E-Filed

02/18/2015 @ 05:44:31 PM
Honorable Julia Jordan Weller
Clerk Of The Court

No. 1140460
________________________________________________
IN THE SUPREME COURT OF ALABAMA
________________________________________________
Ex parte State of Alabama ex rel. Alabama Policy Institute
And Alabama Citizens Action Program
(In re: Alan L. King, in his official capacity as Judge Of
Probate for Jefferson County, Alabama, et al.)
_______________________________________________
On Petition for Writ of Mandamus

ANSWER AND BRIEF OF RESPONDENT STEVEN L. REED

________________________________________________
Robert D. Segall (SEG003)
Copeland, Franco, Screws &
Gill, P.A.
P.O. Box 347
Montgomery, AL 36101-0347
Phone: (334) 420-2956
Fax: (334) 834-1180
Thomas T. Gallion (GAL010)
Constance C. Walker (WAL144)
Haskell Slaughter & Gallion,
LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Phone: (334) 265-8573
Fax: (334) 264-7944
Samuel H. Heldman (HEL009)
The Gardner Firm, PC
2805 31st St NW
Washington, DC 20008-3524
sam@heldman.net
Phone: (202) 965-8884
Fax: (202) 318-2445

Tyrone C. Means (MEA003)

H. Lewis Gillis (GIL011)
Kristen Gillis (GIL078)
Means Gillis Law, LLC
P.O. Box 5058
Montgomery, AL 36103-5058
Phone: (334) 270-1033
Fax: (334) 260-9396
John Mark Englehart
(ENG007)
9457 Alysbury Place
Montgomery, AL 36117-6005
Phone: (334) 782-5258
Fax: (334) 270-8390

TABLE OF CONTENTS
Table of Authorities ..............................ii-5
I.

INTRODUCTION ............................1

II.

STATEMENT OF THE FACTS ..................4

III.

Petitioners Lack Standing to Bring This

Proceeding, and This Court Thus Lacks
Subject Matter Jurisdiction to Hear It ..4

IV.

The absence of standing in this case is not

remedied by purporting to sue for the State
in an ex rel fashion ..................20

V.

This Court lacks original jurisdiction

over the petition .......................24

VI.

The prerequisites for issuance of the writ

are absent here .........................35

VII.

The Chief Justices Administrative Order

does not provide a basis for issuance of
the Writ ................................36

VIII. The fictitiously named Probate Judges

should be struck from the Petition ......37
CONCLUSION.............................................39
CERTIFICATE OF SERVICE.................................41

TABLE OF AUTHORITIES
Case
Ala. DOT v. Harbert Intl, 990 So.2d 831,
848 (Ala. 2008) ...................................2
Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (Ala.
1895) .............................................34
Brogden v. Employees Retirement System, 386 So. 2d 1376,
1379 (Ala. Civ. App. 1976) ........................ 29,30,31
Cadle Co. v. Shabani, 4 So.3d 460, 462-63
(Ala. 2008) .......................................6,7
Chilton County v. Butler, 225 Ala. 191, 142 So. 531 (Ala.
1932) .............................................20
Cotton v. Rutledge, 33 Ala. 110 (Ala. 1958) .......29
Denson v. Bd. of Trustees of Univ. of Ala., 247 Ala. 257,
258, 33 So. 2d 714, 714-15 (1945) .................24
Ex parte Ala. Textile Products Corp., 242 Ala. 609, 613,
7 So. 2d 303, 306 (Ala. 1942) .....................27-31
Ex parte Aull, 149 So.3d 582, 591 (Ala. 2014) .....5-7
Ex parte Barger, 243 Ala. 627, 628, 11 So. 2d 359,
360 (1943) ........................................24
Ex parte Davis, ___ So.3d ___, 2015 Ala. LEXIS 16, *9, *14
(Ala. 2015) .......................................3,35
Ex parte Du Bose, 54 Ala. 278, 280-281 (Ala. 1875) 32,33
Ex parte Ferrari, ___ So.3d ____, 2015 Ala.
LEXIS 13, *16 (Ala. 2015) .........................32
Ex parte Giles, 133 Ala. 211, 212, 32 So. 167 (1902) .... 24
Ex parte Jim Walter Res., Inc., 91 So. 3d 50
Ala. 2012) ........................................27
ii

TABLE OF AUTHORITIES
(Continued)
Ex parte King, 50 So.3d 1056, 1059-60 (Ala. 2010) .
..................................................6,8,14
Ex parte Morgan, 259 Ala. 649, 651, 67 So. 2d
889, 890 (1953) ...................................24
Ex parte Pearson, 76 Ala. 521, 523 (1884) .........25
Ex parte Price, 252 Ala. 517, 41 So. 2d 180
(Ala. 1949) .......................................25
Ex parte Richey, 255 Ala. 150, 157, 50 So. 2d 441,
447 (1951) ........................................24
Ex parte Russell, 29 Ala. 717 (Ala. 1857) .........25
Ex parte Sasser, 730 So. 2d 604, 605 (Ala. 1999) .. 2
Ex parte Stover, 663 So.2d 948, 951 (Ala. 1995) ...38
Ex parte Town of Valley Grande, 885 So. 2d 768,
770 Ala. 2004) ...................................26
Ex parte Tubbs, 585 So. 2d 1301, 1302
(Ala. 1991) .......................................24
Franks v. Norfolk Southern Railway Co., 679 So. 2d
214, 216 (Ala. 1996) ..............................27
Hollingsworth v. Perry, 133 S.Ct. at 2662 .........10-18
Hunt v. Washington State Apple Advertising Commn,
432 U.S. 342-43 (1977) ................................ 15
Jones v. Black, 48 Ala. 540, 543 (Ala. 1872) .......... 15
Kendrick v. State, 256 Ala. 206, 213, 54 So.2d 442,
447 (Ala. 1951) ..................................... 20-23
Kids Care, Inc. v. Alabama Dept of Human Resources, 843
So.2d 164, 165 (Ala. 2002) ........................7,8,14
iii

TABLE OF AUTHORITIES
(continued)
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
(1992) ............................................6
Merchants Nat'l Bank v. Morris, 273 Ala. 117, 120
(Ala. 1961) .......................................2
Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
811-12 (1985)..........................................39

Ramaguano v. Crook, 88 Ala. 450, 451, 7

So. 247 (1890) ....................................25
Russo v. Ala. Dept. of Corrections, 149 So.
3d 1079, 1081 (Ala. 2014) .........................31
Searcy v. Strange, No. 14-0208-CG-N (S.D. Ala.) ...35
State Bd. of Optometry v. Lee Optical, 287 Ala.
528, 531, 253 So.2d 35, 37 (Ala. 1971) ............23
State ex rel. Chilton County v. Butler,
225 Ala. 191, 142 So. 531 (Ala. 1932) .............20
Strange v. Searcy, No. 14A-840 ....................22,35
Town of Cedar Bluff v. Citizens Caring for Children,
904 So.2d 1253, 1256 (Ala. 2004) ..................6-15
Town of Flat Creek v. Alabama By-Products Corp.,
245 Ala. 528, 531, 17 So. 2d 771, 772 (1944) ......26
United States v. Windsor,570 U.S.12 (2013) ........22
Warth v. Seldin, 422 U.S. 490, 511 (1975) .........15
White v. John, 92 So.3d, 737, 2014 Ala.
LEXIS 144, *29 (Ala. 2014) ........................2
Wood v. Farnell, 50 Ala. 546 (Ala. 1874) ..........29
iv

Statutes
Ala. Code 12-2-7(3) ...............................24
Ala. Code 12-11-30(4) ...........................26
Ala. Code 12-2-7(2) .............................25-26
42 U.S.C. 1988 ..................................36
Rules
Ala. R. Civ. P. 9(h)...................................37-38

Ala. R. Civ. P. 17(a) .............................23

Constitutional Provisions
Art. VI, 140(b), Const. of Ala. 1901 ............24
Art. VI, 142(b), Const. of Ala. 1901 ............26

I.INTRODUCTION.
The petition should be dismissed for several reasons,
including that Petitioners have no standing and are not
otherwise proper parties to bring this action on behalf of
the State, that there is no original subject matter
jurisdiction in this Court, and that the prerequisites to
the grant of the requested writ are not satisfied.
arguments are addressed below.

Those

But even if one leaves

those aside for the moment, still the Petition both in

what it says, and what it obscures offers no equitable
reason for this Court to intervene.
The Petition seeks a ruling based only on Alabama law.

The

Petition does not ask this Court to rule on the federal

constitutional questions about same sex marriage.
Respondents do not ask this Court to rule on those federal
questions either, and it would be too late for Petitioners
to make such a request in their reply brief.
What Petitioners do not mention, oddly, is that the
Supreme Court of the United States will decide the federal
questions by approximately the end of June, just about four
months from now.
Another thing Petitioners do not mention is the very
1

high probability that, if this Court were to issue an order

stopping Respondents from issuing marriage licenses,
Respondents would be sued in federal court.

And it is

probable, given the majority view among the federal courts,

that Respondents would be enjoined to issue licenses.
A mandamus petition is either a proceeding in equity, 1
or a proceeding at law governed by equitable principles. 2
Among those principles are that equity will not do a vain
thing, 3 and that equity is always mindful of balancing the
respective harms to the parties before issuing a remedy.
The question thus arises: what good, and what harm,
would this Court do by issuing the order that Petitioners
seek?
By granting the requested relief, this Court would not
actually stop any couple from marrying for very long.

The

Court, by deciding the issues of state law as Petitioners

Ala. DOT v. Harbert Intl, 990 So.2d 831, 848 (Ala. 2008)
(Murdock, J., concurring specially).

Ex parte Sasser, 730 So. 2d 604, 605 (Ala. 1999).

Merchants Nat'l Bank v. Morris, 273 Ala. 117, 120 (Ala.

1961); see also White v. John, 92 So.3d, 737, 2014 Ala.
LEXIS 144, *29 (Ala. 2014) (injunction will not issue where
there is no demonstration that it would actually prevent
the allegedly threatened injury).

request, would simply make Respondents into targets of

federal litigation.
Therefore, if this Court granted the writ that
Petitioners seek, it would put Probate Judges in an
untenable position, even worse than the angst and
consternation, `darned if I do, darned if I don't
dilemma that already faces them now.

Ex parte Davis, ___

So.3d ___, 2015 Ala. LEXIS 16, *9, *14 (Ala. 2015) (Bolin,
J., concurring).
If a Probate Judge followed this Courts order (of the
sort that the Petition seeks), a Probate Judge would
subject himself to suit in federal district court, which
would in turn lead to much expenditure of public funds: not
only funds for the defense of the case, but in all
likelihood an award of attorneys fees to any plaintiff
under 42 U.S.C. 1988.

Multiplied across all the various

counties in the State, the cost to the taxpayers would be

enormous at a time when the State can ill afford it.
On the other hand, if a Probate Judge honored the
decision of the United States District Court for the
Southern District of Alabama, which both the Eleventh
Circuit and the United States Supreme Court determined
3

should not be stayed, then the Probate Judge might be held

in contempt in state court.
This Court should not place Probate Judges in such
unfair and undeserved jeopardy, especially when the legal
battle over same sex marriage is very likely to be
concluded within a few months, and when the order
Petitioners seek from this Court would not settle the
matter, even for a moment.
In short, given the actual circumstances that face the
Court, granting the requested relief would be inequitable
no matter what ones view on the federal questions that are
not before this Court for decision.
II.

STATEMENT OF THE FACTS

Respondent Reed adopts the Statement of the Facts set

out in the Joint answer and Brief Respondents King and

Ragland.
III. Petitioners Lack Standing to Bring This Proceeding, and
This Court Thus Lacks Subject Matter Jurisdiction to
Hear It.
Petitioners, two non-profit organizations dedicated to
influencing public policy in the interest of preserv[ing]
strong families and lobbying the Alabama Legislature
to promote pro-family and pro-moral issues, Petition,
4

at 9, 10, have failed to identify any tangible, concrete

interest of their own or their members that is served by
Alabamas ban on same-sex marriages -- much less any harm
caused to any such interest by the federal courts
suspension of that ban; how that suspension caused any such
harm; or how this Courts issuance of an emergency writ 4
would remedy any harm to any legally protected, personal
interest of petitioners.

This lack of standing on the part

of petitioners is a jurisdictional defect, e.g., Ex parte

Aull, 149 So.3d 582, 591 (Ala. 2014), which requires
dismissal of their petition.

It is unclear from the petition the precise relief

petitioners seek. An order giving Alabama probate judges
a clear judicial pronouncement that Alabama law prohibits
the issuance of marriage licenses to same-sex couples,
Petition, at 25, would compel nothing, and only restates an
abstract principle of Alabama law that no one disputes.
Alternatively, petitioners deem it appropriate for this
Court to command probate judges compliance with [Chief
Justice Moores] Administrative Order, Petition, at 24, -effectively banning either the named respondent judges or
all Alabama probate judges from issuing marriage licenses
to same-sex couples. Such a ban would be contrary to the
federal courts finding that such a ban is
unconstitutional, and in direct conflict with an injunction
expressly prohibiting, at present, one such named probate
judge from enforcing that ban. But, to the extent
petitioners request entry of such an order, they nowhere
address how that would affect any tangible interest they
personally enjoy.

This Court has expressly adopted the same test for

standing applied by the United States Supreme Court.

E.g.,

Ex parte Aull, 149 So.3d at 592; Ex parte King, 50 So.3d

1056, 1059-60 (Ala. 2010); Town of Cedar Bluff v. Citizens
Caring for Children, 904 So.2d 1253, 1256 (Ala. 2004).
Under this test, a party establishes standing to sue when
it satisfies three elements:
First, the plaintiff must have suffered an injury
in fact an invasion of a legally protected
interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural
or hypothetical. Second, there must be a causal
connection between the injury and the conduct
complained of the injury has to be fairly
trace[able] to the challenged action of the
defendant, and not th[e] result [of] the
independent action of some third party not before
the court. Third, it must be likely, as
opposed to merely speculative, that the injury
will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
(1992) (citations omitted).

The U.S. Supreme Court has

further explained that "[b]y particularized, we mean that

the injury must affect the plaintiff in a personal and
individual way." Lujan, 504 U.S. at 560 n. 1.
Standing is the requisite personal interest that must
exist at the commencement of the litigation.

Cadle Co. v.

Shabani, 4 So.3d 460, 462-63 (Ala. 2008) (quotations

6

omitted).

Standing is a jurisdictional requirement.

Ex parte Aull, 149 So.3d at 591.

E.g.,

When parties without

standing purport[] to commence an action, the trial court

acquires no subject matter jurisdiction.

E.g., Cadle

Co., 4 So.3d at 463 (quoting State v. Property at 2018

Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999)); Kids
Care, Inc. v. Alabama Dept of Human Resources, 843 So.2d
164, 165 (Ala. 2002)(same).

In the absence of subject

matter jurisdiction, the court can do nothing but dismiss

the action forthwith. Cadle Co., 4 So.3d at 363.
Petitioners, Alabama Policy Institute (API) and
Alabama Citizens Action Program (ALCAP), pay only lip
service to demonstrating injury-in-fact, and fail at both
steps.

The generalized interests theyve articulated are

neither sufficiently particularized, concrete, nor personal

to petitioners to be legally protected; nor have
petitioners specified what harm they suffered to their
interests or how.
API as an organization asserts an interest in
influencing public policy to preserv[e] rule of law,
limited government, and strong families. Emgergency
Petition for Writ of Mandamus (Petition) Petition, at 97

10.

To the extent arguably relevant here, API pursues that

policy interest by publishing studies showing the benefits

to families of heterosexual marriage and the detriments to
families from same-sex marriages.

Id. at 10.

ALCAPs

asserted organizational interests are even more vague:

ALCAP states only that it exists to lobby the Alabama
Legislature on unspecified pro-life, pro-family and promoral issues on behalf of churches and individuals who
desire a family-friendly environment in Alabama.

Id.

But, similarly elusive and abstract interests in

promoting certain values or preferred policy outcomes have
routinely been found by both the United States Supreme
Court and this Court not to qualify as legally protected
right[s], e.g., Town of Cedar Bluff, 904 So.2d at 1256;
2018 Rainbow Drive, 740 So.2d at 1027, and an alleged harm
or impediment to such a value or policy preference found
not to constitute injury in fact or injury to a legally
protected right, e.g., id.; Ex parte King, 50 So.3d at
1060-61 (no right or injury); Kids Care, Inc., 843 So.2d
at 166-67 (no injury), as necessary for standing to exist.
For example, in Town of Cedar Bluff, a political
committee (Citizens Caring for Children) and its
8

chairperson sued their town and mayor to enjoin a local

option wet-dry election concerning whether to allow the
sale and distribution of alcoholic beverages within the
then-dry town, on the ground that the enabling legislation
that authorized the election was unconstitutional. 904
So.2d at 1255 and n. 2.

The trial court allowed the

election to proceed, but later declared the enabling

legislation unconstitutional and the election void; and
enjoined the town from issuing any licenses authorizing the
sale of alcohol.

Id. at 1255.

On appeal, this Court found plaintiffs lacked standing

to sue and reversed the trial courts judgment.
1259.

Id. at

Plaintiffs made conclusory claims which are more

specific than petitioners assertions here -- that (1)

citizens and voters, including plaintiffs, are injured
when an invalid election is held as the result of an
unconstitutional statute, and (2) the introduction of
alcohol sales into a town like Cedar Bluff will result in
an injury to the towns welfare, health, peace and
morals. Both were held insufficient to establish the
actual, concrete and particularized injury in fact to

plaintiffs as required to satisfy the first element of

standing.

Id. at 1257, 1258-59.

Even more squarely on point, the U.S. Supreme Court in

Hollingsworth v. Perry found that the private intervenors,
even though designated as the official proponents of a
ballot initiative to amend the California state
constitution to define marriage as a union between a man
and a woman, lacked standing to appeal to defend the
constitutionality of the duly enacted constitutional
amendment, after the state Attorney General and other state
official defendants (all of whom had declined to defend the
law in the District Court) chose not to appeal. 5 133 S.Ct.
2652, 2662-2664, 2668 (2013).

The California attorney general and other state officials

chose not to defend the law in the District Court; were
enjoined by the District Court from enforcing the law, when
that court declared the law unconstitutional; and then
elected not to appeal the District Courts judgment.
Instead, the private intervenors defended the law in the
District Court, appealed that courts adverse judgment, and
defended the law before the U.S. Court of Appeals for the
Ninth Circuit. Id. at 2660. Here, Judge Granade has
enjoined the Alabama Attorney General and those acting in
concert and participation with him from enforcing the
Alabama marriage statute and constitutional amendment.
Exhibit A, at 10; Ex. B, at 4.

10

The Hollingsworth intervenors only interest in

pursuing an appeal was to vindicate the constitutional
validity of a generally applicable [state] law.
at 2662.

133 S.Ct.

Here, petitioners request that this Court (in a

collateral proceeding) reiterate the requirements of

Alabama law, and then require all state probate judges to
comply with that state law 6, also seeks merely to vindicate
enforcement of that law -- even though that law (as with
the Hollingsworth intervenors and the California marriage
amendment) does not affect either API, ALCAP, or any known
or alleged constituent in a personal and individual
way.

Id. (quoting Lujan, 504 U.S. at 560 n. 1)(injury

that affects [the party] in a personal and individual

way is required for that partys standing).
Stated differently, petitioners API and ALCAP claim
only harm to [their] and every citizens interest in
proper application of the Constitution and laws, and seek[]
relief that no more directly and tangibly benefits [them]

Even though such an order is inconsistent with a federal

courts finding of unconstitutionality, and even though
compliance with such an order, for any named defendant
probate judge in that federal court, would violate a
federal injunction.

11

than it does the public at large.

Hollingsworth, 133

S.Ct. at 2662 (quotation omitted).

But, it is well settled

that such a generalized grievance, no matter how

sincere, is insufficient to confer standing.

Id.

One can

readily surmise from their mandamus complaint that

petitioners disagree sincerely (and likely strongly) with
the federal courts order holding the Alabama marriage
statute and marriage amendment unconstitutional, having
requested this Court order all probate judges to comply
with the state statute and amendment regardless (unless and
until, implicitly, the U.S. Supreme Court issues binding
authority, see Petition, at 18-19 n. 3).

But, [t]he

presence of a disagreement, however sharp and acrimonious

it may be, is insufficient by itself to meet standing
requirements.

Hollingsworth, 133 S.Ct. at 2661 (quotation

omitted).
Even if petitioners full-throated but generalized
interest in the enforcement of the Alabama marriage statute
and marriage amendment were a legally protected right,
e.g., Town of Cedar Bluff, 904 So.2d at 1256, their
petition fails to show that interest was injured in fact.

12

Indeed, petitioners nowhere allege that they have been or

will be harmed by the challenged acts. 7
Petitioners only arguable allegations of harm consist
of: 1) a passing reference to the [unspecified] statewide
injury to the public caused by infidelity to Alabamas
marriage laws, Petition, at 23; 2) confusion and
disarray resulting from some probate judges issuing, and
others refusing to issue, same-sex marriage licenses,
Petition, at 23, 25; and 3)implicitly, the [unspecified]
detriments [to families] associated with same-sex unions
-- which petitioners have not alleged to have occurred, but
which arguably may be inferred from APIs publication of
studies asserting the existence of such harms.

See

Petition, at 10.

Petitioners have not specifically identified the acts they

challenge, requiring respondents and this Court to
speculate whether petitioners challenge and seek relief
from (a) Judge Granades order declaring that the marriage
statute and constitutional amendment violate the federal
constitution, and her orders enjoining the Attorney General
from enforcing the statute and amendment, and Mobile County
Probate Judge Don Davis from refusing to issue marriage
licenses, or from refusing to issue licenses to same-sex
couples; or (b) the decisions by the respondent judges here
to follow Judge Granades declaration of
unconstitutionality and issue marriage licenses to same-sex
couples, or (c) both.

13

But, none of those allegations asserts that either

petitioner (or even any particular constituent or set of
constituents) has been, or even will be, harmed itself.
E.g., Ex parte King, 50 So.2d at 1061-62 (no standing where
plaintiffs not personally deprived of right to vote or
denied equal treatment); Town of Cedar Bluff, 904 So.2d at
1258 (failure to allege particular injuries plaintiffs
would suffer).

Petitioners allegations fail to support

even that anyone else in particular has been or will be

harmed.

E.g., Town of Cedar Bluff, 904 So.2d at 1258

(failure to allege particular injuries anyone other than

plaintiffs would suffer).

Nothing in petitioners

complaint shows how or in what manner petitioners or anyone

else has been or will be harmed. E.g., id. at 1257 (failure
to allege in what respect plaintiffs were injured by the
holding of the allegedly unconstitutional local option
election); Kids Care, Inc., 843 So.2d at 167 (lack of
allegations how DHRs failure to perform local market
survey harmed plaintiff).
Even if petitioners had alleged a particular (and not
vague) harm, whether to themselves or others, they failed
to show how and in what respect the respondent probate
14

judges acts harmed them in effect, asking this Court to

presume those acts caused them harm.

But, as this Court

first made clear over 150 year ago, for standing to exist,
injury will not be presumed; it must be shown. 8

E.g.,

Town of Cedar Bluff, 904 So.2d at 1256 (quoting Jones v.

Black, 48 Ala. 540, 543 (Ala. 1872)).

This petitioners

have failed to do. 9

This showing refers to allegations in the complaint, not

evidence. See, e.g., Town of Cedar Bluff, 904 So.2d at
1256-57.
9 Petitioners argument for standing is not advanced by any
legal interest held or any harm suffered by any member of
either organization. See, e.g., Hunt v. Washington State
Apple Advertising Commn, 432 U.S. 342-43
(1977)(associational standing); Warth v. Seldin, 422 U.S.
490, 511 (1975)(same).
Neither group purports to be a voluntary association or
specifically claims any members, see, e.g., Hunt, 432 U.S.
at 342, although both groups purport to have thousands of
constituents throughout Alabama. Petition, at 9-10
(emphasis added). But, apart from the unnamed churches
and individuals referenced by ALCAP, neither group has
identified any of those constituents, or any particular
legal interest of any such constituent, whether shared with
or independent of that group much less any harm caused to
any such constituents claimed legal interest by the
challenged acts (presumably the issuance of same-sex
marriage licenses).
Even if either petitioner organization otherwise
satisfied the requirements for associational standing, the
lack of any alleged member who suffered harm to a concrete,
particularized, and legally protected interest from the
challenged acts would deprive both petitioner organizations
of standing to bring this action. E.g., Hunt, 432 U.S. at
343; Warth, 422 U.S. at 511-12. Absent any injury in fact
8

15

Moreover, the claims by both groups either to have been

a leading proponent or to have vigorously promoted
passage of the Marriage Act and/or the Marriage Amendment,
Petition, at 10-11, likewise fail to establish the standing
of either to sue.

Even if either API or ALCAP had

performed an official role under Alabama law in the passage

of the Act or the Amendment which neither did , upon
approval of the Act (by the Legislature) and the Amendment
(by the voters) both measures became duly enacted law.
that point, both groups lacked any official authority to
enforce either measure.

Accordingly, both groups lacked

any personal stake in defending [either laws]

enforcement that is distinguishable from the general
interest of every citizen of [Alabama], as would be
required to have standing to defend those laws here.
Hollingsworth, 133 S.Ct. at 2663.
Furthermore, the Court in Hollingsworth identified
several reasons not to extend standing to private party
proponents of a state law to defend its validity or to

to their own legal interests (as is missing here), both

petitioner organizations lack standing to sue. E.g.,
Hollingsworth, 133 S.Ct. at 2663, 2665.
16

At

seek its enforcement, as petitioners seek here. On one

hand, the State of Alabama clearly has a cognizable
interest in the continued enforceability of its laws that
is harmed by a judicial decision declaring a state law
unconstitutional.

Id. at 2664 (quotation omitted).

But,

[t]o vindicate that interest or any other, [Alabama] must

be able to designate agents to represent it in court, id.,
which the State has not done with respect to petitioners.
Nor could petitioners (as alleged prominent
proponents or promoters of the marriage statute and
amendment) claim a cognizable interest in enforcing those
laws as putative agents of the people of Alabama.

As a

threshold matter, as with California and the intervenors in

Hollingsworth, Alabama (including its Attorney General,
whom the federal court has enjoined from enforcing those
laws) would have no agency right of a principal to control
petitioners actions, if this Court permitted petitioners
to sue.

133 S.Ct. at 2666.

Furthermore, petitioners are not elected officials.

If

granted standing, petitioners would be accountable to no

one as to the manner in which they exercise that standing.
Owing no fiduciary obligation to the State of Alabama,
17

petitioners would decide for themselves, with no review,

what arguments to make and how to make them.

Id.

Petitioners would be free to pursue a purely ideological

commitment to [each] laws constitutionality without the
need to take cognizance of resource constraints, changes in
public opinions, or potential ramifications for other state
priorities, id., -- for example, the financial burdens on
the respondent probate judges and taxpayers of their
counties if this Court opens up each judge to suit in
federal court (by effectively barring all of them from
following the federal courts order invalidating the samesex marriage ban, or from complying with any injunction
against enforcing that state law ban).
Whether viewed in terms of standing or proper parties
to enforce sovereign rights, these considerations all led
the Supreme Court in Hollingsworth to deny the intervenors
the right to sue to defend their generalized interest in
proper application of the Constitution and laws. Id. This
Court should do likewise as to petitioners.

To hold

otherwise and to find petitioners here have standing would

place[] [standing] in the hands of concerned bystanders,
who will use it simply as a vehicle for the vindication of
18

value interests.

Id. (quotations omitted).

But, [n]o

matter how deeply committed petitioners may be to upholding

the [Alabama marriage statute and amendment] or how zealous
[their] advocacy, that is not a particularized interest
sufficient to create a case or controversy so as to find
standing and invoke this Courts jurisdiction.

Id.

(quotations omitted).
In sum, even if petitioners had identified any legally
protected interest in defending the validity of Alabamas
same-sex marriage ban, they have failed to allege how any
such interest was harmed by lifting of the same-sex
marriage ban; how they personally were harmed; or how an
order of this Court reinstating Alabamas ban would remedy
any such harm to either petitioners personal interest.
Petitioners have not alleged, and cannot show, that they
suffered a concrete and particularized injury-in-fact; the
injury to their personal interest is fairly traceable to
the respondents probate judges challenged acts; or it is
likely that their injury-in-fact will be redressed by a
favorable ruling, i.e., any of the elements required to
demonstrate their standing.

19

IV. The absence of standing in this case is not remedied by

purporting to sue for the State in an ex rel fashion.
As shown above, Petitioners have no standing to bring
this suit; and this leaves the Court without jurisdiction.
Petitioners standing problem cannot be evaded, and
jurisdiction cannot be created, by purporting to sue for
the State in an ex rel fashion.

Judge Reed adopts the

argument of Judges King and Ragland in this regard, and

adds the following.
1.

As shown by Judges King and Ragland, a private

citizen cannot sue in the name of the State if the matter

concerns the sovereign rights of the State.

If the case

is of that sort, then it must be instituted on the

relation of the Attorney General, the law officer of the
State.

Kendrick v. State, 256 Ala. 206, 213, 54 So.2d

442, 447 (Ala. 1951); see also, e.g., State ex rel. Chilton
County v. Butler, 225 Ala. 191, 142 So. 531 (Ala. 1932).
Petitioners argue that they may bring this case in an
ex rel capacity because the public has an interest in
the marriage laws and how they are enforced.
21).

(Petition, at

But of course it could truthfully be said of any law

or of any executive action that it affects the public. It

could always be said, with some truth, that the public
20

also has some interest in how the law is observed or

whether the executive action was proper.

All laws and

executive actions affect the public in some sense, directly

or indirectly.

But the rule of cases such as Kendrick must

have a real field of operation: there are matters that

concern the sovereign rights of the State such that only
the Attorney General may sue a state officer on the States
behalf.

Claiming a public interest in enforcement of the

law, or an interest in how a public official handles a

difficult situation, is not always enough to allow any
private entity to sue a State officer in the name of the
State.
No matter what position one takes on the federal
questions regarding same sex marriage and again those
questions are not before this Court one thing is crystal
clear.

That is this: that the matter concerns the

sovereign rights of the State, and concerns whether the

States sovereign right to define marriage is limited by
the Fourteenth Amendment to the United States Constitution
in the way that advocates of same sex marriage contend.
Indeed, Governor Bentley emphasized the connection to
State sovereign rights to the Supreme Court of the United
21

States, when he appeared as amicus in support of the

unsuccessful request for a stay of Judge Granades orders:
he repeatedly emphasized his view that defining the
incidents of the marital relation was a matter of the
States sovereign power.

See Motion of Robert J.

Bentley, Governor of Alabama, in Strange v. Searcy, No.

14A-840 (Supreme Court of the United States, filed February
4, 2015). 10
Here, Probate Judges are faced with a complex
situation: i.e., what to do when State laws have been held
unconstitutional by a federal court, and all levels of the
judiciary up to and including the Supreme Court of the
United States have declined to stay that ruling.

When a

Probate Judge faces this quandary, the matter concerns

This document is currently viewable at <http://documents.

buzzfeed.com/14A840%20Amicus%20Motion%20for%20Leave%20Bentl
ey.pdf>

10

The United States Supreme Court has also recognized that

the definition of marriage and laws related to marriage
concern the sovereign rights of the State. See United
States v. Windsor,570 U.S.12 (2013) where, in the majority
opinion, the Court noted that: The arguments put forward
by BLAG are just as candid about the congressional purpose
to influence or interfere with state-sovereign choices
about who may be married. . . .
22

questions that highly implicate state sovereignty, as well

as implicating related questions about compliance with
federal law.

Under cases such as Kendrick, this is the

very sort of situation in which state officials must not be

subjected to litigation by just anyone who feels strongly
about the issue.
2.

There is another more fundamental point, though

given what has been said above, the Court should not have
to reach it.

The more fundamental point is this: a private

party purporting to sue on behalf of the State, in an ex

rel capacity, is a remnant of a bygone era that should be
put to rest.

In the modern era, litigation must be brought

in the name of the real party in interest.

17(a).

The same should be true in original proceedings in

this Court.
period.

Ala. R. Civ. P.

Thus this litigation is by the Petitioners,

State Bd. of Optometry v. Lee Optical, 287 Ala.

528, 531, 253 So.2d 35, 37 (Ala. 1971) (noting, even before
the Rules of Civil Procedure, that the relator is the real
party in interest).

And in the modern era, this Court has

attended with great care to issues of standing which, as

explained above, include the settled rule that one does not
have standing merely because he has a generalized grievance
23

that he would like to see the law enforced as he thinks it

should be.
V.

This Court lacks original jurisdiction over the

petition.
This is a court of very limited original jurisdiction.

Ex parte Tubbs, 585 So. 2d 1301, 1302 (Ala. 1991); Ex parte

Giles, 133 Ala. 211, 212, 32 So. 167 (1902).

This Court does

not have, or should not exercise, jurisdiction here for

multiple reasons.
1. This Court has original jurisdiction to issue such
remedial writs or orders as may be necessary to give it
general

supervision

jurisdiction.

and

control

of

courts

of

inferior

Art VI, 140(b), Const. of Ala. 1901.

This

authority is also reiterated in Ala. Code 12-2-7(3).

This

Court, however, will not exercise original jurisdiction in

the issuance and determination of writs of mandamus (and other
extraordinary writs) to inferior courts, such as probate
courts, when there is another court that has jurisdiction to
entertain such writ. Ex parte Tubbs, 585 So. 2d at 1302;
Denson v. Bd. of Trustees of Univ. of Ala., 247 Ala. 257, 258,
33 So. 2d 714, 714-15 (1945); Ex parte Barger, 243 Ala. 627,
628, 11 So. 2d 359, 360 (1943); Ex parte Morgan, 259 Ala. 649,
651, 67 So. 2d 889, 890 (1953); Ex parte Richey, 255 Ala. 150,
24

157, 50 So. 2d 441, 447 (1951); Ex parte Price, 252 Ala. 517,
41 So. 2d 180 (Ala. 1949); Ramaguano v. Crook, 88 Ala. 450,
451, 7 So. 247 (1890); Ex parte Russell, 29 Ala. 717 (Ala.
1857); see also, Ex parte Pearson, 76 Ala. 521, 523 (1884):
By statute, this court is impliedly prohibited
from exercising original jurisdiction in the issue
and determination of writs of mandamus, in relation
to
matters
of
which
any
other
court
has
jurisdiction; and from issuing remedial and original
writs, in the exercise of appellate jurisdiction,
except when necessary to give it a general
superintendence
and
control
of
inferior
jurisdictions. [Citation omitted]
And by Section
657, the Circuit Court has authority to exercise a
general
superintendence
over
all
inferior
jurisdictions. By the statutes, the Circuit or City
Court has jurisdiction of the matter; a general
superintendence over the Probate Court of Montgomery
county. The issue of a mandamus directly from this
court, to the Probate Court, is not necessary to
give a general superintendence and control. Such
superintendence and control are acquired by an
appeal from the judgment of the judge of the Circuit
or City Court, as the case may be, on application
for the writ of mandamus. For these reasons, the
application must be dismissed.
Under these cases, this Court does not have or at least
should not exercise jurisdiction here.
This Court also has authority to exercise original
jurisdiction in the issuance and determination of writs of
mandamus in relation to matters in which no other court has
jurisdiction.

Ala. Code 12-2-7(2).

25

But here, the circuit

courts do in fact have the authority to issue writs of

mandamus to probate courts.

Consequently, 12-2-7(2) grants

no jurisdiction to this Court here.

The Circuit Courts have the authority to issue such
writs as may be necessary or appropriate to effectuate its
powers, and shall have such other powers as may be provided
by law.

Art. VI, 142(b), Const. of Ala. 1901.

Further,

the Circuit shall exercise a general superintendence over

all district courts, municipal courts, and probate courts.
Ala. Code 12-11-30(4).
This Court has held that to the extent a circuit court
cannot

exercise

inferior

court

its
by

general
appeal,

the

superintendence
circuit

court

over
has

an
the

constitutionally-based authority to exercise such general

superintendence by appropriate writs, such as a writ of
mandamus.

Town of Flat Creek v. Alabama By-Products Corp.,

245 Ala. 528, 531, 17 So. 2d 771, 772 (1944) ([O]rders and
decrees

[of

the

probate

court]

not

within

the

statute

[authorizing appeals from the probate court] are reviewed by

certiorari, mandamus or writ of prohibition, as the case may
be); Ex parte Town of Valley Grande, 885 So. 2d 768, 770
(Ala. 2004) (circuit courts have authority to review orders
26

of probate courts, either through direct appeal or, when no

statute grants appellate jurisdiction, by review on petitions
for writ of certiorari, mandamus, or prohibition); Franks v.
Norfolk Southern Railway Co., 679 So. 2d 214, 216 (Ala. 1996).
Because the Circuit Court could consider a petition like
the present one, there is no jurisdiction in this Court
arising from 12-2-7(2).
Ex parte Jim Walter Res., Inc., 91 So. 3d 50 (Ala. 2012),
upon which Petitioners rely, should not be read as rejecting
this argument.

The Jim Walter court did not consider or even

refer

provisions

to

the

that

empower

circuit

courts

to

determine requests for writs (Art. VI, 142(b), Const. of

Ala. 1901), and to exercise general superintendence over
probate courts (Ala. Code 12-11-30(4) (1975)).
Petitioners also ask this Court to exercise original
jurisdiction based on a narrow exception used by the Supreme
Court in Ex parte Ala. Textile Products Corp., 242 Ala. 609,
613, 7 So. 2d 303, 306 (Ala. 1942).

The exception, framed

around the question whether action by this Court is necessary

to afford full relief and do complete justice, id., was
deemed warranted solely on that one occasion, and only under
unusual circumstances not present here.
27

Specifically,
exception

was

in

held

Ala.

to

Textile

justify

Products,

this

Courts

this

narrow

exercise

of

original jurisdiction over a petition for writ of certiorari

seeking review of a quasi-judicial order of the Alabama
Department of Industrial Relations - not a petition for writ
of mandamus directed to a probate judge.

This Court also

reasoned that it should exercise jurisdiction because all

parties consented to such jurisdiction.

Id. at 614.

Such

consent of the parties is not present in this case.

Moreover,

Ala.

Textile

Products

presented

unique

factual and procedural situation that likewise is not present

here.

For instance, there did not initially appear to be any

lower court with the authority to review the petition in that

case.

There were also significant concerns regarding the

need for an immediate decision which are not present here.

The narrow exception set forth in Textile Products does
not apply here.

Enlarging and extending the narrow exception

to this case is not supported by legal authority, and would

lead to undesirable results.
violated
theory

law

would

with

justify

Any time an official allegedly

state-wide
the

application,

filing

of

extraordinary writ with the Supreme Court.

28

Petitioners

request

for

an

Bypassing the

circuit courts who have authority to issue such writs would

become

commonplace.

Petitioners

request

This
to

Court

exercise

should

not

honor

jurisdiction

based

the
on

Textile Products.
2.

There is also an alternative basis for holding that

the circuit courts would have jurisdiction and that this Court
has none. This alternative argument proceeds from the premise
that issuing marriage licenses is an administrative, not a
judicial, act.

Wood v. Farnell, 50 Ala. 546 (Ala. 1874);

Cotton v. Rutledge, 33 Ala. 110 (Ala. 1958).

Art. VI, 142(b), Const. of Ala. 1901 provides, in part,
that the circuit court shall exercise general jurisdiction
in all cases except as may otherwise be provided by law.

As

explained in Brogden v. Employees Retirement System, 386 So.

2d 1376, 1379 (Ala. Civ. App. 1976), the circuit courts
possess two types of jurisdiction that are pertinent here:
(1) general subject matter jurisdiction; and (2) supervisory
jurisdiction
commissions

over
and

inferior

officers

judicial

exercising

bodies,

judicial

boards,

powers.

Id.

Actions challenging the administrative acts of officials fall

within

the

circuit

courts

general

29

jurisdiction,

whereas

actions challenging the judicial acts of inferior courts fall

within the circuit courts supervisory jurisdiction.

Id.

The alternative argument here is that circuit courts

would have jurisdiction, in a case like this one, because the
acts

of

issuing

and

denying

marriages

licenses

are

administrative acts, and any action challenging these acts

falls under the general jurisdiction of the circuit courts.
Brogden, 386 So. 2d at 1379.
an

action

for

In Brodgen, the court held that

declaratory

judgment

regarding

the

administrative acts of a state official was under the general

jurisdiction

of

the

circuit

court.

The

supervisory

jurisdiction of the circuit court was not invoked because

there was no judicial act of an inferior court involved.

Id.

at 1380.
Moreover, because the case falls within the general
jurisdiction

of

the

circuit

courts,

jurisdiction over the subject petition.

this

Court

has

no

This is not a case

invoking the Supreme Courts general supervisory jurisdiction

over inferior courts because there is no judicial act of an
inferior court that must be supervised. To the contrary, this
is an action challenging the administrative acts of officials.
There is no original jurisdiction in the Supreme Court.
30

See

Russo v. Ala. Dept. of Corrections, 149 So. 3d 1079, 1081

(Ala.

2014)

jurisdiction

(Supreme
to

issue

Court
writs

does
against

not

have

State

employees other than to the lower courts).

original

officers

and

Because there is

no judicial act of an inferior jurisdiction, the narrow

exception in Textile Products is inapposite as well.

The

acts complained of are administrative or ministerial and fall

under the general jurisdiction of the circuit courts. Brogden,
386 So. 2d at 1380 (an action that does not challenge a
judicial decision of a judicial body falls within the general
jurisdiction of any circuit court.)
The

Petitioners

have

jurisdiction of this Court.

failed

to

properly

invoke

the

This is a mandatory requirement

that must be satisfied before this Court can act.

The

Petition is therefore deficient, and is due to be dismissed.

VI. The prerequisites for issuance of the writ are absent
here.
A writ of mandamus is an extraordinary remedy that
requires a showing of (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty on
the respondent to perform, accompanied by a refusal to do
so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court.
31

Ex parte

Ferrari, ___ So.3d ____, 2015 Ala. LEXIS 13, *16 (Ala.
2015).

Those criteria are not met here.

The fourth criterion, a lack of jurisdiction, has been

addressed above and will not be repeated.
As to the third criterion lack of another adequate
remedy the proper conclusion is that if Petitioners are
parties with standing to seek any remedy, they should seek
it in Circuit Court as argued above.

But more to the

point, they do not have any remedy in any court because

they have no standing.

This does not mean that they meet

the third criterion for mandamus.

On the contrary, it

means that they are not entitled to any remedy in mandamus

or otherwise, because standing is a jurisdictional point.
As to the first criterion the clear legal right in
the petitioner to the order sought Petitioners fail in
various ways.

They themselves have no right to the order

sought, again because they have no interest that gives them

standing.

Furthermore, a court should not issue a writ

that would, in a collateral manner, decide questions of

importance between parties who are not parties to the
proceedings, and have had no notice or opportunity to
interpose their defense.

Ex parte Du Bose, 54 Ala. 278,

32

280-281 (Ala. 1875).

Petitioners seek a ruling on issues

that will (at least temporarily) affect those who seek

marriage licenses, yet no such person is a party to this
proceeding.

Mandamus is inappropriate under Du Bose.

Moreover, both as to the first criterion (a clear

legal right in the petitioner to the order sought) and
perhaps even more importantly the second (an imperative
duty on the respondent to perform, accompanied by a refusal
to do so), Petitioners fail to appreciate the position
that Probate Judges now find themselves in.
According to Petitioners view of the situation, the
question of imperative duty can be determined in this
case by looking only to state law.

(Petition, p. 22).

They properly do not ask this Court to address the

questions of federal constitutional law.

But improperly,

they pretend that such questions have no bearing on what a

Probate Judge must, or can, do in this situation.
To put it most plainly, the Court should not place on
Probate Judges an imperative duty under the particular
circumstances of this particular case, to take actions
which will cause them to be sued in federal court (or even
possibly to be subject to contempt proceedings in federal
33

court), and in all likelihood to lose and incur substantial

expense to the public.

Probate Judges, under the

particular circumstances facing them here, should have

discretion as to how to proceed.

Ashley v. State, 109 Ala.

48, 49, 19 So. 917, 918 (Ala. 1895) (the duty of issuing
marriage licenses under our statutes by the probate judge,
though ministerial, is a duty involving discretion,
official and personal).

And if there is discretion, then

mandamus is inappropriate; for mandamus will not issue to

compel the exercise of discretion in a particular manner.
See, e.g., State v. Ellis, ___ So.3d ____, 2014 Ala. LEXIS
162, *36 (Ala. 2014).
The circumstances include at least the following: (1)
A federal District Court has held that the United States
Constitution forbids the denial of marriage licenses to
same sex couples; the Court has held that Alabama laws
which require such denial are unconstitutional. (2) The
federal District Court has further noted that officials who
were not parties to that litigation may certainly follow
her ruling about the demands of the United States
Constitution and has warned that those who decline are
subject to suit, to injunction, and to adverse financial
34

consequences for the public. 11

(3)

The United States Court

of Appeals for the Eleventh Circuit and the Supreme Court

of the United States refused to stay the District Courts
order.

(4)

Probate Judges take an oath to follow both the

State Constitution and the United States Constitution. Art.

XVI, 279, Const. of Ala. 1901.

As Justice Bolin aptly

noted when concurring in Ex parte Davis, Probate Judges

were (as of last week) already in an untenable position.
Davis, 2014 Ala. LEXIS 16, *9.
Since that time, the situation has become more
untenable, if anything.

Now, the federal District Court

has enjoined Mobile County Probate Judge Davis, and others

in active concert or participation with him, from denying
same sex marriage licenses.

Some advocates believe that

this new injunction is binding on all Probate Judges, on

the theory that all such Judges act in concert (because,
for instance, Probate Judges do not serve only the
residents of their home counties).

Judge Reed does not

vouch for this argument, but it cannot be dismissed out of

hand; and this Court could not resolve the issue, because

January 28, 2015, Order Clarifying Judgment, (Doc. 65 in

Searcy v. Strange, No. 14-0208-CG-N (S.D. Ala.)) at p. 3.
11

35

it would be a matter for the federal court to decide under

federal law.

This is all the more reason to recognize

that Probate Judges must have some discretion, in terms of

which risks they choose to take in this situation.
An important question, then, is whether Probate Judges
in this untenable situation have an imperative duty to
ignore the federal courts ruling about what the United
States Constitution requires even when the higher federal
courts have declined to stay that ruling, even when that
ruling is in line with a clear majority of other federal
courts, even when most observers predict that the United
States Supreme Court will agree with that ruling, and even
when Probate Judges can surely expect that they too will be
sued in federal court if they resist the ruling.
Judge Reed respectfully suggests that it is important
from both a present and a historical perspective for this
Court to hold that state officials, such as Probate Judges,
have no imperative duty to fight against federal court
rulings on the United States Constitution.
VII. The Chief Justices Administrative Order does not
provide a basis for issuance of the Writ.
Respondent Reed adopts the argument of Judge Martin on
this issue.

36

VIII. The fictitiously named Probate Judges should be struck

from the Petition.

In addition to the four named respondent probate

judges, petitioners listed as fictitiously named
respondents Judge Does ##1-63, each representing an
Alabama probate judge who may issue, or may have issued,
marriage licenses to same-sex couples in Alabama.
Petition, at 9.

Even if pleading fictitious parties were

allowed in this Court, petitioners use violates standard

fictitious party requirements, requiring that all the Judge
Does be struck from the petition.
There is no rule (including but not limited to any
Alabama Rule of Appellate Procedure) that by its terms
permits fictitious party practice here. That alone should
require dismissal or striking of all the fictitiously named
judges.

Alternatively, even though Alabama Rule of Civil

Procedure 9(h) does not apply by its terms to an original

mandamus petition in this Court, if any fictitious party
practice is allowed in a petition like this, certainly the
principles of Rule 9(h) should apply as a matter of justice
and efficiency.

See Ala. R. App. P. 1.

Rule 9(h) provides:

37

When a party is ignorant of the name of an

opposing party and so alleges in the party's
pleading, the opposing party may be designated by
any name, and when that party's true name is
discovered, the process and all pleadings and
proceedings in the action may be amended by
substituting the true name.
Rule 9(h) is "not meant to excuse ignorance of the
identity of a cause of action, but only ignorance of the
name of the party against whom a cause of action is
stated."
Ex parte Stover, 663 So.2d 948, 951 (Ala. 1995)(quotation
omitted).
Petitioner cannot credibly claim to be ignorant of the
identities of the Judge Does, all of whom are elected
public officials who can readily be identified with minimal
effort. 12

Petitioners clearly failed to exercise the due

diligence required under Rule 9(h), e.g., id., to be

allowed to name respondents under fictitious names.

Even if it were relevant for Rule 9(h) purposes,

petitioners can scarcely even claim they were ignorant of a
cause of action against the Judge Does, given that a
significant majority of Alabama probate judges have been
issuing marriage licenses to same-sex couples since a
matter of days after the stay on Judge Granades injunctive
order expired.

12

38

Although their pleading does not state this expressly,

petitioners presumably seek the same relief against the
fictitiously-named Judge Does ##1-63 as against the named
respondent judges.

For these fictitiously-named (but

readily identifiable by petitioners) Judge Does to be bound

to any relief granted or order entered by this Court,
without being personally served, and receiving notice, the
opportunity to appear in person, and to respond to the
petition and otherwise be heard, would violate each such
judges right to due process.

See, e.g., Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985).

And,

any judgment or order entered in violation of due process

would be void.

Accordingly, all fictitiously-named Judge

Does ##1-63 are due to be struck from the petition.

CONCLUSION
For the reasons explained in this brief, and in the
briefs of other Respondents, Judge Reed respectfully asks
that the Court deny the requested writ and dismiss the
petition.
Attorneys for Judge Steven Reed
s/Robert D. Segall
Robert D. Segall (SEG003)
39

Copeland, Franco, Screws & Gill,

P.A.
P.O. Box 347
Montgomery, AL 36101-0347
Phone: (334) 420-2956
Fax: (334) 834-1180
segall@copelandfranco.com
s/Constance C. Walker
Thomas T. Gallion (GAL010)
Constance C. Walker (WAL144)
Haskell Slaughter & Gallion, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Phone: (334) 265-8573
Fax: (334) 264-7944
ttg@hsg-law.com
ccw@hsg-law.com
Samuel H. Heldman (HEL009)
The Gardner Firm, PC
2805 31st St NW
Washington, DC 20008-3524
sam@heldman.net
Phone: (202) 965-8884
Fax: (202) 318-2445
s/Tyrone C. Means
Tyrone C. Means (MEA003)
H. Lewis Gillis
Kristen Gillis
Means Gillis Law, LLC
P.O. Box 5058
Montgomery, AL 36103-5058
Phone: (334) 270-1033
Fax: (334) 260-9396
tcmeans@meansgillislaw.com
hlgillis@meansgillislaw.com
kjgillis@meansgillislaw.com
John Mark Englehart
9457 Alysbury PL
Montgomery, AL 36117-6005
Phone: (334) 782-5258
40

Fax: (334) 270-8390

Email: jmenglehart@gmail.com
Samuel H. Heldman (HEL009)
The Gardner Firm, PC
2805 31st St NW
Washington, DC 20008-3524
sam@heldman.net
Phone: (202) 965-8884
Fax: (202) 318-2445

41

CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I efiled the foregoing with the
Clerk of the Court on this 18th day of February, 2015 and I
have served the following counsel of record by email:
Attorneys for Petitioner
Mathew D. Staver

Attorneys for Judge Robert M.

Martin
Kendrick Webb
Email: kwebb@webbeley.com
Jamie H. Kidd
Email: jkidd@webbeley.com
Fred L. Clements
Email:fclements@webbeley.com
Webb & Eley, PC
P.O. Box 240909
Montgomery, AL 36124-0909
Phone: (334) 262-1850
Fax: (334) 262-1889

Email: mstaver@LC.org
Email: court@LC.org

Horatio G. Mihet

Fla. Bar No. 0026581

Email: hmihet@LC.org

Roger K. Gannam

Email: rgannam@LC.org
LIBERTY COUNSEL

P.O. BOX 540774

Orlando, FL 32854-0774
Phone:(800)671-1776
Fax:(407)875-0770
A. Eric Johnston
Email:eric@aericjohnston.com
Suite 107
1200 Corporate Drive
Birmingham, AL 35242
Phone:(205)408-8893
Fax:(205)408-8894
Samuel J. McLure
Email:sam@theadoptionfirm.com
The Adoption Law Firm
PO Box 2396
Montgomery, AL 36102
Phone:(334)612-3406
Attorney for Judge Tommy
Ragland
George W. Royer, Jr.
(Roy001)
Brad A. Chynoweth (CHY001)
Lanier Ford Shaver & Payne,
P.C.
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Attorneys for Judge Alan King

Jeffrey Sewell
Email:jeff@sewellandsewell.com
French McMillan
Email:french@sewellmcmillan.com
Sewell, Sewell, McMillan, LLC
1841 2nd Ave., Ste. 214
Jasper, AL 35501-5359
Phone: (205-544-2350
Fax: (205-544-2345
Hon. Luther Strange
Office of the Attorney General
Email: smclure@ago.state.al.us
P.O. Box 300152
Montgomery, AL 36130-0152
Phone: (334) 242-7447

P.O. Box 2087

2101 West Clinton Avenue,
Suite 102 (35805)
Huntsville, AL 35804
Phone: (256) 535-1100
Fax: (256) 533-9322
Email: gwr@lfsp.com
Email: bac@Lanierford.com

s/Robert D. Segall
Of Counsel

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