1140460 Petitioner Reply

8/9/2019 1140460 Petitioner Reply

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IN THE SUPREME COURT OF ALABAMA

Ex parte STATE ex rel. ALABAMAPOLICY INSTITUTE and ALABAMACITIZENS ACTION PROGRAM,

Petitioner,v.

ALAN L. KING, in his officialcapacity as Judge of Probate forJefferson County, Alabama,ROBERT M. MARTIN, in his officialcapacity as Judge of Probate forChilton County, Alabama,

TOMMY RAGLAND, in his officialcapacity as Judge of Probate forMadison County, Alabama,STEVEN L. REED, in his officialcapacity as Judge of Probate forMontgomery County, Alabama, andJUDGE DOES ##1-63, each in his orher official capacity as anAlabama Judge of Probate,

Respondents._________________________________/

CASE NO. 1140460

REPLY BRIEF OF PETITIONER

Mathew D. Staver † Fla. Bar No. [email protected]@LC.orgHoratio G. Mihet † Fla. Bar No. [email protected] K. Gannam † Fla. Bar No. 240450

[email protected] IBERTY C OUNSEL P.O. BOX 540774Orlando, FL 32854-0774(800)671-1776(407)875-0770 FAX† Admitted pro hac vice

A. Eric Johnston (ASB-2574-H38A) [email protected] 1071200 Corporate DriveBirmingham, AL 35242(205)408-8893(205)408-8894 FAX

Samuel J. McLure (MCL-056)[email protected] Adoption Law FirmPO Box 2396Montgomery, AL 36102(334)612-3406

Attorneys for Petitioner

E-Filed02/23/2015 @ 10:41:34 AM

Honorable Julia Jordan WellerClerk Of The Court


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TABLE OF CONTENTS

TABLE OF CONTENTS ......................................... i

TABLE OF AUTHORITIES .................................... iii

PRELIMINARY STATEMENT ................................... vii

INTRODUCTION AND SUMMARY OF ARGUMENT ...................... 1

ARGUMENT .................................................. 3

I. RELATORS HAVE STANDING UNDER THE PUBLIC INTERESTSTANDING RULE WHICH IS WELL-SETTLED IN ALABAMA ANDTHROUGHOUT THE UNITED STATES. ........................ 3

II. RELATORS PROPERLY BRING THIS ACTION IN THE NAME OFTHE STATE TO ENFORCE A DUTY OWING TO THE PUBLIC. .... 17

A. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is a duty owing to the public. .............. 17

B. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is not a duty owing to government. .......... 22

III. THIS COURT’S JURISDICTION IS PROPERLY INVOKED UNDERCLEAR PRECEDENT. .................................... 28

A. This Court has original jurisdiction over amandamus petition directed to a judge of probateto command performance of a ministerial duty. .... 28

B. This Court may exercise jurisdiction to issue asupervisory writ to any inferior court whennecessary to afford full relief and do completejustice. ......................................... 31

IV. RELATORS ARE ENTITLED TO MANDAMUS RELIEF. ........... 38

A. The Petition is procedurally complete. ........... 38

B. Respondents’ arguments for dismissal of thePetition are based on fallacies . ................. 41


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CONCLUSION ............................................... 48

CERTIFICATE OF SERVICE ................................... 49

ATTACHMENTS

Verification of Katherine Robertson ............. Exhibit A

Verification of Joseph Godfrey .................. Exhibit B

Verification of Roger K. Gannam ................. Exhibit C


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TABLE OF AUTHORITIES

CASES

Alabama Alcoholic Beverage Control Bd. v. Henri – DuvalWinery, L.L.C. , 890 So. 2d 70 (Ala. 2003) ... 4,5,6,7,14,15

Anzalone v. Admin. Office of Trial Court ,932 N.E.2d 774 (Mass. 2010) ............................ 10

Ashley v. State ,19 So. 917 (1896) ...................................... 30

Bryce v. Burke ,55 So. 635 (Ala. 1911) ............................... 4,14

Conde-Vidal v. Garcia-Padilla ,No. 14-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014) .... 44

DeBoer v. Snyder ,772 F.3d 388 (6th Cir. 2014) ........................ 19,44

Denson v. Bd. of Trustees of Univ. of Ala. ,23 So. 2d 714 (Ala. 1945) .............................. 37

Ex parte Ackles ,

840 So. 2d 145 (Ala. 2002) ............................. 39 Ex parte Alabama Textile Products Corp. ,

7 So. 2d 303 (Ala. 1942) ................ 32,33,34,35,36,37

Ex parte Barger, 11 So. 2d 359 (Ala. 1942) .............................. 37

Ex parte Collins ,84 So. 3d 48 (Ala. 2010) ............................ 38,39

Ex parte Jim Walter Resources, Inc. ,91 So. 3d 50 (Ala. 2012) ...................... 28,29,30,31

Ex parte Johnson ,485 So. 2d 1098 (Ala. 1986) ............................ 38

Ex parte King ,50 So. 3d 1056 (Ala. 2010) ........................... 6,14


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Ex parte Tubbs ,585 So. 2d 1301 (Ala. 1991) ............................ 37

Florida Indus. Com'n v. State ex rel. Orange State Oil Co. ,21 So. 2d 599 (Fla. 1945) .............................. 11

Gordon v. State ex rel. Cole ,185 So. 889 (Ala. 1939) ................................ 39

Gray v. State ex rel. Garrison ,164 So. 293 (Ala. 1935) ................................ 20

Hector F. v. El Centro Elementary Sch. Dist. ,173 Cal. Rptr. 3d 413 (Cal. Ct. App. 2014) ........... 9,10

Homan v. State ex rel. Smith ,89 So. 2d 184 (Ala. 1956) ......................... 4,20,21

Jackson Sec. & Inv. Co. v. State ,2 So. 2d 760 (Ala. 1941) ............................... 16

Jones v. Black, 48 Ala. 540 (1872) .................................... 5,6

Kendrick v. State ex rel. Shoemaker ,54 So. 2d 442 (Ala. 1951) ............. 4,12,13,14,15,20,27

Lockhart v. Fretwell ,506 U.S. 364 (1993) .................................... 46

Lujan v. Defenders of Wildlife ,504 U.S. 555 (1992) ..................................... 6

Marone v. Nassau Cnty. ,967 N.Y.S.2d 583 (Sup. Ct. 2013) ................... 8,9,16

Marshall County Bd. Educ. v. State ex rel. Williams ,42 So. 2d 24 (Ala. 1949) ............................... 21

Maynard v. Hill ,125 U.S. 190 (1888) .................................... 18

Morrison v. Morris ,141 So. 2d 169 (Ala. 1962) ..................... 4,22,25,26


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Muhammad v. Ford, 986 So.2d 1158 (Ala. 2007) .............................. 6

ProgressOhio.org, Inc. v. JobsOhio ,973 N.E.2d 307 (Ohio Ct. App. 2012) .................... 10

Protect MI Constitution v. Sec'y of State ,824 N.W.2d 299 (Mich. Ct. App. 2012) ................... 10

Robicheaux v. Caldwell ,2 F. Supp. 3d 910 (E.D. La. 2014) ...................... 44

Rodgers v. Meredith ,146 So. 2d 308 (Ala. 1962) .................... 11,12,14,20

Rogers v. Hechler ,348 S.E.2d 299 (W.V. 1989) ............................. 10

Save the Plastic Bag Coal. v. City of Manhattan Beach ,254 P.3d 1005 (Cal. 2011) .............................. 16

Skinner v. State of Okla. ex rel. Williamson ,316 U.S. 535 (1942) .................................... 18

Southern LNG, Inc. v. MacGinnitie ,755 S.E.2d 683 (Ga. 2014) .............................. 10

State ex rel. Chilton County v. Butler ,142 So. 531 (Ala. 1932) .................... 22,23,24,25,26

State ex rel. Cittadine v. Indiana Dep't of Transp. ,790 N.E.2d 978, 983 (Ind. 2003) ....................... 7,8

State ex rel. Clark v. Johnson ,904 P.2d 11 (N.M. 1995) ................................ 10

State ex rel. Foshee v. Butler ,142 So. 533 (Ala. 1932) ............................. 24,25

State ex rel. Kansas City Power & Light Co. v. McBeth ,322 S.W.3d 525 (Mo. 2010) .............................. 10

State ex rel. Ohio Motorists Ass'n v. Masten ,456 N.E.2d 567 (Ohio Ct. App. 1982) .................... 16


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Stumes v. Bloomberg ,551 N.W.2d 590 (S.D. 1996) ............................. 10

Town of Cedar Bluff v. Citizens Caring for Children , 904So. 2d 1253 (Ala. 2004) ............................... 5,6

Wells v. Purcell ,592 S.W.2d 100 (Ark. 1979) .......................... 10,11

CONSTITUTIONAL PROVISIONS

Art. I, § 36.03, Ala. Const. 1901 .................. 17,20,35

Art. VI, § 140, Ala. Const. 1901 ......................... 32

STATUTES

§ 6-6-640, Ala. Code 1975 ................................ 38

§ 10A-1-2.11, Ala. Code 1975 ............................. 16

§ 12-2-7, Ala. Code 1975 ................................. 32

§ 12-22-21, Ala. Code 1975 ............................ 29,30

§ 30-1-19, Ala. Code 1975 ............................. 17,20

OCGA § 9 – 6 – 24 ............................................ 10RULES

Ala. R. App. P. 21 ....................................... 38

Ala. R. Evid. 201 ........................................ 40


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PRELIMINARY STATEMENT

The Emergency Petition for Writ of Mandamus commencing

this case, and in support of which this Reply Brief is filed,

will be referred to herein as the “Petition” . Capitalized

terms used but not otherwise defined herein will have the

same meanings ascribed to them in the Petition.

Respondents K ing and Ragland’s Joint Answer and Brief in

Support in Response to Petition for Writ of Mandamus will be

referred to herein as the “King - Ragland Answer”.

The Answer and Brief of Respondent Robert M. Martin will

be referred to herein as the “Martin Answer” .

The Answer and Brief of Respondent Steven L. Reed will

be referred to herein as the “Reed Answer”.


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INTRODUCTION AND SUMMARY OF ARGUMENT

This Petition has generated an impressive pile of paper,

both in this Court and in the United States District Court

for the Southern District of Alabama. 1 Nevertheless, the

basic premise of the Petition remains straightforward and

essentially undisputed: until a court of competent

jurisdiction purports to require otherwise, Alabama probate

judges have no “discretion” to violate the law of Alabama,

the Constitution of Alabama, and the clearly expressed will

of the People of Alabama.

Respondents are not parties to the federal court case

that purported to invalidate Alabama’s marriage laws and

Constitution, and they do not dispute that the federal court

has no jurisdiction over them. 2 As such, Respondents have no

1 After being served with this Petition, Respondent Judge Kingfiled an “Emergency Motion to Intervene” in the federallitigation that gives rise to this controversy, and askedfederal judge Callie Granade to require the dismissal of theinstant Petition in this Court. Strawser v. Strange , Case No.14-cv-00424 (S.D. Ala., dkts. 58, 59). That court denied hisrequest, as well as a similar request by plaintiffs in thatcase. Id . at dkts. 66, 67).

2 Since the filing of this Petition, one Alabama probatejudge, Don Davis, was made a party to the federal Strawser litigation, and subjected to that court’s orders. Judge Davisis not a respondent to this Petition. The Petition seeks


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more “discretion” to follow the non -binding hypotheses of

that court any more than they could follow the courts of

Hawaii, Massachusetts or Timbuktu. If Respondents are

inclined to follow the recommendations of federal courts in

cases to which they are not parties, they could follow those

federal courts – both trial and appellate – that have upheld

the constitutionality of natural, man-woman marriage,

consistent with the Alabama Constitution and law.

Respondents, however, do not want to follow those

decisions. They also do not want the Court to reach the merits

of this Petition, and thus they raise myriad procedural

objections to avoid this Court’s scrutiny of th eir unlawful

conduct. None have merit.

This Court has repeatedly recognized the standing of

Alabama citizens to seek via mandamus the enforcement of an

official’s public duties on matters of public concern. This

is the well-settled law not only in Alabama but in numerous

other jurisdictions. Tellingly, Respondents ignore this large

body of law altogether, and instead devote the bulk of their

relief against all other probate judges who are not subjectto any order from any court of competent jurisdiction.


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responses to a different set of standing requirements which

has no application in this context.

Moreover, only three short years ago this Court

unanimously held that it has original jurisdiction over

extraordinary writ applications to require probate judges to

perform their ministerial duties. Respondents either ignore

this precedent or implicitly ask this Court to overrule it,

for no good reason.

At the end of the day, there are no procedural roadblocks

for this Court to reach the merits of this Petition, to grant

the requested relief, and to return the rule of law to

Alabama. Relators respectfully request the Court to issue the

writ.

ARGUMENT

I. RELATORS HAVE STANDING UNDER THE PUBLIC INTEREST STANDINGRULE WHICH IS WELL-SETTLED IN ALABAMA AND THROUGHOUT THEUNITED STATES.

The rule of public interest standing, sometimes referred

to as the public interest exception, is well-settled in

Alabama and throughout the United States. Under this standingprinciple, Relators have standing to bring this mandamus

petition, in the name of the State, to compel Respondents to

perform their public duties:


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It is now the settled rule in Alabama thata mandamus proceeding to compel a publicofficer to perform a legal duty in whichthe public has an interest, asdistinguished from an official dutyaffecting a private interest merely, isproperly brought in the name of the Stateon the relation of one or more personsinterested in the performance of such dutyto the public . . . .

Kendrick v. State ex rel. Shoemaker , 54 So. 2d 442, 447 (Ala.

1951); see also Morrison v. Morris , 141 So. 2d 169, 170 (Ala.

1962) (same);Homan v. State ex rel. Smith

, 89 So. 2d 184,186 (Ala. 1956) (same). Indeed, this has been well-settled in

Alabama for over 100 years: “ There is no doubt that, where

the writ is sued out to require the performance of a definite

duty to the public, the proceeding must proceed in the name

of the state as plaintiff.” Bryce v. Burke , 55 So. 635, 638

(Ala. 1911) (emphasis added).

Though Respondents walk arm-in-arm down the primrose path

of injury in fact (King-Ragland Ans. at 7-14; Martin Ans. at

8-16; Reed Ans. at 4-19.), under the general standing rule,

this Court must not follow their lead. As an initial matter,

this Court did not fundamentally change the law of standing

in Alabama in 2003 when it adopted the federal formulation of

the general standing rule focusing on injury. See Alabama

Alcoholic Beverage Control Bd. v. Henri – Duval Winery, L.L.C. ,


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890 So. 2d 70, 74 (Ala. 2003). Rather, the Court “effectively

restated the standard . . . using language adopted from the

Supreme Court of the United States.” Town of Cedar Bluff v.

Citizens Caring for Children , 904 So. 2d 1253, 1256-57 (Ala.

2004) (emphasis added). The Cedar Bluff Court explained the

development as follows:

In Jones v. Black, 48 Ala. 540 (1872), thisCourt first articulated a test fordetermining whether a party has the

necessary standing to challenge theconstitutionality of an act of theLegislature. We stated then:

“A party who seeks to have an act of thelegislature declared unconstitutional,must not only show that he is, or willbe injured by it, but he must also showhow and in what respect he is or will beinjured and prejudiced by it. Injury will not be presumed; it must be shown.”

48 Ala. at 543. In Alabama AlcoholicBeverage Control Board v. Henri – DuvalWinery, LLC, 890 So.2d 70, 74 (Ala. 2003),a party challenged the constitutionalityof Alabama's Native Farm Winery Act, § 28 –6 – 1 et seq., Ala. Code 1975. In that case,this Court effectively restated thestandard articulated in Jones, usinglanguage adopted from the Supreme Court of

the United States :“A party establ ishes standing to bringa challenge [on constitutional grounds]when it demonstrates the existence of(1) an actual, concrete and

particularized ‘ injury in fact’ —‘aninvasion of a legally protected


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interest’; (2) a ‘causal connectionbetween the injury and the conductcomplained of’; and (3) a likelihoodthat the injury will be ‘redressed by afavorable decision.’ Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 – 61(1992).”

904 So. 2d at 1256-57 (second emphasis in original).

By comparing this Court’s own standing formulation from

1872’s Jones v. Black (focusing on injury), with the adopted,

three-pronged formulation from the federal case Lujan v.

Defenders of Wildlife (focusing on injury), the Cedar Bluff

Court showed that this was no seismic shift in Alabama

standing law. 3 The Court simply used the federal formulation

to state its own entrenched standing law more precisely. See

Ex parte King , 50 So. 3d 1056, 1059 (Ala. 2010) (“[I]n 2003

this Court adopted the . . . more precise[] rule regarding

standing based upon the test used by the Supreme Court of the

United States . . . .”); Muhammad v. Ford, 986 So.2d 1158,

1162 (Ala. 2007) (“In [ Henri – Duval ] this Court adopted a more

precise rule regarding standing articulated by the United

States Supreme Court . . . .”).

3 Unlike the instant case, the Cedar Bluff standinganalysis was in the context of a declaratory challenge to theconstitutionality of a state statute. 904 So. 2d at 1255.


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What this Court did not do in Henri-Duval in 2003, and

has not done since , is abolish the equally entrenched standing

rule applicable in mandamus cases seeking to compel

performance of a public duty. To be sure, the rule is well

known in the modern law of other states, variously referred

to as the “public standing exception”, “public standing

doctrine”, “public interest standing”, etc. For example, the

Indiana Supreme Court in 2003 concluded, after surveying the

laws of numerous accordant states, “T he public standing

doctrine , which applies in cases where public rather than

private rights are at issue and in cases which involve the

enforcement of a public rather than a private right, continues

to be a viable exception to the general standing requirem ent.”

State ex rel. Cittadine v. Indiana Dep't of Transp. , 790

N.E.2d 978, 983 (Ind. 2003) (emphasis added). In affirming

the viability of the rule, the court explained:

Under our general rule of standing, onlythose persons who have a personal stake inthe outcome of the litigation and who showthat they have suffered or were in

immediate danger of suffering a directinjury as a result of the complained-ofconduct will be found to have standing.Absent this showing, complainants may notinvoke the jurisdiction of the court. Itis generally insufficient that a plaintiffmerely has a general interest common to allmembers of the public.


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[Relator] seeks to avoid this general ruleby invoking the public standing exception .He does not contend that he has suffered aspecific injury, but argues that, becausethe object of the mandate is to procurethe enforcement of a public duty, he hasstanding under Indiana's public standingdoctrine. As we recently noted in Schloss:

Indiana cases recognize certainsituations in which public rather thanprivate rights are at issue and holdthat the usual standards forestablishing standing need not be met.This Court held in those cases that when

a case involves enforcement of a publicrather than a private right theplaintiff need not have a specialinterest in the matter nor be a publicofficial.

Specifically, the public standing doctrine eliminates the requirement that therelator have an interest in the outcome ofthe litigation different from that of thegeneral public.

The public standing doctrine has beenrecognized in Indiana case law for morethan one hundred and fifty years.

Id. at 979-80 (second emphasis in original) (citations

omitted).

More recently, the historical yet still vital “public

interest standing” was invok ed in a 2013 New York mandamus

proceeding:

However, in matters of great publicinterest, a citizen may maintain a mandamus proceeding to compel a public officer to


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do his or her duty. The office which thecitizen performs is merely one ofinstituting a proceeding for the generalbenefit, the only interest necessary isthat of the people at large. One who is acitizen, resident and taxpayer hasstanding to bring an Article 78 proceedingfor the performance by officials of theirmandatory duties, even without a personalgrievance or a personal interest in theoutcome. The public interest standing of acitizen has been extended to corporationsas well as other organizations.

In fact, as far back as the Nineteenth

Century, the Court of Appeals held, thewrit of mandamus may, in a proper case,and in the absence of an adequate remedyby action, issue . . . on the relation ofone, who, in common with all othercitizens, is interested in having some actdone, of a general public nature, devolvingas a duty upon a public officer or body,who refuse to perform it.

Marone v. Nassau Cnty. , 967 N.Y.S.2d 583, 589 (Sup. Ct. 2013)

(emphasis added) (internal quotations and citations omitted).

Still more recently, the California Court of Appeals

affirmed the vitality of the “public interest exception” in

2014:

It is true that ordinarily the writ of

mandate will be issued only to persons whoare beneficially interested. Yet, in[1945, the California Supreme Court]recognized an exception to the general rule where the question is one of public rightand the object of the mandamus is toprocure the enforcement of a public duty,the relator need not show that he has any


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legal or special interest in the result,since it is sufficient that he isinterested as a citizen in having the lawsexecuted and the duty in question enforced.The exception promotes the policy of

guaranteeing citizens the opportunity toensure that no governmental body impairsor defeats the purpose of legislationestablishing a public right. It has oftenbeen invoked by California courts.

Hector F. v. El Centro Elementary Sch. Dist. , 173 Cal. Rptr.

3d 413, 418 (Cal. Ct. App. 2014) (emphasis added) (internal

quotations and citations omitted). The same public standingrule (or doctrine, or exception) is found throughout the

nation. 4

4 See, e.g. , Southern LNG, Inc. v. MacGinnitie , 755 S.E.2d683, 687 (Ga. 2014) (“‘Where the question is one of public

right and the object is to procure the enforcement of a publicduty, no legal or special interest need be shown [to petitionfor mandamus], but it shall be sufficient that a plaintiff isinterested in having the laws executed and the duty inquestion enforced.’” (quoting OCGA § 9– 6 – 24)); Protect MIConstitution v. Sec'y of State , 824 N.W.2d 299, 306 (Mich.Ct. App. 2012), rev'd on other grounds , 819 N.W.2d 428 (Mich.2012); ProgressOhio.org, Inc. v. JobsOhio , 973 N.E.2d 307,313 (Ohio Ct. App. 2012); State ex rel. Kansas City Power &Light Co. v. McBeth , 322 S.W.3d 525, 531 (Mo. 2010) (“[W]her e

the duty sought to be enforced is a simple, definiteministerial duty imposed by law, the threshold for standingis extremely low.”); Anzalone v. Admin. Office of Trial Court ,932 N.E.2d 774, 781 (Mass. 2010); Stumes v. Bloomberg , 551N.W.2d 590, 592 (S.D. 1996); State ex rel. Clark v. Johnson ,904 P.2d 11, 17-18 (N.M. 1995); Rogers v. Hechler , 348 S.E.2d299 (W.V. 1989); Wells v. Purcell , 592 S.W.2d 100, 103 (Ark.


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Whether labeled a rule, a doctrine, or an exception,

there is no essential difference between Alabama’s public

standing rule, as articulated in Kendrick and the other cases

cited above, and the public standing rule widely recognized

throughout the United States. All respect the injury in fact

requirement for general standing, while equally respecting

the alternative rule (or exception) for public interest

mandamus cases. Two Alabama cases in particular illustrate

this fidelity.

First, in Rodgers v. Meredith , 146 So. 2d 308 (Ala.

1962), a clerk of the circuit court petitioned, in his own

name, for a writ of mandamus to compel the county sheriff to

perform his statutory duty to file written reports with the

clerk regarding the prisoners entering and leaving the county

1979) ("The rule is well settled, that when . . . theproceedings are for the enforcement of a duty affecting nota private right, but a public one, common to the wholecommunity, it is not necessary that the relator should havea special interest in the matter."); Florida Indus. Com'n v.State ex rel. Orange State Oil Co. , 21 So. 2d 599, 600-01(Fla. 1945) (“We also said in that case that where thequestion is one of public right and the object of the mandamusis to procure the enforcement of a public duty, the relatorneed not show that he has any legal or special interest inthe result, it being sufficient that he is interested as acitizen in having the law executed and the duty in questionenforced.”).


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jail. The Court held that compliance with the statute was

mandatory for the sheriff. Id. at 314. But the Court also

held that the circuit clerk did not have standing to seek

mandamus to compel the sheriff’s performance because the

statute conferred no private right on the clerk. Id. In so

holding, the Court distinguished the private standing on

which the clerk relied in error, from the public standing on

which the clerk could have relied:

We hold that the duty here placed on thesheriff by [the reporting statute] is alegal duty in which the public has aninterest, as distinguished from anofficial duty affecting a private interestmerely. Under the settled rule, petitionfor mandamus to compel a public officer toperform such duty is properly brought inthe name of the state on the relation ofone or more persons interested in theperformance of that duty. The instantpetition was not so brought.

Id. at 314- 15. Thus, whereas the circuit clerk’s individual

injury was insufficient for the clerk to bring the action

privately, the Court held the public’s interest sufficient

for the clerk to refile the action as relator in the name of

the state. Id. at 315.

Second, in Kendrick , a citizen relator, in the name of

the state, sued his county commission to force them to provide

voting machines for elections in compliance with a state


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statute. The statute required the county to provide voting

machines for all elections in the county, but gave the

commission discretion not to provide machines in any precinct

having less than 100 registered voters. Id. at 447. The

respondents challenged the relator’s petition on the basis

that he failed to show the requested relief would redress any

injury particular to him, because he failed to show he voted

in a precinct entitled to provision of voting machines. Id.

In rejecting the respondents’ challenge to the relator’s

standing, the Court cited the public standing rule:

It is now the settled rule in Alabama thata mandamus proceeding to compel a publicofficer to perform a legal duty in whichthe public has an interest, asdistinguished from an official dutyaffecting a private interest merely, isproperly brought in the name of the Stateon the relation of one or more personsinterested in the performance of such dutyto the public . . . .

Id. Applying the public standing rule, the Court concluded:

It is clear that the act which petitionerseeks to have performed does not concernthe sovereign rights of the State and is

one in which the public, all the people ofJefferson County, have an interest.Petitioner’s right to have the act

performed is not dependent upon the factthat he may or may not vote in a voting

place where the governing body is requiredto install a voting machine .


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Id. (emphasis added).

Thus, whereas in Rodgers the petitioner lacked standing

because he had no particularized injury and failed to invoke

public standing, in Kendrick the relator properly invoked

public standing and was excused from showing particularized

injury. Taken together, it is clear this Court was well-aware

of both rules: the general standing rule requiring

particularized injury, and the public standing rule

conferring standing on a member of the public as a matter of

law, without particularized injury, when enforcement of a

public duty is sought by mandamus.

Injury in fact has always been the primary focus of

Alabama’s general standing rule. See Ex parte King, 50 So. 3d

at 1059 (“Traditionally, Alabama courts have focused

primarily on the injury claimed by the aggrieved party to

determine whether that party has standing . . . .”). For over

a century, Alabama has equally recognized the rule of public

interest standing. See, e.g. , Bryce , 55 So. at 638. The

formulaic restatement of the general standing rule adopted by

this Court in Henri – Duval did not abolish public interest


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standing, expressly or by implication. 5 Respondents, by

devoting so much argument to particularized injury under the

general rule, have merely pooled their ignorance of the

applicable standard in this case, resulting in a straw man to

whom this Court owes no heed. 6

As evident from the multitude of cases above, under the

public interest standing rule all that Relators must show

this Court is that (1) they are citizens of Alabama, and (2)

they are seeking t o require a “ public officer to perform a

legal duty in which the public has an interest.” Kendrick , 54

So. 2d at 447. That Relators are citizens of Alabama is not

disputed by Respondents, and is conclusively established in

5 Conceding the inconvenience of public standing to hisposition, Respondent Reed goes so far as to plead forabolishment of public standing now . (Reed Ans. at 23-24.)This bald attempt to prevent consideration of the merits ofRelators’ Petition only bolsters both the historicity andcontinued vitality of the public standing rule in Alabama.

6 In their confusion, Respondents King and Ragland attemptto rewrite the public standing rule by superimposing the novelrequirement of “a concrete personal benefit from the relief

sought in order to acquire standing,” even calling it “well -established jurisprudence.” (King -Ragland Ans. at 15.)However, they utterly fail to explain the source of thisphantom requirement, given the actual jurisprudence of publicstanding which expressly does not require any personalbenefit at all.


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the Petition (Pet., Stmt. of Facts, ¶¶ 10-11), and in the

Verifications of Katherine Robertson (attached as Exhibit A ,

at ¶¶ 3,5), and Joseph Godfrey (attached as Exhibit B , at ¶¶

3,5). Moreover, that this Petition is brought by public

interest, non-profit corporate entities rather than

individuals is of no moment whatsoever, because public

interest standing is available to citizen groups and

corporations as well as individuals. 7

As for the second requirement, it ought to be plainly

evident that the Alabama public has an interest in

7 See, e.g. , Marone , 967 N.Y.S.2d at 589 (“The publicinterest standing of a citizen has been extended to

corporations as well as other organizations.”); Save thePlastic Bag Coal. v. City of Manhattan Beach , 254 P.3d 1005,1013 (Cal. 2011) (“corporate entities should be as free asnatural persons to litigate in the public intere st”); Stateex rel. Ohio Motorists Ass'n v. Masten , 456 N.E.2d 567, 573n.4 (Ohio Ct. App. 1982) (“We are persuaded that an Ohiocorporation may have as great an interest as a natural personin seeking the just enforcement of state laws, and may beconsidered to be a citizen of the state of Ohio entitled toinstitute an action in mandamus.”); c.f. Jackson Sec. & Inv.Co. v. State , 2 So. 2d 760, 764 (Ala. 1941) (“The general

rule is recognized everywhere that a corporation is a citizen,resident or inhabitant of the state under whose laws it wascreated . . . .”); § 10A -1- 2.11, Ala. Code 1975 (“[W]hetheror not expressly stated in its governing documents, a domesticentity has the same powers as an individual to take actionnecessary or convenient to carry out its business andaffairs.”).


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Respo ndents’ faithful compliance with Alabama’s marriage

laws. However, Respondents have curiously chosen to dispute

this, so Relators demonstrate it in the next section.

II. RELATORS PROPERLY BRING THIS ACTION IN THE NAME OF THESTATE TO ENFORCE A DUTY OWING TO THE PUBLIC.

A. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is a duty owing to the public.

Relators have public standing to seek enforcement of

Alabama’s marriage laws by mandamus ( see supra § I) because

a pr obate judge’s duty to issue marriage licenses in

accordance with those laws is unquestionably a duty owing to

the public. The Alabama public’s interest in enforcement of

both the Marriage Amendment and the Marriage Act is evident

in the language of the laws themselves:

Marriage is inherently a uniquerelationship between a man and a woman. Asa matter of public policy , this state hasa special interest in encouraging,supporting, and protecting this uniquerelationship in order to promote, amongother goals, the stability and welfare ofsociety and its children. A marriagecontracted between individuals of the same

sex is invalid in this state.Art. 1, § 36.03(b), Ala. Const. 1901; § 30-1-19(b), Ala. Code

1975 (same). Furthermore, the public’s interest in

enforcement of the Marriage Amendment, in particular, is


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evidenced by its ratification in 2006 by 81% of Alabama

voters . 8

The United States Supreme Court has recognized the

importance to the public of preserving the institution of

marriage, observing, “Marr iage and procreation are

fundamental to the very existence and survival of the race.”

Skinner v. State of Okla. ex rel. Williamson , 316 U.S. 535,

541 (1942). And, in the prior century:

Other contracts may be modified,restricted, or enlarged, or entirelyreleased upon the consent of the parties.Not so with marriage. The relation onceformed, the law steps in and holds theparties to various obligations andliabilities. It is an institution, in the

maintenance of which in its purity the public is deeply interested , for it is the

foundation of the family and of society,without which there would be neithercivilization nor progress.

Maynard v. Hill , 125 U.S. 190, 211 (1888) (emphasis added).

The “purity” of the institution of marriage to which the

U.S. Supreme Court referred undoubtedly included its natural,

8 Certification of Constitutional Amendment ElectionResults (June 6, 2006), http://alabamavotes.gov/downloads/election/2006/primary/ProposedAmendments-OfficialResultsCertification-06-28-2006.pdf (last visitedFebruary 23, 2015).


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historical definition as the unique union of a man and a

woman:

For better, for worse, or for more of thesame, marriage has long been a socialinstitution defined by relationships

between men and women . So long defined, thetradition is measured in millennia, notcenturies or decades. So widely shared, thetradition until recently had been adoptedby all governments and major religions ofthe world.

DeBoer v. Snyder , 772 F.3d 388, 395-96 (6th Cir. 2014)

(emphasis added). 9

Given the historic importance of the marriage institution

to “the stability and welfare of society,” as expressly

recognized in both the Marriage Amendment and the Marriage

Act, the Alabama “ public is deeply interested” in the

performance of the duties established by these laws, by the

probate judges entrusted with performing them. These duties

owing to the public expressly include the duty not to issue

9

Cert. granted sub nom.

Obergefell v. Hodges

, No. 14-556,2015 WL 213646 (U.S. Jan. 16, 2015) and cert. granted subnom. Tanco v. Haslam , No. 14-562, 2015 WL 213648 (U.S. Jan.16, 2015) and cert. granted, No. 14-571, 2015 WL 213650 (U.S.Jan. 16, 2015) and cert. granted sub nom. Bourke v. Beshear ,No. 14-574, 2015 WL 213651 (U.S. Jan. 16, 2015).


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marriage licenses to same-sex couples. Art. 1, § 36.03(d),

Ala. Const. 1901; § 30-1-19(d), Ala. Code 1975.

Alabama courts have consistently classified ministerial

duties imposed on public officials by statute as public duties

which can be enforced by the public in the name of the state.

For example, as shown above, this Court held in Rodgers that

a county sheriff’s statutory duty to provide written reports

of inmate population to the circuit clerk is “a legal duty in

which the public has an interest .... ’ 146 So. 2d at 314-15.

In Kendrick , also shown above, this Court held that a county

commi ssion’s statutory duty to provide voting machines for

county elections “ does not concern the sovereign rights of

the State and is one in which the public, all the people of

[the] county, have an interest.” 54 So. 2d at 447. In Gray v.

State ex rel. Garrison , 164 So. 293, 295 (Ala. 1935), the

Court held a county commissioner’s statutory duty to sign a

warrant on appropriation for a public library “a legal duty

in which there was such public interest as warranted a

proceeding by mandamus in the name of the st ate.” In Homan v.

State ex rel. Smith , 89 So. 2d 184, 186 (Ala. 1956), the Court

held the statutory duty of a board of town commissioners to

hold an election regarding annexation of a town “does not


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concern the sovereign rights of the State and is one in which

the public, all of the people of the municipalities involved,

have an interest.” And finally, in Marshall County Bd. Educ.

v. State ex rel. Williams , 42 So. 2d 24, 27 (Ala. 1949), the

Court held that a petition for mandamus to a county education

board to compel its performance of a statutory duty to allow

school enrollment only to students of a certain age “was for

the enforcement of a public duty by respondents and, therefore

. . . was properly brought in the name of the State on the

relation of the p etitioners.”

In each of the above examples, the official duty was

imposed by a state statute, and the duty owed was to the

public, not the state government. 10 The duty of probate judges

to issue marriage licenses in accordance with the Marriage

Act is likewise such a duty owing to the public, and the same

duty under the Marriage Amendment even more so given its

direct ratification by Alabama voters. Thus, Relators satisfy

the second requirement for public standing to proceed in the

name of the state.

10 See infra § II.B.


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B. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is not a duty owing to government.

Public duties are not enforceable by citizens under the

public standing rule only if “the matter concerns the

sovereign rights of the State, in which event it must be

instituted on the relation of the Attorney General .”

Morrison, 141 So. 2d at 170. “ Where the duty is owing to the

government as such, private individuals . . . cannot resort

to mandamus to enforce it.” Id. (emphasis added) (internal

quotations and citations omitted). Morrison is the third of

three cases in the only line of Alabama cases to have reserved

to the Attorney General the right to vindicate “the sovereign

rights of the State.” Id. All three of the cases involve the

state’s sovereign right to assess property values for the

levy of taxes . Careful review of the cases reveals that the

public duty of a probate judge to issue marriage licenses in

accordance with Alabama’s marriage laws is not a matter

concerning the sovereign rights of the state under this rule.

The first case in the line is State ex rel. Chilton

County v. Butler , 142 So. 531 (Ala. 1932). Chilton County

sued the state tax commissioner to force the commissioner to

assess a public utility's property in the county at 60% of


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its value instead of 45%. Id. at 532. In addition to the taxes

levied by the state based on the assessment, the amount of a

county-level tax was also dependent on the assessment. Id. at

532-33. Thus, the county sought to enforce the tax

commissioner’s statutory duty to assess the utility’s

property for the benefit of the county . 11 Id.

The Chilton County Court recognized that the assessment

of taxes “is a state prerogative in the exercise of its

sovereign power to tax, ” and that “[t]he r ight of a county .

. . to levy a tax is a bounty conferred by the state . . . . ”

Id. at 533. The Court also recognized that the state’s

conferring, to the county, of the right to levy a tax did not

include the right to enforce the tax commissioner’s duty to

assess values properly, which right is owed to the state

government. Id. at 532-33. Thus, the Court concluded the

county was “ seeking to enforce a claim which involves

sovereign capacity, rather than one which relates to a

11 Though the county intended to enforce a private right,rather than invoke public interest standing, it brought itspetition as a relator in the name of the state. Id. at 532.The Court recognized that this procedure was not unusual, butalso was not necessary. Id.


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function delegated to the count y,” which claim was reserved

to the Attorney General. 12 Id. at 533.

The second case, State ex rel. Foshee v. Butler , 142 So.

533 (Ala. 1932), was the companion case to Chilton County .

The Foshee opinion is much shorter, referring to the Chilton

County opi nion for “discussion of the pertinent principles.”

Id. at 533. Foshee is more apposite than Chilton County to

the instant case, however, because it involved a citizen

invoking public interest standing to seek mandamus in the

name of the state. Id. at 533-34. Like the county in Chilton

County , the citizen relator in Foshee sought mandamus to

compel the state tax commissioner to assess the same public

utility ’s property at 60% instead of 45%. Id. at 533-34. The

relator did not show general standing, the Court held, because

he did not seek relief for “an injury peculiar to himself.”

Id. at 534 . He also did not show public standing, however,

12 The Chilton County court distinguished the case beforeit from one in which a county could force a state officer,after having exercised the state prerogative of assessment,to then certify the assessment to the county. Id . The basisof the distinction was that the duty to certify theassessment, having already been made, "was a ministerial dutyto the performance of which the county may have a clear legalright." Id. at 533.


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because he did not seek performance of an “official duty to

the public at large.” Id. Rather, relator sought performance

of a duty owed “only to the state in its sovereign capacity.”

Id. In dismissing his petition, the court stated “[t]he

general rule is that an individual cannot enforce a right

owing to the government . . . .” Id. (emphasis added).

In Morrison , the third in this line of cases, a member

of a county board of equalization, as relator, sued the board

chairman in the name of the state, seeking to void a board

notice of changes in the assessments of certain taxpayer’s

properties, based on the board's having improperly made the

new assessments. 141 So. 2d at 169. Citing to both Chilton

County and Foshee , the tax assessment cases which preceded

Morrison , the Court similarly held that the relator could not

enforce by mandamus the tax assessment duties “‘ owing to the

state in its sovereign capacity. ’” Id. at 170 . “[P]roceedings

for the enforcement of such right are to be instituted by the

Attorney General.” Id.

Taken together, Chilton County , Foshee , and Morrison

instruct that the authority to assess taxes is a prerogative

of the state. Further, any statutory power to assess taxes is

a power conferred by the state, while the duty to assess taxes


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in a particular manner or amount is a duty owed to the state

and not the public at large. Thus, there is no public standing

for a citizen to enforce an assessment duty because “ [w]here

the duty is owing to the government . . . private individuals

. . . cannot resort to mandamus to enforce it.” Morrison, 141

So. 2d at 170 (emphasis added) (internal quotations and

citations omitted).

Nothing in this line of cases can remove the duty of an

Alabama probate judge to issue marriage licenses in

accordance with Alabama’s marriage laws from the realm of

public duties which are properly enforced by the public, under

the public standing rule. Unlike the duty to make proper tax

assessments, which owes to the government, the duty to issue

marriage licenses in accordance with the Marriage Amendment

and the Marriage Act owes to the Alabama public. ( See supra

§ II.A.) Though Respondents attempt t o argue that Relators’

claims improperly usurp the sovereign rights of the state,

they utterly fail to show how Chilton County or its progeny

can possibly support such an argument, and none of them cites

any other line of cases for the point. (King-Ragland Ans. at

18-21; Martin Ans. at 16-19; Reed Ans. at 20-24.)


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Respondent Martin, for example, merely repeats his

conflation of the general standing requirement of

particularized injury in arguing that only sovereign rights

of the state, actionable by the Attorney General, are present

“where there is no concrete personal benefit involved” for a

citizen relator. (Martin Ans. at 18.) Judge Martin even

accuses Relators of not sharing with this Court the full

counsel of Kendrick . ( Id. ) But, as shown in § II.A above,

Kendrick expressly rejected the need for any “concrete

personal benefit” to support public interest standing,

holding it did not matter to the relator’s standing whether

he personally would receive voting machines in his precinct.

Kendrick , 54 So. 2d at 447.

Respondent Reed ’s arguments for recasting Relators’

public duty claims as sovereign rights claims are also

unconvincing. Judge Reed argues that there must be a

limitation on public standing because “[a]ll laws and

executive actions affect the public in some sense, directly

or indirectly.” (Reed Ans. at 21.) But Respondent cannot point

to any authority that could limit the application of public

standing to this case. So instead, he simply asserts that

public standing should be abolished. (Reed Ans. at 23-24.)


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Finally, excluding the Marriage Amendment in particular

from enforcement by public interest standing would not only

be inconsistent with this Court’s public standing

jurisprudence, but it would also undermine the right reserved

to the people of Alabama to amend their state constitution.

Such a shift by this Court would disenfranchise millions of

Alabamians, and would infringe their constitutional right to

amend their own constitution.

III. THIS COURT’S JURISDI CTION IS PROPERLY INVOKED UNDER CLEARPRECEDENT.

A. This Court has original jurisdiction over a mandamus petition directed to a judge of probate to command performance of a ministerial

duty.

Unless this Court would reverse its own, unanimous

opinion of only three years ago, its jurisdiction over the

Petition is not only proper, but also mandatory and exclusive.

In Ex parte Jim Walter Resources, Inc. , 91 So. 3d 50 (Ala.

2012), this Court accepted jurisdiction to review a petition

for writ of mandamus directed to a judge of probate, to compel

the judge to perform a ministerial act. 91 So. 3d at 52. TheCourt explained the basis for its jurisdiction:

We note that this Court has jurisdictionto review a petition for a writ of mandamusin matters as to which this Court hasappellate jurisdiction. See § 12 – 3 – 11,


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Ala. Code 1975 (“Each of the courts ofappeals shall have and exercise originaljurisdiction in the issuance anddetermination of writs of quo warranto andmandamus in relation to matters in whichsaid court has appellate jurisdiction.”).

A probate cou rt’s application of the mortgage-recordation-tax statute is within

this Court’s jurisdiction because thecircuit court’s appellate jurisdictionover probate matters is limited and doesnot include the taxing issue involved inthis case. See § 12 – 22 – 21, Ala. Code 1975(listing probate-court matters over whichthe circuit court has appellate

jurisdiction); Oliver v. Shealey, 67 So.3d 73, 74 (Ala. 2011)(holding that appealsfrom probate court are heard first by thisCourt if the subject matter is not properfor the appeal to be heard in circuit courtand noting that “[a] circuit court’sappellate jurisdiction over an order of aprobate court is confined to sevencircumstances enumerated in § 12 – 22 –21”).

Id. (emphasis added). 13

Regarding its power to issue a writ of mandamus to a

probate court, this Court further explained:

A writ of mandamus will lie to compel acourt to perform ministerial duties. . . .In the present case, imposing therecordation tax on a mortgage recorded ina county is part of the administrative

duties of the probate judge of the countyand, as such, is a ministerial function.

13 The unanimous panel comprised Justices Bolin, Woodall,Murdock, Main, and Wise.


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Id. at 53. Thus, this Court has original jurisdiction over

mandamus petitions directed to probate judges, to perform

ministerial duties, when those duties concern issues outside

the limited categories of probate court appeals which can be

heard by a circuit court under § 12-22-21, Ala. Code 1975.

Id . at 52-53. Like the probate judge’s application of

recording tax laws at issue in Jim Walter , a probate judge’s

applicatio n of Alabama’s marriage statutes is similarly

excluded from the limited categories of circuit court

jurisdiction under § 12-22-21. And, as shown in the Petition,

“[t]he issuance of a marriage license by a judge of probate

is a ministerial and not a judicia l act.” Ashley v. State , 19

So. 917, 91 (1896). (Pet. at 12.) Thus, under Jim Walter ,

this Court has clear, original and exclusive jurisdiction

over the Petition in this case.

The Jim Walter decision disposes of Respondents’ lengthy

jurisdiction arguments. Not surprisingly, Respondents strain

to convince this Court the case says something else. For

example, Respondents King, Ragland, and Martin nonsensically

argue , “Although that case involved an original petition to

this Court, it was brought under this Co urt’s appellate

jurisdiction . . . .” ( King-Ragland Ans. at 32 n.6; Martin


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Ans. at 26 n.7.) 14 This Court, however, did not invoke its

appellate jurisdiction in Jim Walter , as suggested by

Respondents. Rather, this Court recognized that it has

original writ jurisdiction which is a corollary to its

appellate jurisdiction: “We note that this Court has

[original] jurisdiction to review a petition for a writ of

mandamus in matters as to which this Court [also] has

appellate jurisdiction.” 91 So. 3d at 52. This Court should

uphold its own precedent and disregard all Respondents’

attempts to bypass the jurisdictional authority of Jim

Walter .

B. This Court may exercise jurisdiction to issuea supervisory writ to any inferior court whennecessary to afford full relief and do completejustice.

Even if this Court did not have original and exclusive

jurisdiction over this Petition under Jim Walter , and even if

we assume for the sake of argument (without conceding) that

lower courts also have jurisdiction to entertain multiple and

separate petitions directed at judges within their geographic

14 Respondent Reed only briefly comments on Jim Walter ,attempting in vain to distinguish it by presuming to knowwhat t he Court “did not consider” in reaching its decision.(Reed Ans. at 27.)


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husband, disqualified her from unemployment compensation

benefits. Id. at 307-08. The precise question was whether

voluntarily leaving employment to join her husband in another

state, as opposed to voluntarily leaving for some other

reason, was sufficiently good cause under the act to avoid

disqualification from benefits. Id. at 309-310.

Focusing on the unique values involved in the

relationship between a husband and wife, the Court devoted

considerable attention to the question, but ultimately

concluded that the voluntary employment termination was

without good cause, which disqualified the wife from

receiving benefits. Id. at 310-11.

The Court decided to take jurisdiction over the petition,

even though a circuit court also could have exercised

jurisdiction . The Court’s decision was based on several

factors:

On account of [1] the importance of thequestion here involved, [2] its state-wideapplication, [3] the need of an earlydecision, [4] the territorially restricted

jurisdiction of the circuit court and [5]the consent of the parties, we haveconcluded in the exercise of our power anddiscretion to give consideration to themerits of the question and make decisionof it.

Id.


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Applying the factors considered in Textile Products , it

is difficult to conceive of a more compelling case than the

instant case for this Court to take jurisdiction. To begin

with, the importance of the unemployment compensation

question involved in Textile Products pales in comparison to

the importance of the question involved in the instant case:

the statewide licensure of the “unique relationship” of

marriage , promoting “the stability and welfare of society”,

pursuant to an Alabama constitutional amendment ratified by

81% of Alabama voters. 15 Art. 1, § 36.03(b), Ala. Const. 1901.

And because the important question implicates the conduct of

nearly fifty probate judges throughout the state issuing

licenses contrary to the Marriage Amendment, 16 no single

15 The question before the Textile Products Court, thoughin the arena of unemployment compensation, also concernedmarriage. In his criticism of the majority holding, one ofthe two dissenting justices highlighted the uniquesignificance of the marriage relationship to the questiondecided: “It . . . ignores the moral influence of the home

and family ties,and strikes at one of our most sacred

institutions - the home and family life.” Id. at 311 (Brown,J., dissenting) (emphasis added). To the extent the marriageaspect of the question contributed to the Court’s deeming itimportant, then a fortiori the Court should deem importantthe question in the instant case.

16 See infra , n.17.


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circuit court, or even ten circuit courts, “possess[ ] the

authority to afford to the petitioner relief as ample as this

court could grant .” Id. at 305 (emphasis added). Rather,

relegating the question to the multitude of circuit courts

necessary to cover the judges in question could not possibly

provide relief a quickly as this Court can, and virtually

ensures continuation of the legal discord and disharmony

which has taken hold in the state. This Court should take

jurisdiction because “complete justice otherwise cannot be

done .” Id. at 306 (emphasis added). Only this Court can issue

a ruling binding throughout the state, to quickly restore

uniformity and the rule of law.

Respondents incorrectly read this Court’s exercise of

jurisdiction in Textile Products as turning primarily on the

consent of the parties. (King-Ragland Ans. at 24; Martin Ans.

at 33; Reed Ans. at 28.) This, of course, cannot be true.

“[T]his Court can only act within the jurisdiction conferred

by law, and this cannot be enlarged by waiver or the consent

of the parties.” Id. at 305. Although the Court observed that

a request to take jurisdiction with no objection by a party

receives “more favorable consideration , ” consent was but one

factor cited by the Court in deciding to take jurisdiction in


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Textile Products , and the last one at that. Resp ondents’ lack

of consent to this Court’s jurisdiction in the instant case

is hardly worth considering, given the substantial weight of

the other factors favoring jurisdiction.

Respondents ’ arguments that Textile Products cannot

apply to this case because it involved a writ of certiorari

likewise have no merit. For purposes of this Court’s

jurisdiction under Textile Products , the distinction makes no

difference. In Ex parte Tubbs , 585 So. 2d 1301 (Ala. 1991),

this Court had before it a mandamus petition, and recognized

that original jurisdiction may lie “ where complete justice

cannot otherwise be done,” citing both Textile Products and

Ex parte Barger, 11 So. 2d 359 (Ala. 1942). Tubbs , 585 So. 2d

at 1302. The Tubbs Court dismissed the petition before it

only because there were “no special circumstances that

warrant . . . taking jurisdiction.” Id. And in Denson v. Bd.

of Trustees of Univ. of Ala. , 23 So. 2d 714 (Ala. 1945), this

Court likewise found that the Textile Products grounds for

jurisdiction were not satisfied in an original mandamus

petition directed to a probate judge, not that the Textile

Products grounds could not apply . 23 So. 2d 714 at 715. As

shown above, “special circumstances” abound in the instant


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case, and this Court should take jurisdiction over the

Petition to do “complete justice . ”

IV. RELATORS ARE ENTITLED TO MANDAMUS RELIEF.

A. The Petition is procedurally complete.

No Respondent takes issue with the fact that the Petition

was initially unverified. However, in their separate dissents

fro m this Court’s Order requiring Respondents to answer the

Petition, Justices Shaw and Main both expressed concern that

the Petition was unverified. (Order on Pet. for Writ of

Mandamus, at 2, 4 (Feb. 13, 2015)).

Rule 21 of the Alabama Rules of Appellate Procedure does

not require mandamus petitions filed with this Court to be

verified. Ala. R. App. P. 21. As such, this Court has held

that § 6-6-640, Ala. Code 1975, which required mandamus

petitions to be verified, has been superseded by Rule 21, and

verification is no longer required in appellate courts. See

Ex parte Johnson , 485 So. 2d 1098, 1106 (Ala. 1986) (“ [W]e

hold that the verification requirement of § 6 – 6 – 640 does not

apply as to mandamus petitions governed by the Alabama Rulesof Appellate Procedure, and the petition is not due to be

dismissed because of petitioner's failure to have it

verified. ”). See also , Ex parte Collins , 84 So. 3d 48, 49 n.1


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(Ala. 2010) (“[A] petition for a writ of mandamus filed in an

appellate court need not be verified.”).

Nevertheless, out of an abundance of caution, Relators

submit with this Reply the Verification of Katherine

Robertson (attached as Exhibit A ), the Verification of Joseph

Godfrey (attached as Exhibit B ), verifying the factual

allegations of API and ALCAP, respectively. Relators also

submit the Verification of Attorney Roger K. Gannam (attached

as Exhibit C ), verifying the authenticity of the exhibits to

the Petition, and verifying generally the facts alleged in

the Petition. See, e.g. , Ex parte Ackles , 840 So. 2d 145, 146

(Ala. 2002) (“[T]he affidavit can be made by an agent or

attorney who is conversant with the facts.”) overruled on

other grounds by Ex parte Collins , 84 So. 3d 48 (Ala. 2010);

Gordon v. State ex rel. Cole , 185 So. 889, 890 (Ala. 1939)

(“[T]he affidavit may be made by an agent or attorney

conversant with the facts.”).

Notably, no Respondent disputes any of the material facts

alleged in the Petition. Respondents do not dispute the

statements about API and ALCAP, and Respondents do not dispute

that they have granted, and will continue to grant when

requested, same-sex marriage licenses. Respondents also do


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not dispute the authenticity of the exhibits to the Petition,

offering instead some of the same documents as exhibits to

their own responses.

The only additional fact useful for this Court’s

adjudication of the Petition is that, since the filing of the

Petition, a large number of other probate judges within

Alabama have also begun issuing same-sex marriage licenses in

derogation of the Alabama Constitution and Alabama law,

which, as explained in § III.B, above, provides another

independent basis for this Court’s jurisdiction and urgent

intervention. Respondents do not dispute this, and this Court

may judicially notice this generally known and

incontrovertible development. See Ala. R. Evid. 201(f)

(“Judicial notice may be taken at any stage of the

proceeding.”); 201(b) ( allowing judicial notice of “fact[s]

. . . not subject to reasonable dispute [and] generally

known”). That a majority of Alabama’s probate judges are now

issuing same-sex marriage licenses has been widely reported

and is generally known in Alabama. 17

17 See, e.g. , Kim Chandler, Alabama Judges Resistance toSame-sex Marriage Crumbles , Associated Press (Feb. 14, 2015),


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In sum, there is no obstacle, procedural or substantive,

preventing this Court from reaching the merits of this

Petition, providing the requested relief, and restoring the

rule of law in Alabama.

B. Respondents’ arguments for denial of thePetition are based on fallacies.

Respondents’ Answers repeatedly make rhetorical

assertions that lack legal merit, either in their premises or

their conclusions. Following is a sampling of such fallacies,

available at http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/02/14/alabama-judges-resistance-sex-marriage-crumbles/23404127/ (last visited

Feb. 20, 2015) (reporting majority of Alabama probate judgesissuing marriage licenses to same-sex couples); CampbellRobertson, Most Alabama Judges Begin to Issue Licenses forSame-Sex Marriages , N.Y.Times (Feb. 13, 2015), available athttp://www.nytimes.com/2015/02/14/us/most-alabama-counties-are-granting-same-sex-marriage-licenses.html (last visitedFeb. 20, 2015); Alabama Judges’ Stand Against Gay MarriageCrumbles , Chicago Tribune (Feb. 13, 2015), available athttp://www.chicagotribune.com/news/nationworld/chi-alabama-gay-marriage-20150213-story.html (last visited Feb. 20, 2015); Richard Fausset,Fresh Challenge to Gay Marriage Increases Confusion inAlabama , N.Y.Times (Feb. 18, 2015), available athttp://www.nytimes.com/2015/02/19/us/fresh-challenge-to-gay-marriage-increases-confusion-in-alabama.html?_r=0 (lastvisited Feb. 20, 2015) (“[M]ost county probate judges inAlabama are now issuing marriage licenses to same-sexcouples.”).


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variously presented by Respondents (“variously,” as they are

not consistent with one another):

Fallacy #1: That a non-binding federal

trial court order transforms a ministerialduty into a discretionary duty.

Respondents King, Ragland, and Martin concede that, prior

to the Searcy and Strawser Injunctions, no probate judge had

the discretion to issue a marriage license to a same-sex

couple. (King-Ragland Ans. at 28-29; Martin Ans. at 23.) These

Responde nts also concede, “the rulings in the federal court

cases are not necessarily binding on any probate judge . . .

.” (King -Ragland Ans. at 29; Martin Ans. at 23.) From these

concessions, however, they conclude that they are now due

discretion to “respect the federal decision” and disobey

Alabama’s marriage laws because Relators have not supplied

authority to the contrary. (King-Ragland Ans. at 29-30;

Martin Ans. at 23-25.) This reasoning is patently fallacious.

Furthermore, Respondents claim their preference is to

“allow the issue to be worked out through the proper legal

channels by the proper legal authorities . . . .” (King -

Ragland Ans. at 30; Martin Ans. at 25.) But observing “the

proper legal channels,” and voluntarily disregarding

Alabama’s marriage laws in “respect” of a non -binding federal


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order, are mutually exclusive positions; no probate judge can

do both.

Respondent Reed invokes Judge Granade’s hypothesis that,

though not bound, probate judges not before her court “may

certainly follow her ruling . . . .” (Reed Ans. at 34.)

However, neither Judge Reed nor Judge Granade reveals how a

federal order which is non-binding on the issue of what a

probate judge must do as a matter of duty, is nonetheless

binding on the issue of what a probate judge may do as a

matter of discretion. Because Judge Granade has no

jurisdiction over Respondents, her opinions have no more

application to Respondents than the opinions of courts from

distant states (or countries). Respondents would be foolhardy

to argue that they “may certainly follow” the rulings of

faraway trial courts. Their contention with respect to Judge

Grenade is equally meritless. If Respondents are so intent on

following the decisions of federal courts which have no

jurisdiction over them, they should at least follow the well-

reasoned opinions of trial and appellate courts that have


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upheld the constitutionality of natural, man-woman marriage. 18

Those decisions are consisted with the Alabama law and

Constitution and do not require Respondents to violate their

sworn duties to uphold them.

Finally, each Respondent appeals to the possibility of

being sued, in a new, original lawsuit, by new plaintiffs

burdened with proving their own case, as grounds for endowing

Respondents with discretion to disregard Alabama’s marriage

laws. (King-Ragland Ans. at 29; Martin Ans. at 24; Reed Ans.

at 36.) Here Respondents urge a rule of convenience, not a

rule of law. 19 If fear of lawsuits in our litigious world

would suffice to confer discretion on public officials to

abandon their sworn duties to uphold the law, all law would

be in a precarious position indeed. Public officials are sued

all the time, for all kinds of reasons, not all of them

legitimate. When they are sued, public officials defend

18 See e.g. , DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014);Conde-Vidal v. Garcia-Padilla

, No. 14-1253, 2014 WL 5361987(D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell , 2 F. Supp. 3d910 (E.D. La. 2014)

19 Respondent judges seek to lower their own legal burdens,even while they seek to increase the legal burdens of thecitizens of Alabama by adding to the requirements of (orabolishing) the rule of public standing. See supra § II.A.


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lawsuits, and often win them. That Judge Grenade reached one

opinion on Alabama’s marriage laws has no bearing on whether

a different judge in a different district (or even her own

district) will reach the same opinion in a hypothetical new

suit, or would side with those courts who have upheld man-

woman marriage.

In sum, Respondents ’ dire predictions are both

speculative and legally insufficient to excuse their

voluntary departure from Alabama law.

Fallacy #2: That this Court is required torule on the constitutionality of the

Marriage Amendment and the Marriage Act.

Respondents King, Ragland, and Martin assert that

granting the Petition will require this Court to rule on the

constitutionality of the Marriage Amendment and the Marriage

Act. (King-Ragland Ans. at 32; Martin Ans. at 27.) This

argument ignores what the Petition says. Relators are

entitled to relief because the probate judge duties they seek

to compel by mandamus are ministerial, and no court of

competent jurisdiction (over Respondents) has ruled the

Marriage Amendment or Marriage Act unconstitutional . (Pet. at

11-19.) Granting the Petition does not require this Court to


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review the merits of the Searcy or the Strawser Injunctions. 20

Thus, to grant the Petition, this Court need only determine

that Alabama’s marriage laws have not been ruled

unconstitutional by a court with jurisdiction over

Respondents. That determination is not a difficult one,

because Respondents concede it.

Fallacy #3: That writs of mandamuscommanding performance of Respondents’duties under the Marriage Amendment and

Marriage Act are speculative relief.Respondents King, Ragland, and Martin each claim the

Petition seeks speculative relief because none of them knows

whether a same-sex couple will request a marriage license

after this Court rules. (King-Ragland Ans. at 31-32; Martin

Ans. at 25-26.). This argument is disingenuous. No Respondent

disputes that he has begun issuing marriage licenses to same-

sex couples. Each Respondent’s commencing to issue marriage

licenses to same-sex couples on February 9, 2015, required an

20 This Court is nonetheless competent to disagree withJudge Granade in a case where the question is properly beforeit. See Lockhart v. Fretwell , 506 U.S. 364, 375-76 (1993)(Thomas, J., concurring) (“[N]either federal supremacy norany other principle of federal law requires that a statecourt’s interpretation of federal law give way to a (lower)federal court’s interpretation.”)


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issuing marriage licenses to same-sex couples in violation of

the Marriage Amendment and the Marriage Act. For from

promoting uniformity, denying the Petition will ensure

continuation of the current discord and disharmony. Granting

the Petition, on the other hand, will provide Respondents and

the citizens of Alabama with the uniformity Respondents seek.

CONCLUSION

In accordance with the foregoing, Relators request a writ

of mandamus directed to each Respondent, commanding each of

them not to issue marriage licenses to same-sex couples and

not to recognize any marriage licenses issued to same-sex

couples.

Respectfully Submitted,

s/ Mathew D. Staver Mathew D. Staver †

Fla. Bar No. [email protected]@LC.orgHoratio G. Mihet † Fla. Bar No. [email protected] K. Gannam † Fla. Bar No. [email protected] IBERTY C OUNSEL P.O. BOX 540774Orlando, FL 32854-0774(800) 671-1776(407) 875-0770 FAX† Admitted pro hac vice

A. Eric Johnston (ASB-2574-H38A) [email protected] 1071200 Corporate DriveBirmingham, AL 35242(205)408-8893(205)408-8894 FAX

Samuel J. McLure (MCL-056)[email protected] Adoption Law FirmPO Box 2396Montgomery, AL 36102(334)612-3406

Attorneys for Petitioner


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Attorneys for Hon. Don DavisLee L. [email protected] Church StreetMobile, AL 36602

J. Michael Druhan, [email protected]

Harry V. [email protected]

Luther StrangeAttorney General,

State of Alabama501 Washington AvenueMontgomery, AL [email protected]

s/ Roger K. GannamRoger K. GannamAttorney for Petitioner


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Documents

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