1140460 Petitioners' Response to Davis Motion

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


Chilton County, Alabama,

TOMMY RAGLAND, in his official


Madison County, Alabama,

STEVEN L. REED, in his official


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

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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

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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

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step into the instant case and dismiss it, Judge Granade

again acknowledged, “Plaintiffs have secured the injunctive

relief they seek . . . .” (Order, Feb. 20, 2015, copy

attached hereto as Exhibit B.)

11. Judge Davis’s pending Stay Motion in Strawser

unnecessarily and unfortunately presupposes that he has

some ongoing duty from which he can be relieved by a stay.

As shown above, this presupposition is erroneous.

12. Moreover, no injunction entered by Judge Granade

could create a duty owed by Judge Davis to any marriage

license applicant who was not a party to the case, even if

Judge Granade were to suddenly change course and say that

it does. See Martin v. Wilks, 490 U.S. 755, 762 (1989) (“A

judgment or decree among parties to a lawsuit resolves

issues as among them, but it does not conclude the rights

of strangers to those proceedings.”). This is a well-

settled principle of jurisdiction recognized in the

Eleventh and other federal circuits. See, e.g., Hollon v.

Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir. 1974)1

(“In this case, which is not a class action, the injunction

1 Fifth Circuit cases decided before October 1, 1981, are

binding precedent in the Eleventh Circuit. See Bonner v.

City of Pritchard, 661 F.2d 1206 (11th Cir. 1981).

7

against the School District from enforcing its regulation

against anyone other than [the plaintiff] reaches further

than is necessary to serve such purpose. We would set aside

this portion of the preliminary injunction, therefore, as

an abuse of discretion . . . .”); Bethell v. Peace, 441

F.2d 495, 498 (5th Cir. 1971)2 (“We find, however, that the

scope of the injunction is overbroad in that it attempts to

affect rights between [persons] who were not parties to the

action.”); Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th

Cir. 1983) (“On remand, the injunction must be limited to

apply only to the individual plaintiffs unless the district

judge certifies a class of plaintiffs. A federal court may

issue an injunction if it has personal jurisdiction over

the parties and subject matter jurisdiction over the claim;

it may not attempt to determine the rights of persons not

before the court.” (citation omitted)).

13. Judge Davis has already issued marriage licenses

to the Strawser Plaintiffs as ordered by Judge Granade.

(Extension Br. at 2; Stay Mot. ¶ 19.) Judge Davis currently

is under no order to issue a marriage license to any other

person, and Judge Granade is plainly without jurisdiction

2 See supra n.1.

8

to expand her injunctions to provide relief to parties who

are not before her. Thus, subjecting Judge Davis to this

Court’s Mandamus Order (on the same terms as every other

probate judge in the state) will not create a conflict with

any order of Judge Granade or any other court.

14. Ultimately, Judge Davis’s primary purpose for

seeking a stay in Strawser, and an extension of time from

this Court, is avoiding “potentially contradictory” orders

from Judge Granade and this Court. (Stay Mot. ¶¶ 23, 24.)

Citing this potential conflict, Judge Davis has ceased

issuing all marriage licenses. But Judge Granade’s orders

are not currently contradictory with this Court’s Mandamus

Order, and it is merely speculative that new plaintiffs may

seek to join the Strawser case to obtain new orders to

issue marriage licenses. (Extension Br. at 2.) This Court

should not relieve Judge Davis from its Mandamus Order

based on such speculation.

15. Nor should this Court allow Judge Davis to

continue to deny marriage licenses to those who seek

natural, man-woman marriages in conformity with the Alabama

Constitution and law. There is no basis for excusing Judge

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Davis from complying with Alabama law in the same manner as

every other probate judge.

Respectfully Submitted,

Samuel J. McLure (MCL-056)

[email protected]

The Adoption Law Firm

PO Box 2396

Montgomery, AL 36102

334-612-3406

A. Eric Johnston (ASB-2574-H38A)

[email protected]

Suite 107

1200 Corporate Drive

Birmingham, AL 35242

(205)408-8893

(205)408-8894 FAX

s/ Mathew D. Staver

Mathew D. Staver†

Fla. Bar No. 0701092

[email protected]

[email protected]

Horatio G. Mihet†

Fla. Bar No. 0026581

[email protected]

Roger K. Gannam†

Fla. Bar No. 240450

[email protected]

LIBERTY COUNSEL

P.O. BOX 540774

Orlando, FL 32854-0774

(800) 671-1776

(407) 875-0770 FAX

†Admitted Pro Hac Vice

Attorneys for Relators

CERTIFICATE OF SERVICE

I certify that I have this 6th day of March, 2015,

served copies of this motion, by e-mail transmission, as

follows:

Attorneys for Resp. Reed

Robert D. Segall

[email protected]

Copeland, Franco, Screws &

Gill, P.A.

P.O. Box 347

Montgomery, AL 36101-0347

Thomas T. Gallion, III

[email protected]

Constance C. Walker

[email protected]

HASKELL SLAUGHTER &

GALLION, LLC

8 Commerce Street, Suite 1200


Samuel H. Heldman

[email protected]

The Gardner Firm, P.C.

2805 31st St. NW

Washington, DC 20008

Tyrone C. Means

[email protected]

H. Lewis Gillis

[email protected]

Kristen Gillis

[email protected]

Means Gillis Law, LLC

P.O. Box 5058


John Mark Englehart

[email protected]

Englehart Law Offices

9457 Alysbury Place


Attorneys for Resp. King

Jeffrey M. Sewell

[email protected]

French A. McMillan

[email protected]

Sewell Sewell McMillan, LLC

1841 Second Avenue N.

Suite 214

Jasper, AL 35501

Attorneys for Resp. Martin

Kendrick E. Webb

[email protected]

Jamie Helen Kidd

[email protected]

Fred L. Clements

[email protected]

WEBB & ELEY, P.C.

P. O. Box 240909


Attorneys for Resp. Ragland

George W. Royer, Jr.

[email protected]

Brad A. Chynoweth

[email protected]

Lanier Ford Shaver &

Payne, P.C.

P.O. Box 2087

2101 West Clinton Avenue,

Suite 102 (35805)

Huntsville, AL 35804

Hon. John E. Enslen, Pro Se

[email protected]

Probate Judge of Elmore

County, Alabama

Post Office Box 10

Wetumpka, Alabama 36092

11

Attorneys for Hon. Don Davis

Lee L. Hale

[email protected]

501 Church Street

Mobile, AL 36602

J. Michael Druhan, Jr.

[email protected]

Harry V. Satterwhite

[email protected]

Attorneys for Amicus Curiae

Eagle Forum of Alabama

Education Foundation and

Eagle Forum Education and

Legal Defense Fund

L. Dean Johnson

[email protected]

L. Dean Johnson, PC

4030 Balmoral Drive, SW

Huntsville, AL 35801

Amicus Curiae

J. Stanton Glasscox, Pro Se

[email protected]

GLASSCOX LAW FIRM, LLC

P.O. Box 2646

Birmingham, AL 35201

Luther Strange

Attorney General,

State of Alabama

501 Washington Avenue


[email protected]

Attorneys for Amicus Curiae

Equality of Alabama

Ayesha Khan

[email protected]

Am. United for Separation of

Church and State

1301 K. Street, N.W.


J. Richard Cohen

[email protected]

David Dinielli

[email protected]

Southern Poverty Law Center



Shannon P. Minter

[email protected]

[email protected]

Nat’l Ctr. for Lesbian Rights

870 Market St., Suite 370

San Francisco, CA 94102

Randall C. Marshall

[email protected]

ACLU of Alabama Foundation

P.O. Box 6179


s/ Roger K. Gannam

Roger K. Gannam

Attorney for Relators

IN THE UNITED STATES DISTRICT COURT FOR THE

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER, et al., )

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for the )

the State of Alabama and DON )

DAVIS in his official capacity as )

Probate Judge of Mobile County, )

Alabama, )

)

Defendants. )

________________________________________________________________________

EMERGENCY MOTION FOR STAY

________________________________________________________________________

Defendant, Don Davis, Judge of Probate Court of Mobile County, pursuant to

Rules 62(b) and 60(b) of the Federal Rules of Civil Procedure, and other applicable law,

respectfully moves for a stay of this Court’s Order on Plaintiffs’ Emergency Motion for

Preliminary Injunction and/or Temporary Restraining Order (Doc. 55), on grounds that

Judge Davis is currently facing potentially conflicting orders from this Court and the

Alabama Supreme Court, and would further show:

INTRODUCTION

1. The purpose of this Emergency Motion is to bring to the attention of this

Court the unprecedented, historic and yet difficult position that Mobile County’s Judge of

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 1 of 14

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Typewritten Text

EXHIBIT A

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Probate, Don Davis, is faced with. This Court has issued certain specific Orders regarding

same-sex marriages in Alabama. At the same time, the Alabama Supreme Court has

issued what appears to be a conflicting Order, placing Judge Davis in the unenviable

position of trying to comply with two conflicting Orders at the same time. Judge Davis

has never publically stated his personal opinion on the important issues before both this

Court and the Alabama Supreme Court, and has remained neutral and fair to all parties.

However, the recent opinion and Order from the Alabama Supreme Court has placed

Judge Davis in the position of having to ask this Court to stay its Strawser Order of

February 12, 2015 (Doc. 55), and to move the Alabama Supreme Court for an extension

of time to respond to that Court. Therefore, Judge Davis’ difficult position is detailed

further below in support of his Emergency Motion for a Stay in this Court.

ARGUMENT

2. Federal Rule of Procedure 62(b) provides for issuance of a stay pending the

disposition of a motion, and states that “the court may stay the execution of a judgment--

or any proceedings to enforce it--pending disposition of any of the following motions: . . .

(4) under Rule 60, for relief from a judgment or order.” Fed. R. Civ. P. 62(b)(4).

3. In addition to seeking an emergency stay under Rule 62, Judge Davis

requests that this Court modify the Order (Doc. 55) as allowed under Federal Rule of

Procedure 60(b). “Although Rule 65 does not speak of modification or vacation of

injunctions, Rule 60(b) provides that: On motion and just terms, the court may relieve a

party or its legal representative from a final judgment, order, or proceeding for the

following reasons: . . . (5) … applying it prospectively is no longer equitable.” § 2961


3

Modification of Injunctions, 11A Fed. Prac. & Proc. Civ. § 2961 (3d ed.), Fed. R. Civ. P.

65, Fed. R. Civ. P. 60(b).

4. It is a universally recognized principle that this Court has continuing power

to modify or vacate a final decree, and this includes injunctive relief. “The three

traditional reasons for ordering the modification or vacation of an injunction are (1)

changes in operative facts, (2) changes in the relevant decisional law, and (3) changes in

any applicable statutory law.” § 2961 Modification of Injunctions, 11A Fed. Prac. &

Proc. Civ. § 2961 (3d ed.). In addition, although changes in fact or law afford the clearest

bases for altering an injunction, “the power of equity has repeatedly been recognized as

extending also to cases where a better appreciation of the facts in light of experience

indicates that the decree is not properly adapted to accomplishing its purposes.” Id.

5. On January 23, 2015, this Court granted summary judgment in the case of

Searcy v. Strange, (Civil Action No. 14-0208-CG-N, Jan. 23, 2015) __ F. Supp. 3d __

(S.D. Ala. 2015) (hereinafter “Searcy I”) in favor of the Plaintiffs, declaring that

Alabama laws prohibiting same-sex marriage and prohibiting recognition of same-sex

marriages performed legally in other states are unconstitutional (Searcy I, Docs. 53-54).

As part of the judgment entered in Searcy I, this Court enjoined the sole remaining

Defendant, Alabama Attorney General Luther Strange, “from enforcing those laws.”

(Searcy I, Doc. 54). Judge Davis had previously been dismissed with prejudice from

Searcy I, and the only remaining Defendant at the time of this Court’s Order in Searcy I

was the Attorney General.


4

6. The Attorney General moved for a stay of the Court’s order pending a

ruling by the United States Supreme Court. (Doc. 56). This Court then stayed the Searcy I

order of injunction and judgment for 14 days, until February 9, 2015. (Doc. 59). In

support of its decision, and despite the fact that the Attorney General had not yet filed an

appeal in Searcy I, this Court stated:

In its discretion, however, the court recognizes the value of allowing the

Eleventh Circuit an opportunity to determine whether a stay is appropriate.

Accordingly, although no indefinite stay issues today, the court will allow

the Attorney General time to present his arguments to the Eleventh Circuit

so that the appeals court can decide whether to dissolve or continue the stay

pending appeal (assuming there will be an appeal.)

7. The Attorney General then filed a motion for stay of the Searcy I order with

the United States Court of Appeals for the 11th Circuit, which was denied. Attorney

General Luther Strange then filed an Application for Stay with the United States Supreme

Court.

8. Subsequently, the day before the Searcy I stay was set to expire, on

February 8, 2015, the Chief Justice of the Supreme Court of Alabama issued an

Administrative Order that ordered:

Effective immediately, no Probate Judge of the State of Alabama nor any

agent or employee of any Alabama Probate Judge shall issue or recognize a

marriage license that is inconsistent with Article 1, Section 36.03, of the

Alabama Constitution or § 30 1 19, Ala. Code 1975.

9. In addition, on the morning of February 9, 2015, the United States Supreme

Court refused to stay the order of this Court in Searcy I. However, the facts have changed

since the above requests for stay described above were denied in Searcy I. In fact, the

confusion has continued to increase from the time of the issuance of the first Searcy I


5

order to this point in time.

10. After the issuance of the Administrative Order by Judge Moore, Judge

Davis was placed in a potential conflict between the Order of this Court and the Order of

the Chief Justice of the Alabama Supreme Court, who, by authority of his office, is also

the chief administrative officer of the State of Alabama Judicial System. As stated above,

Judge Davis had previously been dismissed with prejudice from Searcy I, and the only

remaining Defendant at the time of this Court’s Order in Searcy I was the Attorney

General.

11. Although Judge Davis was not a party to this Court's Order in Searcy I,

Judge Davis recognized the potential conflicting authority which confronted his office.

Thus, on February 9, 2015, due to the potentially conflicting orders of this Court and the

Chief Justice of the Alabama Supreme Court, Judge Davis closed the office which issues

marriage licenses in Mobile County until this conflict was resolved.

12. Upon realizing that Judge Davis had closed the marriage license office, the

Plaintiffs in Searcy I filed a Motion for Contempt on the afternoon of February 9, 2015.

On the same day, this Court denied Plaintiffs’ Motion for Contempt against Judge Davis

(Searcy I, Doc. 72), stating in part:

After reviewing the Plaintiffs’ motion, the court finds that Plaintiffs have

not shown that Davis has failed to comply with this court’s order. On

January 23, 2015, this court declared that ALA. CONST. ART. I, § 36.03

(2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional and enjoined

defendant Luther Strange, in his capacity as Attorney General for the State

of Alabama, from enforcing those laws. (Doc. 54). Upon motion by the

Plaintiffs, this court further clarified the January 23, 2015 order stating that:

… [A] clerk who chooses not to follow the ruling should take


6

note: the governing statutes and rules of procedure allow

individuals to intervene as plaintiffs in pending actions, allow

certification of plaintiff and defendant classes, allow issuance

of successive preliminary injunctions, and allow successful

plaintiffs to recover costs and attorney’s fees. … The

preliminary injunction now in effect thus does not require the

Clerk to issue licenses to other applicants. But as set out in

the order that announced issuance of the preliminary

injunction, the Constitution requires the Clerk to issue such

licenses. As in any other instance involving parties not now

before the court, the Clerk’s obligation to follow the law

arises from sources other than the preliminary injunction.

(Doc. 65, p. 3 quoting Brenner v. Scott, 2015 WL 44260 at *1 (N.D. Fla.

Jan 1, 2015)). 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.

Judge Davis’s obligation to follow the Constitution does not arise from this

court’s Order. The Clarification Order noted that actions against Judge

Davis or others who fail to follow the Constitution could be initiated by

persons who are harmed by their failure to follow the law. However, no

such action is before the Court at this time.

13. Judge Davis then filed an In Rem action in the Alabama Supreme Court to

address the potential conflict between the Administrative Order entered by Chief Justice

Moore and this Court’s Orders. This In Rem action focused on whether Chief Justice

Moore’s Administrative Order was still valid after the U.S. Supreme Court ruling

denying the Attorney General’s request for a stay of Searcy I’s Order. Judge Davis set out

in the In Rem action that if the Alabama Supreme Court failed to address the

Administrative Order that he would abide by the ruling of the U.S. District Court for the

Southern District of Alabama.

14. On February 11, 2015, the Alabama Supreme Court issued an Order

dismissing the In Rem action regarding the Administrative Order on the basis that the

petition filed by Judge Davis was an impermissible request for an advisory opinion.


7

15. As a result, Judge Davis’ request to the Alabama Supreme Court attempting

to resolve the potential conflict between the Administrative Order and the Order of this

Court in Searcy I did not resolve the issue.

16. The confusion caused by the conflicting authorities, which had resulted in

Judge Davis closing the Mobile County Probate Court’s marriage license office, was

further intensified when a Mandamus Petition was filed by the Alabama Policy Institute

and Alabama Citizens Action Program against all Alabama Probate Judges, some of

which had issued marriage licenses to same sex couples after this Court’s Order (Doc.

55) in this case. Judge Davis previously submitted this material for the consideration of

this Court, as the documents showed the unique issues faced by Judge Davis at that point

in time and related to the conflicts of authority which he and the other probate judges in

this state potentially faced.

17. Also on February 9, 2015, as a result of the marriage license office being

closed, the Plaintiffs in this case (“Strawser” or “Strawser Plaintiffs”) filed an

Emergency Motion for Leave to File an Amended Complaint and for Preliminary

Injunction and/or Temporary Restraining Order. (Doc. 43). This Court granted the

Plaintiffs’ request to amend their Complaint and add Judge Davis as a defendant. (Doc.

46). On February 10, 2015, the Plaintiffs filed their First Amended Complaint for

Declaratory and Injunctive Relief, adding Judge Davis as a defendant in his official

capacity and seeking declaratory and injunctive relief against Judge Davis. (Doc. 47).

18. Two days later, a hearing was then held on February 12, 2015, on the

Strawser Plaintiffs’ Motion for Preliminary Injunction. This Court granted Plaintiffs’


8

request for relief.

19. Judge Davis then complied with this Court’s order in Strawser, and all of

the Strawser Plaintiffs have since received marriage licenses pursuant to this Court’s

injunction.

20. Since the time of this Court’s first order with respect to same-sex marriage

in Searcy I, and this Court’s Order granting the Plaintiffs’ Motion for a Preliminary

Injunction against Judge Davis in Strawser (Doc. 55), Judge Davis has been at the center

of statewide confusion. Judge Davis continues to be subject to conflicting authority. The

issue continues to be litigated and new lawsuits are brought in this Court and the

Alabama Supreme Court. Moreover, the facts and circumstances surrounding the issues

have changed greatly with the addition of other orders, in front of this Court, and other

federal and state courts, from the time of this Court’s first order in Searcy I and the more

recent Order (Doc. 55) involving Judge Davis in this case.

21. For example, on February 24, 2015, Plaintiff Searcy filed another lawsuit

against Judge Davis with respect to her pending adoption petition, claiming violation of

constitutional rights and seeking money damages, against the judge in his official and

individual capacity under 42 U.S.C. § 1983 and § 1988. See Searcy v. Davis (Civil Action

No. 15-0104-CG-N, Jan. 23, 2015) __ F. Supp. 3d __ (S.D. Ala. 2015) (“Searcy II”).

Judge Davis has filed a Motion to Dismiss all claims in Searcy II, and this Court stayed

the hearing on the preliminary injunctive relief requested in Searcy II until after the Court

hears Judge Davis’ Motion to Dismiss.


9

22. Moreover, on March 3, 2015, the Alabama Supreme Court granted the

aforementioned Mandamus Petition and issued an order upholding the constitutionality of

the Alabama marriage laws previously held unconstitutional by this Court’s orders in

Searcy I and Strawser, and ordering almost all Alabama Probate Court Judges not to

issue same-sex marriage licenses. A copy of the entire text of the Alabama Supreme

Court Opinion is attached for reference. The Alabama Supreme Court ordered, in

pertinent part, that:

The named respondents are ordered to discontinue the issuance of marriage

licenses to same-sex couples. Further, and pursuant to relator Judge

Enslen's request that this Court, "by any and all lawful means available to

it," ensure compliance with Alabama law with respect to the issuance of

marriage licenses, each of the probate judges in this State other than the

named respondents and Judge Davis are joined as respondents in the place

of the "Judge Does" identified in the petition. Within five business days

following the issuance of this order, each such probate judge may file an

answer responding to the relator's petition for the writ of mandamus and

showing cause, if any, why said probate judge should not be bound hereby.

Subject to further order of this Court upon receipt and consideration of any

such answer, each such probate judge is temporarily enjoined from issuing

any marriage license contrary to Alabama law as explained in this opinion.

As to Judge Davis’s request to be dismissed on the ground that he is subject

to a potentially conflicting federal court order, he is directed to advise this

Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015,

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.

23. Upon review of the extensive and complicated history of the same sex

marriage issues that are, even now, still pending in front of this Court, it is clear that

Judge Davis has been put in an extremely difficult position that is now forcing him to

choose between potentially contradictory orders issued by this Court and the Alabama

Supreme Court. The Alabama Supreme Court highlighted the dilemma facing Judge


10

Davis when, despite the fact he is directly subject to this Court’s order in Strawser, the

Alabama Supreme Court stated the Judge Davis “is directed to advise this Court, by letter

brief, no later than 5:00 p.m. on Thursday, March 5, 2015, 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.1”

24. Therefore, Judge Davis is now subject to an unprecedented and historic

Order from the Alabama Supreme Court, and potentially subject to conflicting

unprecedented and historic Orders from this Court.

25. Simultaneously with the filing of this Motion, in his continuing effort to

follow the law, Judge Davis is sending an emergency request for an Advisory Opinion to

the Alabama Judicial Inquiry Commission. Judge Davis asserts that this Court’s Orders,

when read in conjunction with the Alabama Supreme Court’s Order, as well as

anticipated future Orders of both Courts, have raised issues concerning the proper ethical

and legal course of action for a judge faced with Judge Davis’ current unprecedented

dilemma. Therefore, Judge Davis requests that this Court stay its Strawser Order (Doc.

55) until such time as the Judicial Inquiry Commission has either stated an opinion, or

refused to so state its opinion.

26. In addition to the confusion in Alabama, the law across the United States on

the issue of same-sex marriage remains unestablished and continues to change rapidly.

The approach of our judicial systems across the United States has been inconsistent when

1 Judge Davis is filing simultaneously with this Motion, through undersigned counsel, a separate Motion with the

Alabama Supreme Court, asking for an extension of time to respond to that Court’s Order of March 3, 2015, to file a

letter brief with that Court explaining whether Judge Davis is currently subject to a federal order from this Court. A

copy of the Motion is attached.


11

it comes to same-sex marriage, and many of the various courts that have ruled on the

validity of same-sex marriages have taken polar opposite views. There are cases

involving the validity of same-sex marriages currently pending in most state and federal

appellate courts serving the State of Alabama, i.e., the United States Court of Appeals for

the 11th Circuit, the United States Supreme Court and the Alabama Supreme Court, as

well as in this Honorable Court.

27. However, the above-described confusion and potential conflicting

authorities that Judge Davis currently faces could be avoided if this Court chooses to stay

its previous order in Strawser until after a ruling by the United States Supreme Court.

The issue of same-sex marriage will be heard this term by the United States Supreme

Court, which will resolve the issues on a nation-wide basis. See James v. Hodges,

Supreme Court No. 14-556, Order dated January 16, 2015; see also cases 14-562, 14-571,

and 14-574. This Court noted, in footnote one of its order in Searcy I, that “[t]he

questions raised in this lawsuit will thus be definitively decided by the end of the current

Supreme Court term, regardless of today’s holding by this court.” (Searcy I, Doc. 53).

The Alabama Supreme Court Order stated that the United States Supreme Court is

expected to rule on this issue by June of this year – which is less than three months (3)

from the date of this filing - meaning a stay of this Court’s order in Strawser would only

be necessary for a short period of time.

28. Moreover, as noted by this Court in previous orders, Judge Davis has

complied with this Court’s injunction and relief sought by the Plaintiffs in Strawser. The

Plaintiffs in Strawser have all been provided marriage licenses. As the Plaintiffs have


12

already received the specific relief they requested against Judge Davis, they would not be

harmed by this Court’s decision to stay its order against Judge Davis until the United

States Supreme Court rules and finally clears up this issue. No other aggrieved parties are

currently before this Court.

29. For the foregoing reasons, and because of the continually changing nature

of the Orders issued to Judge Davis, Judge Davis respectfully requests that this

Honorable Court enter an order staying its previous order in Strawser (Doc. 55) on

Plaintiffs’ Motion for Preliminary Injunction. A stay will serve the public interest by

putting an end to the current confusion and inconsistency that has resulted in an on-again,

off-again enforcement of marriage laws. As they have received the requested relief, the

Strawser Plaintiffs would not be harmed by issuance of this stay.

WHEREFORE, the Defendant, Don Davis, Judge of Probate of Mobile County, by

and through undersigned counsel, respectfully moves this Honorable Court to issue an

Order staying its order on Plaintiffs’ Emergency Motion for Preliminary Injunction

and/or Temporary Restraining Order (Doc. 55) until after the U.S. Supreme Court issues

its ruling, and for such further and other relief this Court deems appropriate.

Respectfully submitted,

/s/ Harry V. Satterwhite

HARRY V. SATTERWHITE (Satth4909)

J. MICHAEL DRUHAN, JR. (Druh2816)

Attorneys for the Honorable Don Davis, Judge

of the Probate Court of Mobile County

[email protected]

[email protected]


mailto:[email protected]


13

OF COUNSEL:

SATTERWHITE, DRUHAN, GAILLARD & TYLER, LLC

1325 Dauphin Street

Mobile, Alabama 36604

(251) 432-8120 (phone)

(251) 405-0147 (fax)

[email protected]

/s/ Lee L. Hale__________________________

LEE L. HALE (HAL026)

Attorney for the Honorable Don Davis, Judge of

the Probate Court of Mobile County

501 Church Street

Mobile, Alabama 36602

(251) 433-3671 Ext. 2 (phone)

[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on this the 5th

day of March 2015, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to the following:

Attorney General Luther Strange

c/o James W. Davis

c/o Laura E. Howell

Office of the Attorney General

State of Alabama


Montgomery, Alabama 36130-0152

[email protected]

[email protected]






14

Shannon P. Minter

Christopher F. Stoll

National Center for Lesbian Rights

1100 H Street, NW Suite 540


[email protected]

[email protected]

Heather Fann

Boyd, Fernambucq, Dunn & Fann, P.C.

3500 Blue Lake Drive, Suite 220

Birmingham, Alabama 35243

[email protected]

Randall C. Marshall

ACLU Foundation of Alabama

P.O. Box 6179

Montgomery, Alabama 36106-0179

[email protected]

/s/ Harry V. Satterwhite

HARRY V. SATTERWHITE






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.


rkgannam

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EXHIBIT B

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2

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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3

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


4

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).


5

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


Documents

1140460 Petitioners' Response to Davis Motion