to great lengths to seek clarity
from both this Court and Judge Granade regarding his
obligations. However, this Court possesses all the
information necessary to determine the answer to its
question posed to Judge Davis, and should neither wait upon
nor defer to Judge Granade for the answer.
7. First, in Judge Granade’s Order denying the Searcy
plaintiffs’ motion to hold Judge Davis in contempt, she
held, “Probate Judge Don Davis is not a party in this case
and the Order of January 23, 2015, did not directly order
Davis to do anything.” 2015 WL 519725 at *1 (S.D. Ala. Feb.
9, 2015) (footnote omitted). Then, in her Order Clarifying
Judgment entered in Searcy on January 28, 2015, Judge
Granade cited and adopted—as clarification of her own
injunction—the decision of the federal district court in
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Brenner v. Scott, No. 4:14cv107–RH/CAS, 2015 WL 44260 at *1
(N.D. Fla. Jan. 1, 2015). (Jan. 28, 2015 Order at 3.) The
Brenner court had enjoined a Florida clerk of court to
issue a marriage license to a same-sex couple who were
plaintiffs in the case. Id. But the Brenner court held that
the injunction did not require the clerk to issue marriage
licenses to any applicants who were not plaintiffs in the
case. Id. (“The preliminary injunction now in effect thus
does not require the Clerk to issue licenses to other
applicants.” (emphasis added)). The two orders together
make clear that Judge Davis has no particular duty to any
person arising under Searcy, in which he was not a party.
Moreover, by adopting the holding and reasoning of Brenner
as clarification of her own injunction, Judge Granade made
clear that her injunction cannot require the issuance of a
marriage license to any applicant who is not a party before
her court.
8. Judge Davis was added as a defendant in Strawser
after the original Strawser Injunction was issued against
the Attorney General. (Extension Mot. ¶ 8.) Judge Granade
then preliminarily enjoined Judge Davis to issue marriage
licenses to the same-sex couples who were then plaintiffs
5
in the case. 2015 WL 589917, at *3 (S.D. Ala. Feb. 12,
2015). Specifically, Judge Granade ordered:
Probate Judge Don Davis is hereby
ENJOINED from refusing to issue marriage
licenses to plaintiffs due to the Alabama
laws which prohibit same-sex marriage. If
Plaintiffs take all steps that are
required in the normal course of business
as a prerequisite to issuing a marriage
license to opposite-sex couples, Judge
Davis may not deny them a license on the
ground that Plaintiffs constitute same-
sex couples . . . .
Id. (italicized emphasis added). Thus, by the express terms
of her injunction, and consistent with the holding of
Brenner adopted in the Searcy case, Judge Granade did not
order Judge Davis to issue marriage licenses to any
applicants who were not parties before her court.
9. In her subsequent order in Strawser denying
intervention by Probate Judge Alan L. King (also a named
Respondent in this case), Judge Granade acknowledged,
“relief has already been granted to Plaintiffs against
Judge Davis.” 2015 WL 736091, at *2 (S.D. Ala. Feb. 20,
2015).
10. Then, in her order denying Plaintiffs’ Emergency
Motion for Enforcement of Injunction, filed by the Strawser
Plaintiffs in an attempt to compel the Attorney General to
6
step into the instant case and dismiss it, Judge Granade
again acknowledged, “Plaintiffs have secured the injunctive
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES N. STRAWSER and JOHN E. HUMPHREY, et. al.,
) )
) Plaintiffs, )
) vs. ) CIVIL NO. 14-0424-CG-C ) LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama, et. al.,
) ) )
) Defendant.
ORDER
This matter is before the court on Plaintiffs’ Emergency Motion for
Enforcement of Injunction (Doc. 60), the Attorney General’s Response in
Opposition (Doc. 62), and Plaintiffs’ Reply (Doc. 64). This Court previously
enjoined the Attorney General and others in active concert and participation
with him from enforcing the Alabama laws prohibiting same-sex marriage
after ruling those laws are unconstitutional. (Doc. 29, p. 4).1 In light of this
injunction, Plaintiffs now move this Court to order the Attorney General to
exercise his control over litigation concerning the State of Alabama’s same-
sex marriage laws pending in the Alabama Supreme Court. (Doc. 60, p. 1).
After careful consideration and for the reasons set forth herein, Plaintiffs’
motion is DENIED.
1 This Court also addressed the constitutionality of the Alabama laws prohibiting same-sex marriage in a companion case, Searcy v. Strange, Southern District of Alabama Case No. 14-00208.
Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 1 of 5
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EXHIBIT B
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The Court is sympathetic to Plaintiffs’ position. After this Court issued
orders declaring unconstitutional the Sanctity of Marriage Amendment, Ala.
Const. art. I, § 36.03, and the Alabama Marriage Protection Act, Ala. Code §
30-1-19, the Chief Justice of the Alabama Supreme Court issued
administrative orders directing Alabama probate judges to uphold those
same laws. Then this Court ordered Mobile County Probate Judge Don Davis
to issue licenses to same-sex couples. (Doc. 55). Concurrently, two
organizations, the Alabama Policy Institute and the Alabama Citizens Action
Program, petitioned the Alabama Supreme Court for a writ of mandamus
directing all probate judges in Alabama to uphold the Marriage Amendment
and the Marriage Protection Act.2 Plaintiffs are thus concerned a state
mandamus prohibiting every probate judge from issuing same-sex marriage
licenses may result, in conflict with a federal order commanding a named
probate judge to issue such licenses. (Doc. 60, p. 9).
Despite the potential procedural imbroglio, Plaintiffs do not explain in
their motion what precisely entitles them to further relief against the
Attorney General at this time. Plaintiffs are citizens of Mobile County, and
this Court previously ordered the Mobile County Probate Court to issue
marriage licenses to them. It is also unclear how any Alabama Supreme
2 The Alabama Supreme Court action is case number 1140460, Ex Parte State ex rel. Alabama Policy Institute and Alabama Citizens Action Program v. Alan L. King, In his official capacity as Judge of Probate for Jefferson County, Alabama, et al.
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Court ruling may or may not harm Plaintiffs. Plaintiffs have secured the
injunctive relief they seek pursuant to a federal court order.
In addition to procedural concerns, Plaintiffs argue state law gives the
Attorney General the authority to control all litigation concerning the
interests of the State. See Ala. Code § 36-15-21. Thus the Attorney General is
authorized to dismiss the mandamus action on behalf of the state. (Doc. 60, p.
7). By failing to act, Plaintiffs say the Attorney General is allowing “private
parties to stand in his shoes and speak in the name of the State as petitioner
relators” when he has the authority to control the prosecution of the
mandamus. (Doc. 60, pp. 9 – 10). The mandamus action in the name of the
State of Alabama, Plaintiffs argue, simply seeks to accomplish what the
Attorney General is prohibited from doing directly. (Doc. 60, p. 10).
Plaintiffs, however, do not specifically show how the Attorney General
is trying to get around this Court’s injunction. The Attorney General does not
appear to be in concert with the Alabama Policy Institute or the Alabama
Citizens Action Program, nor is he advising them. The Attorney General
attests he “did not authorize or encourage the Petitioners” to file the petition
for writ of mandamus. (Doc. 62, p. 4). Although the Attorney General
arguably could seek to control the mandamus action, Ex parte King, 59 So. 3d
21, 25 - 29 (Ala. 2010), he is not obligated to do so by this Court’s orders.3
3 Whether the Attorney General can seize control over privately initiated litigation on behalf of the State remains a question of Alabama law. In contrast, it is clear the Attorney General can seize control over litigation
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Furthermore, even if the Attorney General elected to exercise control over
that proceeding and moved to dismiss the writ of mandamus petition, the
Alabama Supreme Court is the arbiter responsible for determining the
outcome of that case. (Doc. 62, p. 5).
Plaintiffs further argue the Attorney General’s action in permitting the
writ of mandamus petition to proceed is akin to “improperly thwarting the
denial of the State’s request for a stay of this Court’s orders by the Eleventh
Circuit and the United States Supreme Court.” (Doc. 60, p. 8). Yet again,
Plaintiffs present no concrete link between the Attorney General’s inaction
and the state court action brought by two private entities. The Attorney
General correctly observes that in this stage of the proceedings, the
“injunctions forbid the Attorney General to take action; they do not compel
action.” (Doc. 62, p. 4).
Finally, the mandamus action does not create any immediate conflict
with the previous orders of this Court. (Doc. 62, p. 3). Because the Alabama
Supreme Court has not yet decided whether it will even address the merits of
the petition, any conflict is purely speculative at this point. Moreover, the
Attorney General recognizes “[r]egardless of how the Alabama Supreme
Court rules . . ., that ruling should not be an impediment to a person who is
denied a marriage license from bringing a lawsuit against the Probate Judge
who denied the license.” (Doc. 62, p. 3). In other words, non-party probate
initiated as the state by local prosecutors and other executive officers. See, e.g., State ex rel. Carmichael v. Jones, 41 So. 2d 280, 283 (Ala. 1949).
Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 4 of 5
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judges could nevertheless issue same-sex marriage licenses if sued and
ordered by a federal court to do so.
In sum, Plaintiffs have not shown that they have suffered harm as a
result of the Attorney General’s conduct that can be redressed through
further relief against him. For these reasons, Plaintiff’s Emergency Motion
for Enforcement of Injunction (Doc. 60) is DENIED.
DONE and ORDERED this 20th day of February, 2015. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
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