1140460 davis's corrected brief

8/9/2019 1140460 Davis's Corrected Brief

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E-Filed03/05/2015 @ 07:53:16 PM

Honorable Julia Jordan WellerClerk Of The Court

IN THE S U P R E M E C O U R T O F A L A B A M A

Ex parte S TAT E ex rel. A L A B A M AP O L I C Y INSTITUTE and A L A B A M A

CITIZENS A C T I O N P R O G R A M ,

Petitioner,

v.C A S E N O. 1140460

A L A N L . K I N G , in his official capacityas Judge of Probate for Jefferson County,Alabama, R O B E RT M . M A RT I N , in hisofficial capacity as Judge of Probate for

Madison County, Alabama, S T E V E N

L . R E E D , in his official capacity asJudge of Probate for MontgomeryCounty, Alabama, and J U D G E DOES##1-63, each in His or her official capacityas an Alabama Judge of Probate,

Respondents.

C O R R E C T E D BRIEF IN SUPPORT O F M O T I O NT O EX TEN D TI M E F O R RESPONSE

Judge Davis needs additional time to respond. Judge Davis has asked the Alaba maJudicial Inquiry Commission for guidance. Further, Judge Davis i s asking Judge Granade for astay, which i f granted, means no more plaintiffs w i l l be added to the federal litigation. Perhapsthe Alabama Judicial Inquiry Commission or Judge Granade w i l l act on Judge Davis' requestswithin the requested ten (10) day extens ion.

This Honorable Court issued the Mand amus Order late in the evening of March 3, 2015.The Mand amus Order, including the dissenting opinion, is 148 pages long. Judge Davis is theonly probate judge in the State o f Alabama ordered by a federal distric t court judge to issuesame-sex marriage licenses to specific plaintiffs. Further, in this same case, the federal judge has

permit ted amendment of the pleadings to add additional same-sex couples seeking a marriagelicense from the Mobi le County Probate Court. The federal distri ct court ordered that JudgeDavis issue to these add itional same-sex couples marriage licenses two days after they had

become parties to the federal court action.

If Judge Davis' denies a same-sex couple a marriage license, then that couple can do as


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the three additional couples did in James N . Strawser v. Luther Strange, C i v i l Act ion No.: 14-0424-CG-C and seek an order from the federal court directi ng Judge Davis to issue the marriagelicense. On February 12, 2015, the federal court did just that. A l l four same-sex couples who

brought suit are no w married.

Judge Davis is caught between Judge Gran ade' s orders to issue same-sex marriagelicenses and this Cou rt's Wri t of Mandamus that Alabama probate judges shall not issue same-sex marriage licenses. These conflicting orders of the federal district court and this HonorableCourt impose an impossible task upon Judge Davis: fulfilling opposite orders which are issued toJudge Davis by the federal court and the Alabama Supreme Court.

Further, the lawyers who represent the same-sex couples before Judge Granade have alsofiled before Judge Granade a related case, in which they have sued Judge Davis both in hisofficial capacity and persona lly. In this same-sex couple adoption case, the comp lain t allegesclaims based on Section 1983. The compla int alleges a federal c iv i l rights violation due to JudgeDavis having entered an Interlocutory Order stating "the Court w i l l not issue a final adoptionorder until a final ruling is issued in the United States Supreme Cou rt on the Marria ge Ac t cases

before it. " The federal judge indicated in her February 10, 2015 Orde r in Strawser that herorders in Cari D. Searcy v. Luther Strange, Civil Action No.: 14-0208, CG -N , ("Searcy I")must be read in conjunction with the Order in Strawser to be fully understood. In Cari D .Searcy v. Mobi le County Probate Judge Don Davis. C i v i l Act ion No. : 15-0010 4-C ("Searcy 11"),other plaintiffs gave notice of their intent to seek money damages for Section 1983 claimsagainst Judge Davis in his official capacity and person ally for violating the rights Judge Granadesaid each possessed.

Judge Davis has made clear that he w i l l follow the rule of law when directed by thecourts which have authority over this issue. Judge Davis has not sought out this dispute. JudgeDavis has taken extraordinary steps to seek guidance from this Honorable Court. Specifically,Judge Davis filed the action which was in the nature of an in rem action and the amended in remaction filed directly with this Honorable Court regarding the continuing effectiveness, validity,and authority of the Administrative Order of the Chief Justice of the Supreme Court of Alaba madated the 8th of February 2015, Case N o. 1140456. This Court ruled that this action was in thenature of a Request for Advisory Opinion which this Court did not have jurisdiction to grant.

Future cases could result in money damage awards arisi ng out of Judge Gran ade' sorders. Judge Davis could face personal liability. Fo r clai ms against Judge Davis in his officialcapacity. Mobi le County's taxpayers are at risk. This Court should consider this risk in thecontext of an active federal case against Judge Davis only, among all other probate judges, whichhas already, and probably w i l l further, result in any same-sex couple who seeks a marriagelicense from Probate Court in Mobi le County obtaining it as quickly as two days after JudgeDavis refuses to grant the license.

Whether Judge Davis is bound by a federal court order regarding issuing marriagelicenses to others than the plaintiffs in Strawser can be answered in two different ways. First, itsnarrowest sense. Judge Davis is bound presently by only one existing federal court case whichinvolves multiple orders which are very broad, ap ply ing to all same-sex couples as long as the

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Strawser case is before Judge Granade . Thus, Strawser could require Judge Davis not only toissue the four marriage licenses to the Plaintiffs in that case but also to all similarly situatedsame-sex couples wh o also apply for a marr iage lic ense in the future.

Second, this Co urt should also consider this issue in a broader context. A s the above facts

make clear, if Judge Davis refuses to issue a marr iage lic ense to a same-sex couple, the federalcourt can order issuance of the license after the cases are filed in federal court. Thus , JudgeDavis must at that time issue the marriage license to the same-sex couple . Further, due to the

breadth of Judge Granade's orders in Strawser and Searcy I, a plaintiff could argue that JudgeGranade's orders protect not merely the plaintiffs in Strawser but all other similarly situatedsame-sex couples who come before Judge Granade later in Strawser so long as Judge Granadehas jurisdiction over the case. Further, i f Judge Davis refuses to issue a marriage license to asimilarly situated same-sex couple, Judge Granade could find that Judge Davis has willfullyviolated the federal court's orders and hold him in contempt, order a monetary penalty, and/oraward monetary damages or attorneys' fees to the new coup le.

This Court has perhaps recognized that Judge Davis is in such a unique position that he isnot now under this Mandamu s Order of this Honora ble Court:

The named respondents are ordered to discontinue the issuance o f marriagelicenses to same-sex couples. Further, and pursuant to relator Judge Enslen'srequest that this Court, "by any and all lawful means av ailabl e to it," ensurecompliance with Alabama la w with respect to the issuance of marriage licenses,each of the probate judges in this State other than the named respondents andJudge Davis are joined as respondents in the place of the "Judge Does"identified in the petition.

Alternatively, perhaps Judge Davis is subject to the Manda mus Orde r presently and i f the broadinterpretation of Judge Granade's Strawser Order is correct, then Judge Davis presently has twoconflicting orders against him, one to issue only opposite sex marriage licenses and the other toissue both opposite sex and same-sex marriage licenses. Obviously, Judge Davis cannot abide

by both orders due to this conflict. Thus, Judge Davis has ordered that his office wi l l not issueany more marriage licenses to anyone until this conflict is resolved.

In conclusion, the complicated and serious consequences to Judge Davis, the citizens ofMobile County and families throughout the state are too great to respond adequately in less than48 hours. Judge Davis needs guidance from the Alabama Judicial Inquiry Commission and/or astay from Judge Granade to be able to properly answer this Honorable Court's question.


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R E S P E C T F U L LY S U B M I T T E D ,

/S /LEE L. HALEL E E L . [email protected] C H U R C H STREETM O B I L E , A L 36602(251)433-3671

/ S / M A R K S. B O A R D M A Nmboardman@boardm ancarr.com TER ES A B . P ETELO S

[email protected] L A Y R. C A R Rccarr@boardmancarr. com B O A R D M A N , C A R R , B E N N E T T, WAT K I N SH I L L & G A M B L E , P C400 B O A R D M A N D R I V EC H E L S E A , A L 35043(205)678-8000

/ S / J . M IC HAEL DR UHAN, JR.

[email protected] R R Y V. S [email protected] S AT T E RW H I T E , D R U H A N , G A I L L A R D &T Y L E R , L L C

1325 D A U P H I N STREETM O B I L E , A L 36604(251)432-8120

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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C E RT I F I C AT E O F SERVICE

I hereby certify that on this the 5th day of March 2015, I electronically filed the foregoingwith the Clerk of the Court using the A CIS system which wil l send notification to the following:

Luther StrangeAttorney General, State of Alabama501 Washington AvenueMontgomery, A L 36130-0152Phone: (334) [email protected]

Matthew D. StaverHoratio G. MihetRoger K . GrahamL I B E RT Y C O U N S E L

Post Office Box 540774Orlando, F L 32854Phone: (800) [email protected]@LC.org [email protected] [email protected]

Eric JohnstonSuite 1071200 Corporate DriveBirmingham, A L 35242Phone: (205) [email protected]

Samuel J. McLureThe Adoption La w FirmPost Office Box 2396Montgomery, A L 36102Phone: (334) [email protected]

Jeffrey M . SewellFrench A. McMil lan , L L C

1841 Second Avenue N . , Suite 214Jasper, A L 35501Phone: (205) 544-2350

je ff @sewel lmcmil la n. [email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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G. Douglas JonesGreg Hawle yChris NicholsonJones & Haw ley, PC2001 Park PI Ste. 830

Birmingham, A L 35203Phone: (205)490-2290ghawley(a!j oneshawley.com cni chol son(a) i oneshawl ey. comdj ones(a),\ oneshawley. com

Kendrick E. WebbJamie Helen KiddFred L. ClementsWebb & Eley, P.C .Post Office Box 240909Montgomery, A L 36124Phone: (334)262-1850kwebb (g), webb eley. com

j ki dd(a! webb el ey. [email protected]

Robert D . SegallCopeland, Franco, Screws & G i l l , P. A .P.O. Box 347Montgo mery, A L 36101Phone: (334)[email protected]

Thomas T. GallionConstance C. WalkerHaskell Slaughter & Gall ion, L L C8 Commerce Street, Suite 1200Montgomery, A L 36104Phone: (334)[email protected] [email protected]

Tyrone C. MeansH . Lewis GillisKristen J. GillisM E A N S GI L L I S L AW , L L CPost Office Box 505860 Commerce Street, Suite 200Montgomery, A L 36103Phone: (334)270-1033

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http://oneshawley.com/mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://oneshawley.com/


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[email protected]@meansgillislaw.com kj gilli s@meansgilli slaw, com

Mark Engl chart

Englehart Law Offices9457 Alsbury PlaceMontgomery, A L 36117Phone: (334)782-5258

j menglehart @gmail. com

George W. Royer, Jr.Brad A. ChynowethLanier, Ford Chaver & Payne, P.C.P.O. Box 20872101 West Chnt on Ave ., Suite 102

Huntsville, A L 35804Phone: (256) [email protected]

b ac@Lani erford. com

J. Richard CohenDavid DinielliSouthern Poverty Law Center400 Washington AvenueMontgomery, A L 36104Phone: (334)[email protected]@splcenter.org

Randall MarshallA C L U of Alabama FoundationP.O. Box 6179Montgomery, A L [email protected]

L. Dean JohnsonL. Dean Johnson, PC4030 Balmoral Dr. SWHuntsville, A L 35801Phone: (256) [email protected]

J. Stanton GlasscoxGlasscox Law firm, L L CPost Office Box 2646

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Birmingham, Alabama [email protected]

Samuel H . HeldmanThe Gardner Firm, P C

2805 31s t

N WWashing ton, D C [email protected]

/s/ Lee L. HaleOF C O U N S E L

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mailto:[email protected]:[email protected]:[email protected]:[email protected]

1140460 davis's corrected brief

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