E-Filed

03/06/2015 @ 10:05:00 AM
Honorable Julia Jordan Weller
Clerk Of The Court

IN THE SUPREME COURT OF ALABAMA

Ex parte STATE ex rel. ALABAMA
POLICY INSTITUTE and ALABAMA
CITIZENS ACTION PROGRAM,
Petitioner,
CASE NO. 1140460

v.
ALAN L. KING, in his official
capacity as Judge of Probate for
Jefferson County, Alabama,
ROBERT M. MARTIN, in his official
capacity as Judge of Probate for
Chilton County, Alabama,
TOMMY RAGLAND, in his official
capacity as Judge of Probate for
Madison County, Alabama,
STEVEN L. REED, in his official
capacity as Judge of Probate for
Montgomery County, Alabama, and
JUDGE DOES ##1-63, each in his or
her official capacity as an
Alabama Judge of Probate,

RELATORS
MOTION OF
JUDGE DON
EXTENSION

RESPONSE TO
PROBATE
DAVIS FOR
OF TIME

Respondents.
_________________________________/
Relators, ALABAMA POLICY INSTITUTE and ALABAMA CITIZENS
ACTION PROGRAM, file this response to Probate Judge Don
Daviss Motion to Extend Time for Response. Relators show
the Court as follows:
1.

In

this

Courts

opinion

and

order

granting

Relators Petition, entered March 3, 2015 (the Mandamus

Order), the Court enjoined Alabama probate judges from

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 Courts 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),

copy

of

which

(without

exhibits) is attached hereto as Exhibit A.

4.

The

upshot

of

Judge

Daviss

Extension

Motion,

Extension Brief, and Stay Motion is that his answer to this

Courts

question,

whether

he

is

bound

by

any

existing

federal court order regarding the issuance of any marriage

license

other

ordered

to

than

issue

in

the

four

marriage

Strawser,

is

licenses
dont

he

know.

was
By

requesting a stay of the injunction from the Strawser

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 Daviss 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

obligations.
information

Court

However,
necessary

and

Judge

this
to

Granade

Court

determine

regarding

possesses
the

answer

all
to

his
the
its

question posed to Judge Davis, and should neither wait upon

nor defer to Judge Granade for the answer.
7.

First, in Judge Granades 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
Granade

entered
cited

in

and

Searcy

on

adoptedas

January

28,

clarification

2015,
of

her

Judge
own

injunctionthe decision of the federal district court in

3

Brenner v. Scott, No. 4:14cv107RH/CAS, 2015 WL 44260 at *1

(N.D. Fla. Jan. 1, 2015). (Jan. 28, 2015 Order at 3.) The
Brenner
issue

court

had

marriage

enjoined
license

to

Florida
a

clerk

same-sex

of

couple

court
who

to

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

applicants.

the

(emphasis

Clerk

to

added)).

issue
The

licenses

two

orders

to

other

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
4

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 samesex 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
relief

has

in

this

already

case),
been

Judge

granted

Granade
to

acknowledged,

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
5

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
unnecessarily

Daviss
and

pending

unfortunately

Stay

Motion

presupposes

in

Strawser

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

lawsuit

resolves

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

of

strangers

settled

to

principle

those
of

proceedings.).
jurisdiction

This

is

recognized

a
in

wellthe

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
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).
1

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.

7

to expand her injunctions to provide relief to parties who

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

Daviss

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 Granades orders

are not currently contradictory with this Courts 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
continue

to

should
deny

this

marriage

Court

allow

licenses

to

Judge
those

Davis
who

to
seek

natural, man-woman marriages in conformity with the Alabama

Constitution and law. There is no basis for excusing Judge

Davis from complying with Alabama law in the same manner as

every other probate judge.
Respectfully Submitted,
Samuel J. McLure (MCL-056)
sam@theadoptionfirm.com
The Adoption Law Firm
PO Box 2396
Montgomery, AL 36102
334-612-3406

s/ Mathew D. Staver
Mathew D. Staver
Fla. Bar No. 0701092
mstaver@LC.org
court@LC.org
Horatio G. Mihet
Fla. Bar No. 0026581
hmihet@LC.org
A. Eric Johnston (ASB-2574-H38A) Roger K. Gannam
eric@aericjohnston.com
Fla. Bar No. 240450
Suite 107
rgannam@LC.org
LIBERTY COUNSEL
1200 Corporate Drive
Birmingham, AL 35242
P.O. BOX 540774
(205)408-8893
Orlando, FL 32854-0774
(205)408-8894 FAX
(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
segall@copelandfranco.com
Copeland, Franco, Screws &
Gill, P.A.
P.O. Box 347
Montgomery, AL 36101-0347
Thomas T. Gallion, III
ttg@hsg-law.com
Constance C. Walker
ccw@hsg-law.com
HASKELL SLAUGHTER &
GALLION, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Samuel H. Heldman
sam@heldman.net
The Gardner Firm, P.C.
2805 31st St. NW
Washington, DC 20008
Tyrone C. Means
tcmeans@meansgillislaw.com
H. Lewis Gillis
hlgillis@meansgillislaw.com
Kristen Gillis
kjgillis@meansgillislaw.com
Means Gillis Law, LLC
P.O. Box 5058
Montgomery, AL 36103-5058
John Mark Englehart
jmenglehart@gmail.com
Englehart Law Offices
9457 Alysbury Place
Montgomery, AL 36117

Attorneys for Resp. King

Jeffrey M. Sewell
jeff@sewellmcmillan.com
French A. McMillan
french@sewellmcmillan.com
Sewell Sewell McMillan, LLC
1841 Second Avenue N.
Suite 214
Jasper, AL 35501
Attorneys for Resp. Martin
Kendrick E. Webb
kwebb@webbeley.com
Jamie Helen Kidd
jkidd@webbeley.com
Fred L. Clements
fclements@webbeley.com
WEBB & ELEY, P.C.
P. O. Box 240909
Montgomery, AL 36124
Attorneys for Resp. Ragland
George W. Royer, Jr.
gwr@lfsp.com
Brad A. Chynoweth
bac@Lanierford.com
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
jeenslen@gmail.com
Probate Judge of Elmore
County, Alabama
Post Office Box 10
Wetumpka, Alabama 36092

Attorneys for Hon. Don Davis

Lee L. Hale
Lee.hale@comcast.net
501 Church Street
Mobile, AL 36602

Luther Strange
Attorney General,
State of Alabama
501 Washington Avenue
Montgomery, AL 36130-0152
smclure@ago.state.al.us

J. Michael Druhan, Jr.

mike@satterwhitelaw.com

Attorneys for Amicus Curiae

Equality of Alabama
Ayesha Khan
khan@au.org
Am. United for Separation of
Church and State
1301 K. Street, N.W.
Washington, DC 20005

Harry V. Satterwhite
harry@satterwhitelaw.com
Attorneys for Amicus Curiae
Eagle Forum of Alabama
Education Foundation and
Eagle Forum Education and
Legal Defense Fund
L. Dean Johnson
dean@ldjpc.com
L. Dean Johnson, PC
4030 Balmoral Drive, SW
Huntsville, AL 35801

J. Richard Cohen
Richard.cohen@splcenter.org
David Dinielli
David.dinielli@splcenter.org
Southern Poverty Law Center
400 Washington Avenue
Montgomery, AL 36104

Amicus Curiae
J. Stanton Glasscox, Pro Se
stan@glasscoxlaw.com
GLASSCOX LAW FIRM, LLC
P.O. Box 2646
Birmingham, AL 35201

Shannon P. Minter
SMinter@nclrights.org
Cstoll@nclrights.org
Natl Ctr. for Lesbian Rights
870 Market St., Suite 370
San Francisco, CA 94102
Randall C. Marshall
rmarshall@aclualabama.org
ACLU of Alabama Foundation
P.O. Box 6179
Montgomery, AL 36106
s/ Roger K. Gannam
Roger K. Gannam
Attorney for Relators

11

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

IN THE UNITED STATES DISTRICT COURT FOR THE

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES N. STRAWSER, et al.,
Plaintiffs,
vs.
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.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 14-0424-CG-C

________________________________________________________________________
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 Courts 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 Countys Judge of

EXHIBIT A

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 2 of 14

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
2

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 3 of 14

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 Courts Order in Searcy I
was the Attorney General.

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 4 of 14

6.

The Attorney General moved for a stay of the Courts 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
4

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 5 of 14

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 Courts 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 courts 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
5

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 6 of 14

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 attorneys 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 Clerks 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 Daviss obligation to follow the Constitution does not arise from this
courts 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 Courts Orders. This In Rem action focused on whether Chief Justice
Moores Administrative Order was still valid after the U.S. Supreme Court ruling
denying the Attorney Generals request for a stay of Searcy Is 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.
6

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 7 of 14

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 Courts 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 Courts 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
7

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 8 of 14

request for relief.

19.

Judge Davis then complied with this Courts order in Strawser, and all of

the Strawser Plaintiffs have since received marriage licenses pursuant to this Courts
injunction.
20.

Since the time of this Courts first order with respect to same-sex marriage

in Searcy I, and this Courts 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 Courts 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.

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 9 of 14

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 Courts 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 Daviss 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
9

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 10 of 14

Davis when, despite the fact he is directly subject to this Courts 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 Courts Orders,
when read in conjunction with the Alabama Supreme Courts 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 Courts 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.

10

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 11 of 14

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 todays 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 Courts 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 Courts injunction and relief sought by the Plaintiffs in Strawser. The
Plaintiffs in Strawser have all been provided marriage licenses. As the Plaintiffs have
11

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 12 of 14

already received the specific relief they requested against Judge Davis, they would not be
harmed by this Courts 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
mike@satterwhitelaw.com
harry@satterwhitelaw.com
12

Case 1:14-cv-00424-CG-C Document 71 Filed 03/05/15 Page 13 of 14

OF COUNSEL:
SATTERWHITE, DRUHAN, GAILLARD & TYLER, LLC
1325 Dauphin Street
Mobile, Alabama 36604
(251) 432-8120 (phone)
(251) 405-0147 (fax)
harry@satterwhitelaw.com

/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)
lee.hale@comcast.net

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
501 Washington Avenue
Montgomery, Alabama 36130-0152
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
13

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

Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
1100 H Street, NW Suite 540
Washington, DC 20005
sminter@nclrights.org
csoll@nclrights.org
Heather Fann
Boyd, Fernambucq, Dunn & Fann, P.C.
3500 Blue Lake Drive, Suite 220
Birmingham, Alabama 35243
hfann@bfattorneys.net
Randall C. Marshall
ACLU Foundation of Alabama
P.O. Box 6179
Montgomery, Alabama 36106-0179
rmarshall@aclyalabama.org

/s/ Harry V. Satterwhite

HARRY V. SATTERWHITE

14

Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 1 of 5

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.
)
)
LUTHER STRANGE, in his official )
capacity as Attorney General for
)
the State of Alabama, et. al.,
)
)
Defendant.

CIVIL NO. 14-0424-CG-C

ORDER
This matter is before the court on Plaintiffs Emergency Motion for
Enforcement of Injunction (Doc. 60), the Attorney Generals 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 Alabamas samesex 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.
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.
1

EXHIBIT B

Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 2 of 5

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

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.
2

Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 3 of 5

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 Courts 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 Courts orders.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
3

Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 4 of 5

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 Generals action in permitting the
writ of mandamus petition to proceed is akin to improperly thwarting the
denial of the States request for a stay of this Courts 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 Generals 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).
4

Case 1:14-cv-00424-CG-C Document 67 Filed 02/20/15 Page 5 of 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 Generals conduct that can be redressed through
further relief against him. For these reasons, Plaintiffs 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