E-Filed

03/05/2015 @ 07:53:16 PM
Honorable Julia Jordan Weller
Clerk Of The Court
IN T H E S U P R E M E C O U R T O F A L A B A M A

Ex parte S T A T E ex rel. A L A B A M A
P O L I C Y I N S T I T U T E and A L A B A M A
CITIZENS A C T I O N P R O G R A M ,
Petitioner,
v.
C A S E N O . 1140460
A L A N L . K I N G , in his official capacity
as Judge of Probate for Jefferson County,
Alabama, R O B E R T M . M A R T I N , in his
official capacity as Judge of Probate for
Madison County, Alabama, S T E V E N
L . R E E D , in his official capacity as
Judge of Probate for Montgomery
County, Alabama, and J U D G E D O E S
##1-63, each in His or her official capacity
as an Alabama Judge of Probate,
Respondents.

C O R R E C T E D B R I E F IN SUPPORT O F M O T I O N
TO E X T E N D TIME FOR RESPONSE

Judge Davis needs additional time to respond. Judge Davis has asked the Alabama
Judicial Inquiry Commission for guidance. Further, Judge Davis is asking Judge Granade for a
stay, which i f granted, means no more plaintiffs w i l l be added to the federal litigation. Perhaps
the Alabama Judicial Inquiry Commission or Judge Granade w i l l act on Judge Davis' requests
within the requested ten (10) day extension.
This Honorable Court issued the Mandamus Order late in the evening of March 3, 2015.
The Mandamus Order, including the dissenting opinion, is 148 pages long. Judge Davis is the
only probate judge in the State of Alabama ordered by a federal district court judge to issue
same-sex marriage licenses to specific plaintiffs. Further, in this same case, the federal judge has
permitted amendment of the pleadings to add additional same-sex couples seeking a marriage
license from the M o b i l e County Probate Court. The federal district court ordered that Judge
Davis issue to these additional same-sex couples marriage licenses two days after they had
become parties to the federal court action.
If Judge Davis' denies a same-sex couple a marriage license, then that couple can do as

the three additional couples did in James N . Strawser v. Luther Strange, C i v i l Action No.: 140424-CG-C and seek an order from the federal court directing Judge Davis to issue the marriage
license. O n February 12, 2015, the federal court did just that. A l l four same-sex couples who
brought suit are now married.
Judge Davis is caught between Judge Granade's orders to issue same-sex marriage
licenses and this Court's Writ of Mandamus that Alabama probate judges shall not issue samesex marriage licenses. These conflicting orders of the federal district court and this Honorable
Court impose an impossible task upon Judge Davis: fulfilling opposite orders which are issued to
Judge Davis by the federal court and the Alabama Supreme Court.
Further, the lawyers who represent the same-sex couples before Judge Granade have also
filed before Judge Granade a related case, in which they have sued Judge Davis both in his
official capacity and personally. In this same-sex couple adoption case, the complaint alleges
claims based on Section 1983. The complaint alleges a federal civil rights violation due to Judge
Davis having entered an Interlocutory Order stating "the Court w i l l not issue a final adoption
order until a final ruling is issued in the United States Supreme Court on the Marriage A c t cases
before it." The federal judge indicated in her February 10, 2015 Order in Strawser that her
orders in Cari D. Searcy v. Luther Strange, Civil Action No.: 14-0208, C G - N , ("Searcy I")
must be read in conjunction with the Order in Strawser to be fully understood. In Cari D .
Searcy v. M o b i l e County Probate Judge D o n Davis. C i v i l Action No.: 15-00104-C ("Searcy 11"),
other plaintiffs gave notice of their intent to seek money damages for Section 1983 claims
against Judge Davis in his official capacity and personally for violating the rights Judge Granade
said each possessed.
Judge Davis has made clear that he w i l l follow the rule of law when directed by the
courts which have authority over this issue. Judge Davis has not sought out this dispute. Judge
Davis has taken extraordinary steps to seek guidance from this Honorable Court. Specifically,
Judge Davis filed the action which was in the nature of an in rem action and the amended in rem
action filed directly with this Honorable Court regarding the continuing effectiveness, validity,
and authority o f the Administrative Order of the Chief Justice of the Supreme Court of Alabama
dated the 8th of February 2015, Case N o . 1140456. This Court ruled that this action was in the
nature of a Request for Advisory Opinion which this Court did not have jurisdiction to grant.
Future cases could result in money damage awards arising out of Judge Granade's
orders. Judge Davis could face personal liability. For claims against Judge Davis in his official
capacity. M o b i l e County's taxpayers are at risk. This Court should consider this risk in the
context of an active federal case against Judge Davis only, among all other probate judges, which
has already, and probably w i l l further, result in any same-sex couple who seeks a marriage
license from Probate Court in M o b i l e County obtaining it as quickly as two days after Judge
Davis refuses to grant the license.
Whether Judge Davis is bound by a federal court order regarding issuing marriage
licenses to others than the plaintiffs in Strawser can be answered in two different ways. First, its
narrowest sense. Judge Davis is bound presently by only one existing federal court case which
involves multiple orders which are very broad, applying to all same-sex couples as long as the
2

Strawser case is before Judge Granade. Thus, Strawser could require Judge Davis not only to
issue the four marriage licenses to the Plaintiffs in that case but also to all similarly situated
same-sex couples who also apply for a marriage license in the future.
Second, this Court should also consider this issue in a broader context. A s the above facts
make clear, i f Judge Davis refuses to issue a marriage license to a same-sex couple, the federal
court can order issuance of the license after the cases are filed in federal court. Thus, Judge
Davis must at that time issue the marriage license to the same-sex couple. Further, due to the
breadth of Judge Granade's orders in Strawser and Searcy I, a plaintiff could argue that Judge
Granade's orders protect not merely the plaintiffs in Strawser but all other similarly situated
same-sex couples who come before Judge Granade later in Strawser so long as Judge Granade
has jurisdiction over the case. Further, i f Judge Davis refuses to issue a marriage license to a
similarly situated same-sex couple, Judge Granade could find that Judge Davis has willfully
violated the federal court's orders and hold him in contempt, order a monetary penalty, and/or
award monetary damages or attorneys' fees to the new couple.
This Court has perhaps recognized that Judge Davis is in such a unique position that he is
not now under this Mandamus Order of this Honorable Court:
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.
Alternatively, perhaps Judge Davis is subject to the Mandamus Order presently and i f the broad
interpretation of Judge Granade's Strawser Order is correct, then Judge Davis presently has two
conflicting orders against him, one to issue only opposite sex marriage licenses and the other to
issue both opposite sex and same-sex marriage licenses. Obviously, Judge Davis cannot abide
by both orders due to this conflict. Thus, Judge Davis has ordered that his office w i l l not issue
any more marriage licenses to anyone until this conflict is resolved.
In conclusion, the complicated and serious consequences to Judge Davis, the citizens of
M o b i l e County and families throughout the state are too great to respond adequately in less than
48 hours. Judge Davis needs guidance from the Alabama Judicial Inquiry Commission and/or a
stay from Judge Granade to be able to properly answer this Honorable Court's question.

RESPECTFULLY

SUBMITTED,

/S/LEE L. H A L E
L E E L. H A L E
lee.hale@comcast.net
501 C H U R C H S T R E E T
M O B I L E , A L 36602
(251)433-3671

/ S / M A R K S. B O A R D M A N
mboardman@boardm ancarr.com
TERESA B. PETELOS
tpetelos@boardmancarr.com
C L A Y R. C A R R
ccarr@boardmancarr. com
B O A R D M A N , CARR, BENNETT,
HILL & G A M B L E , PC
400 B O A R D M A N D R I V E
C H E L S E A , A L 35043
(205)678-8000

WATKINS

/S/J. M I C H A E L D R U H A N , JR.
mike@satterwhitelaw.com
H A R R Y V. SATTERWHITE
harry@satterwhitelaw.com
SATTERWHITE, D R U H A N , G A I L L A R D &
TYLER, L L C
1325 D A U P H I N S T R E E T
M O B I L E , A L 36604
(251)432-8120

CERTIFICATE OF SERVICE
I hereby certify that on this the 5th day of M a r c h 2015, I electronically filed the foregoing
with the Clerk of the Court using the A C I S system which w i l l send notification to the following:
Luther Strange
Attorney General, State o f Alabama
501 Washington Avenue
Montgomery, A L 36130-0152
Phone: (334) 242-7447
smclure@ago.state.al.us
Matthew D . Staver
Horatio G . Mihet
Roger K . Graham
LIBERTY COUNSEL
Post Office B o x 540774
Orlando, F L 32854
Phone: (800) 671-1776
mstaver@LC.org
court@LC.org
hmihet@LC.org
rgannam@LC.org
Eric Johnston
Suite 107
1200 Corporate Drive
Birmingham, A L 35242
Phone: (205) 408-8893
eric@aericjohnston.com
Samuel J. M c L u r e
The Adoption L a w Firm
Post Office B o x 2396
Montgomery, A L 36102
Phone: (334) 612-3406
sam@theadaptionfirm.com
Jeffrey M . Sewell
French A . M c M i l l a n , L L C
1841 Second Avenue N . , Suite 214
Jasper, A L 35501
Phone: (205) 544-2350
jeff@sewellmcmillan.com
French@sewellmcmillan.com

G. Douglas Jones
Greg Hawley
Chris Nicholson
Jones & Hawley, P C
2001 Park PI Ste. 830
Birmingham, A L 35203
Phone: (205)490-2290
ghawley(a!j oneshawley.com
cni chol son(a) i oneshawl ey. com
dj ones(a),\ oneshawley. com
Kendrick E . Webb
Jamie Helen K i d d
Fred L . Clements
Webb & Eley, P . C .
Post Office B o x 240909
Montgomery, A L 36124
Phone: (334)262-1850
kwebb (g), webb eley. com
j ki dd(a! webb el ey. com
fclements@webbeley.com
Robert D . Segall
Copeland, Franco, Screws & G i l l , P. A .
P.O. B o x 347
Montgomery, A L 36101
Phone: (334)420-2956
segall@copelandfranco.com
Thomas T. Gallion
Constance C. Walker
Haskell Slaughter & Gallion, L L C
8 Commerce Street, Suite 1200
Montgomery, A L 36104
Phone: (334)265-8573
ttg@hsg-law.com
ccw@hsg-law.com
Tyrone C . Means
H . Lewis Gillis
Kristen J. Gillis
M E A N S GILLIS L A W , L L C
Post Office B o x 5058
60 Commerce Street, Suite 200
Montgomery, A L 36103
Phone: (334)270-1033
6

tcmeans@meansgillislaw.com
hlgillis@meansgillislaw.com
kj gilli s@meansgilli slaw, com
M a r k Engl chart
Englehart L a w Offices
9457 Alsbury Place
Montgomery, A L 36117
Phone: (334)782-5258
j menglehart@gmail. com
George W . Royer, Jr.
Brad A . Chynoweth
Lanier, Ford Chaver & Payne, P . C .
P.O. B o x 2087
2101 West Chnton Ave., Suite 102
Huntsville, A L 35804
Phone: (256) 535-1100
gre@lfsp.com
b ac@Lani erford. com
J. Richard Cohen
David Dinielli
Southern Poverty L a w Center
400 Washington Avenue
Montgomery, A L 36104
Phone: (334)956-8200
Richard.cohen@splcenter.org
David.dinielli@splcenter.org
Randall Marshall
A C L U o f Alabama Foundation
P.O. B o x 6179
Montgomery, A L 36106
rmarshall@aclualabama.org
L . Dean Johnson
L . Dean Johnson, P C
4030 Balmoral Dr. S W
Huntsville, A L 35801
Phone: (256) 880-5817
dean@ldjpc.com
J. Stanton Glasscox
Glasscox L a w firm, L L C
Post Office B o x 2646

Birmingham, Alabama 35201

stan@glasscoxlaw.com
Samuel H . Heldman
The Gardner Firm, P C
2805 3 1 N W
Washington, D C 20008
sam@heldman.net
st

/s/ Lee L . Hale

OF C O U N S E L