1140460 petitioner reply
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IN THE SUPREME COURT OF ALABAMA
Ex parte STATE ex rel. ALABAMAPOLICY INSTITUTE and ALABAMACITIZENS ACTION PROGRAM,
Petitioner,v.
ALAN L. KING, in his officialcapacity as Judge of Probate forJefferson County, Alabama,ROBERT M. MARTIN, in his officialcapacity as Judge of Probate forChilton County, Alabama,
TOMMY RAGLAND, in his officialcapacity as Judge of Probate forMadison County, Alabama,STEVEN L. REED, in his officialcapacity as Judge of Probate forMontgomery County, Alabama, andJUDGE DOES ##1-63, each in his orher official capacity as anAlabama Judge of Probate,
Respondents._________________________________/
CASE NO. 1140460
REPLY BRIEF OF PETITIONER
Mathew D. Staver † Fla. Bar No. [email protected]@LC.orgHoratio G. Mihet † Fla. Bar No. [email protected] K. Gannam † Fla. Bar No. 240450
[email protected] IBERTY C OUNSEL P.O. BOX 540774Orlando, FL 32854-0774(800)671-1776(407)875-0770 FAX† Admitted pro hac vice
A. Eric Johnston (ASB-2574-H38A) [email protected] 1071200 Corporate DriveBirmingham, AL 35242(205)408-8893(205)408-8894 FAX
Samuel J. McLure (MCL-056)[email protected] Adoption Law FirmPO Box 2396Montgomery, AL 36102(334)612-3406
Attorneys for Petitioner
E-Filed02/23/2015 @ 10:41:34 AM
Honorable Julia Jordan WellerClerk Of The Court
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TABLE OF CONTENTS
TABLE OF CONTENTS ......................................... i
TABLE OF AUTHORITIES .................................... iii
PRELIMINARY STATEMENT ................................... vii
INTRODUCTION AND SUMMARY OF ARGUMENT ...................... 1
ARGUMENT .................................................. 3
I. RELATORS HAVE STANDING UNDER THE PUBLIC INTERESTSTANDING RULE WHICH IS WELL-SETTLED IN ALABAMA ANDTHROUGHOUT THE UNITED STATES. ........................ 3
II. RELATORS PROPERLY BRING THIS ACTION IN THE NAME OFTHE STATE TO ENFORCE A DUTY OWING TO THE PUBLIC. .... 17
A. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is a duty owing to the public. .............. 17
B. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is not a duty owing to government. .......... 22
III. THIS COURT’S JURISDICTION IS PROPERLY INVOKED UNDERCLEAR PRECEDENT. .................................... 28
A. This Court has original jurisdiction over amandamus petition directed to a judge of probateto command performance of a ministerial duty. .... 28
B. This Court may exercise jurisdiction to issue asupervisory writ to any inferior court whennecessary to afford full relief and do completejustice. ......................................... 31
IV. RELATORS ARE ENTITLED TO MANDAMUS RELIEF. ........... 38
A. The Petition is procedurally complete. ........... 38
B. Respondents’ arguments for dismissal of thePetition are based on fallacies . ................. 41
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CONCLUSION ............................................... 48
CERTIFICATE OF SERVICE ................................... 49
ATTACHMENTS
Verification of Katherine Robertson ............. Exhibit A
Verification of Joseph Godfrey .................. Exhibit B
Verification of Roger K. Gannam ................. Exhibit C
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TABLE OF AUTHORITIES
CASES
Alabama Alcoholic Beverage Control Bd. v. Henri – DuvalWinery, L.L.C. , 890 So. 2d 70 (Ala. 2003) ... 4,5,6,7,14,15
Anzalone v. Admin. Office of Trial Court ,932 N.E.2d 774 (Mass. 2010) ............................ 10
Ashley v. State ,19 So. 917 (1896) ...................................... 30
Bryce v. Burke ,55 So. 635 (Ala. 1911) ............................... 4,14
Conde-Vidal v. Garcia-Padilla ,No. 14-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014) .... 44
DeBoer v. Snyder ,772 F.3d 388 (6th Cir. 2014) ........................ 19,44
Denson v. Bd. of Trustees of Univ. of Ala. ,23 So. 2d 714 (Ala. 1945) .............................. 37
Ex parte Ackles ,
840 So. 2d 145 (Ala. 2002) ............................. 39 Ex parte Alabama Textile Products Corp. ,
7 So. 2d 303 (Ala. 1942) ................ 32,33,34,35,36,37
Ex parte Barger, 11 So. 2d 359 (Ala. 1942) .............................. 37
Ex parte Collins ,84 So. 3d 48 (Ala. 2010) ............................ 38,39
Ex parte Jim Walter Resources, Inc. ,91 So. 3d 50 (Ala. 2012) ...................... 28,29,30,31
Ex parte Johnson ,485 So. 2d 1098 (Ala. 1986) ............................ 38
Ex parte King ,50 So. 3d 1056 (Ala. 2010) ........................... 6,14
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Ex parte Tubbs ,585 So. 2d 1301 (Ala. 1991) ............................ 37
Florida Indus. Com'n v. State ex rel. Orange State Oil Co. ,21 So. 2d 599 (Fla. 1945) .............................. 11
Gordon v. State ex rel. Cole ,185 So. 889 (Ala. 1939) ................................ 39
Gray v. State ex rel. Garrison ,164 So. 293 (Ala. 1935) ................................ 20
Hector F. v. El Centro Elementary Sch. Dist. ,173 Cal. Rptr. 3d 413 (Cal. Ct. App. 2014) ........... 9,10
Homan v. State ex rel. Smith ,89 So. 2d 184 (Ala. 1956) ......................... 4,20,21
Jackson Sec. & Inv. Co. v. State ,2 So. 2d 760 (Ala. 1941) ............................... 16
Jones v. Black, 48 Ala. 540 (1872) .................................... 5,6
Kendrick v. State ex rel. Shoemaker ,54 So. 2d 442 (Ala. 1951) ............. 4,12,13,14,15,20,27
Lockhart v. Fretwell ,506 U.S. 364 (1993) .................................... 46
Lujan v. Defenders of Wildlife ,504 U.S. 555 (1992) ..................................... 6
Marone v. Nassau Cnty. ,967 N.Y.S.2d 583 (Sup. Ct. 2013) ................... 8,9,16
Marshall County Bd. Educ. v. State ex rel. Williams ,42 So. 2d 24 (Ala. 1949) ............................... 21
Maynard v. Hill ,125 U.S. 190 (1888) .................................... 18
Morrison v. Morris ,141 So. 2d 169 (Ala. 1962) ..................... 4,22,25,26
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Muhammad v. Ford, 986 So.2d 1158 (Ala. 2007) .............................. 6
ProgressOhio.org, Inc. v. JobsOhio ,973 N.E.2d 307 (Ohio Ct. App. 2012) .................... 10
Protect MI Constitution v. Sec'y of State ,824 N.W.2d 299 (Mich. Ct. App. 2012) ................... 10
Robicheaux v. Caldwell ,2 F. Supp. 3d 910 (E.D. La. 2014) ...................... 44
Rodgers v. Meredith ,146 So. 2d 308 (Ala. 1962) .................... 11,12,14,20
Rogers v. Hechler ,348 S.E.2d 299 (W.V. 1989) ............................. 10
Save the Plastic Bag Coal. v. City of Manhattan Beach ,254 P.3d 1005 (Cal. 2011) .............................. 16
Skinner v. State of Okla. ex rel. Williamson ,316 U.S. 535 (1942) .................................... 18
Southern LNG, Inc. v. MacGinnitie ,755 S.E.2d 683 (Ga. 2014) .............................. 10
State ex rel. Chilton County v. Butler ,142 So. 531 (Ala. 1932) .................... 22,23,24,25,26
State ex rel. Cittadine v. Indiana Dep't of Transp. ,790 N.E.2d 978, 983 (Ind. 2003) ....................... 7,8
State ex rel. Clark v. Johnson ,904 P.2d 11 (N.M. 1995) ................................ 10
State ex rel. Foshee v. Butler ,142 So. 533 (Ala. 1932) ............................. 24,25
State ex rel. Kansas City Power & Light Co. v. McBeth ,322 S.W.3d 525 (Mo. 2010) .............................. 10
State ex rel. Ohio Motorists Ass'n v. Masten ,456 N.E.2d 567 (Ohio Ct. App. 1982) .................... 16
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Stumes v. Bloomberg ,551 N.W.2d 590 (S.D. 1996) ............................. 10
Town of Cedar Bluff v. Citizens Caring for Children , 904So. 2d 1253 (Ala. 2004) ............................... 5,6
Wells v. Purcell ,592 S.W.2d 100 (Ark. 1979) .......................... 10,11
CONSTITUTIONAL PROVISIONS
Art. I, § 36.03, Ala. Const. 1901 .................. 17,20,35
Art. VI, § 140, Ala. Const. 1901 ......................... 32
STATUTES
§ 6-6-640, Ala. Code 1975 ................................ 38
§ 10A-1-2.11, Ala. Code 1975 ............................. 16
§ 12-2-7, Ala. Code 1975 ................................. 32
§ 12-22-21, Ala. Code 1975 ............................ 29,30
§ 30-1-19, Ala. Code 1975 ............................. 17,20
OCGA § 9 – 6 – 24 ............................................ 10RULES
Ala. R. App. P. 21 ....................................... 38
Ala. R. Evid. 201 ........................................ 40
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PRELIMINARY STATEMENT
The Emergency Petition for Writ of Mandamus commencing
this case, and in support of which this Reply Brief is filed,
will be referred to herein as the “Petition” . Capitalized
terms used but not otherwise defined herein will have the
same meanings ascribed to them in the Petition.
Respondents K ing and Ragland’s Joint Answer and Brief in
Support in Response to Petition for Writ of Mandamus will be
referred to herein as the “King - Ragland Answer”.
The Answer and Brief of Respondent Robert M. Martin will
be referred to herein as the “Martin Answer” .
The Answer and Brief of Respondent Steven L. Reed will
be referred to herein as the “Reed Answer”.
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INTRODUCTION AND SUMMARY OF ARGUMENT
This Petition has generated an impressive pile of paper,
both in this Court and in the United States District Court
for the Southern District of Alabama. 1 Nevertheless, the
basic premise of the Petition remains straightforward and
essentially undisputed: until a court of competent
jurisdiction purports to require otherwise, Alabama probate
judges have no “discretion” to violate the law of Alabama,
the Constitution of Alabama, and the clearly expressed will
of the People of Alabama.
Respondents are not parties to the federal court case
that purported to invalidate Alabama’s marriage laws and
Constitution, and they do not dispute that the federal court
has no jurisdiction over them. 2 As such, Respondents have no
1 After being served with this Petition, Respondent Judge Kingfiled an “Emergency Motion to Intervene” in the federallitigation that gives rise to this controversy, and askedfederal judge Callie Granade to require the dismissal of theinstant Petition in this Court. Strawser v. Strange , Case No.14-cv-00424 (S.D. Ala., dkts. 58, 59). That court denied hisrequest, as well as a similar request by plaintiffs in thatcase. Id . at dkts. 66, 67).
2 Since the filing of this Petition, one Alabama probatejudge, Don Davis, was made a party to the federal Strawser litigation, and subjected to that court’s orders. Judge Davisis not a respondent to this Petition. The Petition seeks
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more “discretion” to follow the non -binding hypotheses of
that court any more than they could follow the courts of
Hawaii, Massachusetts or Timbuktu. If Respondents are
inclined to follow the recommendations of federal courts in
cases to which they are not parties, they could follow those
federal courts – both trial and appellate – that have upheld
the constitutionality of natural, man-woman marriage,
consistent with the Alabama Constitution and law.
Respondents, however, do not want to follow those
decisions. They also do not want the Court to reach the merits
of this Petition, and thus they raise myriad procedural
objections to avoid this Court’s scrutiny of th eir unlawful
conduct. None have merit.
This Court has repeatedly recognized the standing of
Alabama citizens to seek via mandamus the enforcement of an
official’s public duties on matters of public concern. This
is the well-settled law not only in Alabama but in numerous
other jurisdictions. Tellingly, Respondents ignore this large
body of law altogether, and instead devote the bulk of their
relief against all other probate judges who are not subjectto any order from any court of competent jurisdiction.
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responses to a different set of standing requirements which
has no application in this context.
Moreover, only three short years ago this Court
unanimously held that it has original jurisdiction over
extraordinary writ applications to require probate judges to
perform their ministerial duties. Respondents either ignore
this precedent or implicitly ask this Court to overrule it,
for no good reason.
At the end of the day, there are no procedural roadblocks
for this Court to reach the merits of this Petition, to grant
the requested relief, and to return the rule of law to
Alabama. Relators respectfully request the Court to issue the
writ.
ARGUMENT
I. RELATORS HAVE STANDING UNDER THE PUBLIC INTEREST STANDINGRULE WHICH IS WELL-SETTLED IN ALABAMA AND THROUGHOUT THEUNITED STATES.
The rule of public interest standing, sometimes referred
to as the public interest exception, is well-settled in
Alabama and throughout the United States. Under this standingprinciple, Relators have standing to bring this mandamus
petition, in the name of the State, to compel Respondents to
perform their public duties:
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It is now the settled rule in Alabama thata mandamus proceeding to compel a publicofficer to perform a legal duty in whichthe public has an interest, asdistinguished from an official dutyaffecting a private interest merely, isproperly brought in the name of the Stateon the relation of one or more personsinterested in the performance of such dutyto the public . . . .
Kendrick v. State ex rel. Shoemaker , 54 So. 2d 442, 447 (Ala.
1951); see also Morrison v. Morris , 141 So. 2d 169, 170 (Ala.
1962) (same);Homan v. State ex rel. Smith
, 89 So. 2d 184,186 (Ala. 1956) (same). Indeed, this has been well-settled in
Alabama for over 100 years: “ There is no doubt that, where
the writ is sued out to require the performance of a definite
duty to the public, the proceeding must proceed in the name
of the state as plaintiff.” Bryce v. Burke , 55 So. 635, 638
(Ala. 1911) (emphasis added).
Though Respondents walk arm-in-arm down the primrose path
of injury in fact (King-Ragland Ans. at 7-14; Martin Ans. at
8-16; Reed Ans. at 4-19.), under the general standing rule,
this Court must not follow their lead. As an initial matter,
this Court did not fundamentally change the law of standing
in Alabama in 2003 when it adopted the federal formulation of
the general standing rule focusing on injury. See Alabama
Alcoholic Beverage Control Bd. v. Henri – Duval Winery, L.L.C. ,
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890 So. 2d 70, 74 (Ala. 2003). Rather, the Court “effectively
restated the standard . . . using language adopted from the
Supreme Court of the United States.” Town of Cedar Bluff v.
Citizens Caring for Children , 904 So. 2d 1253, 1256-57 (Ala.
2004) (emphasis added). The Cedar Bluff Court explained the
development as follows:
In Jones v. Black, 48 Ala. 540 (1872), thisCourt first articulated a test fordetermining whether a party has the
necessary standing to challenge theconstitutionality of an act of theLegislature. We stated then:
“A party who seeks to have an act of thelegislature declared unconstitutional,must not only show that he is, or willbe injured by it, but he must also showhow and in what respect he is or will beinjured and prejudiced by it. Injury will not be presumed; it must be shown.”
48 Ala. at 543. In Alabama AlcoholicBeverage Control Board v. Henri – DuvalWinery, LLC, 890 So.2d 70, 74 (Ala. 2003),a party challenged the constitutionalityof Alabama's Native Farm Winery Act, § 28 –6 – 1 et seq., Ala. Code 1975. In that case,this Court effectively restated thestandard articulated in Jones, usinglanguage adopted from the Supreme Court of
the United States :“A party establ ishes standing to bringa challenge [on constitutional grounds]when it demonstrates the existence of(1) an actual, concrete and
particularized ‘ injury in fact’ —‘aninvasion of a legally protected
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interest’; (2) a ‘causal connectionbetween the injury and the conductcomplained of’; and (3) a likelihoodthat the injury will be ‘redressed by afavorable decision.’ Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 – 61(1992).”
904 So. 2d at 1256-57 (second emphasis in original).
By comparing this Court’s own standing formulation from
1872’s Jones v. Black (focusing on injury), with the adopted,
three-pronged formulation from the federal case Lujan v.
Defenders of Wildlife (focusing on injury), the Cedar Bluff
Court showed that this was no seismic shift in Alabama
standing law. 3 The Court simply used the federal formulation
to state its own entrenched standing law more precisely. See
Ex parte King , 50 So. 3d 1056, 1059 (Ala. 2010) (“[I]n 2003
this Court adopted the . . . more precise[] rule regarding
standing based upon the test used by the Supreme Court of the
United States . . . .”); Muhammad v. Ford, 986 So.2d 1158,
1162 (Ala. 2007) (“In [ Henri – Duval ] this Court adopted a more
precise rule regarding standing articulated by the United
States Supreme Court . . . .”).
3 Unlike the instant case, the Cedar Bluff standinganalysis was in the context of a declaratory challenge to theconstitutionality of a state statute. 904 So. 2d at 1255.
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What this Court did not do in Henri-Duval in 2003, and
has not done since , is abolish the equally entrenched standing
rule applicable in mandamus cases seeking to compel
performance of a public duty. To be sure, the rule is well
known in the modern law of other states, variously referred
to as the “public standing exception”, “public standing
doctrine”, “public interest standing”, etc. For example, the
Indiana Supreme Court in 2003 concluded, after surveying the
laws of numerous accordant states, “T he public standing
doctrine , which applies in cases where public rather than
private rights are at issue and in cases which involve the
enforcement of a public rather than a private right, continues
to be a viable exception to the general standing requirem ent.”
State ex rel. Cittadine v. Indiana Dep't of Transp. , 790
N.E.2d 978, 983 (Ind. 2003) (emphasis added). In affirming
the viability of the rule, the court explained:
Under our general rule of standing, onlythose persons who have a personal stake inthe outcome of the litigation and who showthat they have suffered or were in
immediate danger of suffering a directinjury as a result of the complained-ofconduct will be found to have standing.Absent this showing, complainants may notinvoke the jurisdiction of the court. Itis generally insufficient that a plaintiffmerely has a general interest common to allmembers of the public.
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[Relator] seeks to avoid this general ruleby invoking the public standing exception .He does not contend that he has suffered aspecific injury, but argues that, becausethe object of the mandate is to procurethe enforcement of a public duty, he hasstanding under Indiana's public standingdoctrine. As we recently noted in Schloss:
Indiana cases recognize certainsituations in which public rather thanprivate rights are at issue and holdthat the usual standards forestablishing standing need not be met.This Court held in those cases that when
a case involves enforcement of a publicrather than a private right theplaintiff need not have a specialinterest in the matter nor be a publicofficial.
Specifically, the public standing doctrine eliminates the requirement that therelator have an interest in the outcome ofthe litigation different from that of thegeneral public.
The public standing doctrine has beenrecognized in Indiana case law for morethan one hundred and fifty years.
Id. at 979-80 (second emphasis in original) (citations
omitted).
More recently, the historical yet still vital “public
interest standing” was invok ed in a 2013 New York mandamus
proceeding:
However, in matters of great publicinterest, a citizen may maintain a mandamus proceeding to compel a public officer to
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do his or her duty. The office which thecitizen performs is merely one ofinstituting a proceeding for the generalbenefit, the only interest necessary isthat of the people at large. One who is acitizen, resident and taxpayer hasstanding to bring an Article 78 proceedingfor the performance by officials of theirmandatory duties, even without a personalgrievance or a personal interest in theoutcome. The public interest standing of acitizen has been extended to corporationsas well as other organizations.
In fact, as far back as the Nineteenth
Century, the Court of Appeals held, thewrit of mandamus may, in a proper case,and in the absence of an adequate remedyby action, issue . . . on the relation ofone, who, in common with all othercitizens, is interested in having some actdone, of a general public nature, devolvingas a duty upon a public officer or body,who refuse to perform it.
Marone v. Nassau Cnty. , 967 N.Y.S.2d 583, 589 (Sup. Ct. 2013)
(emphasis added) (internal quotations and citations omitted).
Still more recently, the California Court of Appeals
affirmed the vitality of the “public interest exception” in
2014:
It is true that ordinarily the writ of
mandate will be issued only to persons whoare beneficially interested. Yet, in[1945, the California Supreme Court]recognized an exception to the general rule where the question is one of public rightand the object of the mandamus is toprocure the enforcement of a public duty,the relator need not show that he has any
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legal or special interest in the result,since it is sufficient that he isinterested as a citizen in having the lawsexecuted and the duty in question enforced.The exception promotes the policy of
guaranteeing citizens the opportunity toensure that no governmental body impairsor defeats the purpose of legislationestablishing a public right. It has oftenbeen invoked by California courts.
Hector F. v. El Centro Elementary Sch. Dist. , 173 Cal. Rptr.
3d 413, 418 (Cal. Ct. App. 2014) (emphasis added) (internal
quotations and citations omitted). The same public standingrule (or doctrine, or exception) is found throughout the
nation. 4
4 See, e.g. , Southern LNG, Inc. v. MacGinnitie , 755 S.E.2d683, 687 (Ga. 2014) (“‘Where the question is one of public
right and the object is to procure the enforcement of a publicduty, no legal or special interest need be shown [to petitionfor mandamus], but it shall be sufficient that a plaintiff isinterested in having the laws executed and the duty inquestion enforced.’” (quoting OCGA § 9– 6 – 24)); Protect MIConstitution v. Sec'y of State , 824 N.W.2d 299, 306 (Mich.Ct. App. 2012), rev'd on other grounds , 819 N.W.2d 428 (Mich.2012); ProgressOhio.org, Inc. v. JobsOhio , 973 N.E.2d 307,313 (Ohio Ct. App. 2012); State ex rel. Kansas City Power &Light Co. v. McBeth , 322 S.W.3d 525, 531 (Mo. 2010) (“[W]her e
the duty sought to be enforced is a simple, definiteministerial duty imposed by law, the threshold for standingis extremely low.”); Anzalone v. Admin. Office of Trial Court ,932 N.E.2d 774, 781 (Mass. 2010); Stumes v. Bloomberg , 551N.W.2d 590, 592 (S.D. 1996); State ex rel. Clark v. Johnson ,904 P.2d 11, 17-18 (N.M. 1995); Rogers v. Hechler , 348 S.E.2d299 (W.V. 1989); Wells v. Purcell , 592 S.W.2d 100, 103 (Ark.
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Whether labeled a rule, a doctrine, or an exception,
there is no essential difference between Alabama’s public
standing rule, as articulated in Kendrick and the other cases
cited above, and the public standing rule widely recognized
throughout the United States. All respect the injury in fact
requirement for general standing, while equally respecting
the alternative rule (or exception) for public interest
mandamus cases. Two Alabama cases in particular illustrate
this fidelity.
First, in Rodgers v. Meredith , 146 So. 2d 308 (Ala.
1962), a clerk of the circuit court petitioned, in his own
name, for a writ of mandamus to compel the county sheriff to
perform his statutory duty to file written reports with the
clerk regarding the prisoners entering and leaving the county
1979) ("The rule is well settled, that when . . . theproceedings are for the enforcement of a duty affecting nota private right, but a public one, common to the wholecommunity, it is not necessary that the relator should havea special interest in the matter."); Florida Indus. Com'n v.State ex rel. Orange State Oil Co. , 21 So. 2d 599, 600-01(Fla. 1945) (“We also said in that case that where thequestion is one of public right and the object of the mandamusis to procure the enforcement of a public duty, the relatorneed not show that he has any legal or special interest inthe result, it being sufficient that he is interested as acitizen in having the law executed and the duty in questionenforced.”).
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jail. The Court held that compliance with the statute was
mandatory for the sheriff. Id. at 314. But the Court also
held that the circuit clerk did not have standing to seek
mandamus to compel the sheriff’s performance because the
statute conferred no private right on the clerk. Id. In so
holding, the Court distinguished the private standing on
which the clerk relied in error, from the public standing on
which the clerk could have relied:
We hold that the duty here placed on thesheriff by [the reporting statute] is alegal duty in which the public has aninterest, as distinguished from anofficial duty affecting a private interestmerely. Under the settled rule, petitionfor mandamus to compel a public officer toperform such duty is properly brought inthe name of the state on the relation ofone or more persons interested in theperformance of that duty. The instantpetition was not so brought.
Id. at 314- 15. Thus, whereas the circuit clerk’s individual
injury was insufficient for the clerk to bring the action
privately, the Court held the public’s interest sufficient
for the clerk to refile the action as relator in the name of
the state. Id. at 315.
Second, in Kendrick , a citizen relator, in the name of
the state, sued his county commission to force them to provide
voting machines for elections in compliance with a state
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statute. The statute required the county to provide voting
machines for all elections in the county, but gave the
commission discretion not to provide machines in any precinct
having less than 100 registered voters. Id. at 447. The
respondents challenged the relator’s petition on the basis
that he failed to show the requested relief would redress any
injury particular to him, because he failed to show he voted
in a precinct entitled to provision of voting machines. Id.
In rejecting the respondents’ challenge to the relator’s
standing, the Court cited the public standing rule:
It is now the settled rule in Alabama thata mandamus proceeding to compel a publicofficer to perform a legal duty in whichthe public has an interest, asdistinguished from an official dutyaffecting a private interest merely, isproperly brought in the name of the Stateon the relation of one or more personsinterested in the performance of such dutyto the public . . . .
Id. Applying the public standing rule, the Court concluded:
It is clear that the act which petitionerseeks to have performed does not concernthe sovereign rights of the State and is
one in which the public, all the people ofJefferson County, have an interest.Petitioner’s right to have the act
performed is not dependent upon the factthat he may or may not vote in a voting
place where the governing body is requiredto install a voting machine .
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Id. (emphasis added).
Thus, whereas in Rodgers the petitioner lacked standing
because he had no particularized injury and failed to invoke
public standing, in Kendrick the relator properly invoked
public standing and was excused from showing particularized
injury. Taken together, it is clear this Court was well-aware
of both rules: the general standing rule requiring
particularized injury, and the public standing rule
conferring standing on a member of the public as a matter of
law, without particularized injury, when enforcement of a
public duty is sought by mandamus.
Injury in fact has always been the primary focus of
Alabama’s general standing rule. See Ex parte King, 50 So. 3d
at 1059 (“Traditionally, Alabama courts have focused
primarily on the injury claimed by the aggrieved party to
determine whether that party has standing . . . .”). For over
a century, Alabama has equally recognized the rule of public
interest standing. See, e.g. , Bryce , 55 So. at 638. The
formulaic restatement of the general standing rule adopted by
this Court in Henri – Duval did not abolish public interest
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standing, expressly or by implication. 5 Respondents, by
devoting so much argument to particularized injury under the
general rule, have merely pooled their ignorance of the
applicable standard in this case, resulting in a straw man to
whom this Court owes no heed. 6
As evident from the multitude of cases above, under the
public interest standing rule all that Relators must show
this Court is that (1) they are citizens of Alabama, and (2)
they are seeking t o require a “ public officer to perform a
legal duty in which the public has an interest.” Kendrick , 54
So. 2d at 447. That Relators are citizens of Alabama is not
disputed by Respondents, and is conclusively established in
5 Conceding the inconvenience of public standing to hisposition, Respondent Reed goes so far as to plead forabolishment of public standing now . (Reed Ans. at 23-24.)This bald attempt to prevent consideration of the merits ofRelators’ Petition only bolsters both the historicity andcontinued vitality of the public standing rule in Alabama.
6 In their confusion, Respondents King and Ragland attemptto rewrite the public standing rule by superimposing the novelrequirement of “a concrete personal benefit from the relief
sought in order to acquire standing,” even calling it “well -established jurisprudence.” (King -Ragland Ans. at 15.)However, they utterly fail to explain the source of thisphantom requirement, given the actual jurisprudence of publicstanding which expressly does not require any personalbenefit at all.
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the Petition (Pet., Stmt. of Facts, ¶¶ 10-11), and in the
Verifications of Katherine Robertson (attached as Exhibit A ,
at ¶¶ 3,5), and Joseph Godfrey (attached as Exhibit B , at ¶¶
3,5). Moreover, that this Petition is brought by public
interest, non-profit corporate entities rather than
individuals is of no moment whatsoever, because public
interest standing is available to citizen groups and
corporations as well as individuals. 7
As for the second requirement, it ought to be plainly
evident that the Alabama public has an interest in
7 See, e.g. , Marone , 967 N.Y.S.2d at 589 (“The publicinterest standing of a citizen has been extended to
corporations as well as other organizations.”); Save thePlastic Bag Coal. v. City of Manhattan Beach , 254 P.3d 1005,1013 (Cal. 2011) (“corporate entities should be as free asnatural persons to litigate in the public intere st”); Stateex rel. Ohio Motorists Ass'n v. Masten , 456 N.E.2d 567, 573n.4 (Ohio Ct. App. 1982) (“We are persuaded that an Ohiocorporation may have as great an interest as a natural personin seeking the just enforcement of state laws, and may beconsidered to be a citizen of the state of Ohio entitled toinstitute an action in mandamus.”); c.f. Jackson Sec. & Inv.Co. v. State , 2 So. 2d 760, 764 (Ala. 1941) (“The general
rule is recognized everywhere that a corporation is a citizen,resident or inhabitant of the state under whose laws it wascreated . . . .”); § 10A -1- 2.11, Ala. Code 1975 (“[W]hetheror not expressly stated in its governing documents, a domesticentity has the same powers as an individual to take actionnecessary or convenient to carry out its business andaffairs.”).
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Respo ndents’ faithful compliance with Alabama’s marriage
laws. However, Respondents have curiously chosen to dispute
this, so Relators demonstrate it in the next section.
II. RELATORS PROPERLY BRING THIS ACTION IN THE NAME OF THESTATE TO ENFORCE A DUTY OWING TO THE PUBLIC.
A. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is a duty owing to the public.
Relators have public standing to seek enforcement of
Alabama’s marriage laws by mandamus ( see supra § I) because
a pr obate judge’s duty to issue marriage licenses in
accordance with those laws is unquestionably a duty owing to
the public. The Alabama public’s interest in enforcement of
both the Marriage Amendment and the Marriage Act is evident
in the language of the laws themselves:
Marriage is inherently a uniquerelationship between a man and a woman. Asa matter of public policy , this state hasa special interest in encouraging,supporting, and protecting this uniquerelationship in order to promote, amongother goals, the stability and welfare ofsociety and its children. A marriagecontracted between individuals of the same
sex is invalid in this state.Art. 1, § 36.03(b), Ala. Const. 1901; § 30-1-19(b), Ala. Code
1975 (same). Furthermore, the public’s interest in
enforcement of the Marriage Amendment, in particular, is
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evidenced by its ratification in 2006 by 81% of Alabama
voters . 8
The United States Supreme Court has recognized the
importance to the public of preserving the institution of
marriage, observing, “Marr iage and procreation are
fundamental to the very existence and survival of the race.”
Skinner v. State of Okla. ex rel. Williamson , 316 U.S. 535,
541 (1942). And, in the prior century:
Other contracts may be modified,restricted, or enlarged, or entirelyreleased upon the consent of the parties.Not so with marriage. The relation onceformed, the law steps in and holds theparties to various obligations andliabilities. It is an institution, in the
maintenance of which in its purity the public is deeply interested , for it is the
foundation of the family and of society,without which there would be neithercivilization nor progress.
Maynard v. Hill , 125 U.S. 190, 211 (1888) (emphasis added).
The “purity” of the institution of marriage to which the
U.S. Supreme Court referred undoubtedly included its natural,
8 Certification of Constitutional Amendment ElectionResults (June 6, 2006), http://alabamavotes.gov/downloads/election/2006/primary/ProposedAmendments-OfficialResultsCertification-06-28-2006.pdf (last visitedFebruary 23, 2015).
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historical definition as the unique union of a man and a
woman:
For better, for worse, or for more of thesame, marriage has long been a socialinstitution defined by relationships
between men and women . So long defined, thetradition is measured in millennia, notcenturies or decades. So widely shared, thetradition until recently had been adoptedby all governments and major religions ofthe world.
DeBoer v. Snyder , 772 F.3d 388, 395-96 (6th Cir. 2014)
(emphasis added). 9
Given the historic importance of the marriage institution
to “the stability and welfare of society,” as expressly
recognized in both the Marriage Amendment and the Marriage
Act, the Alabama “ public is deeply interested” in the
performance of the duties established by these laws, by the
probate judges entrusted with performing them. These duties
owing to the public expressly include the duty not to issue
9
Cert. granted sub nom.
Obergefell v. Hodges
, No. 14-556,2015 WL 213646 (U.S. Jan. 16, 2015) and cert. granted subnom. Tanco v. Haslam , No. 14-562, 2015 WL 213648 (U.S. Jan.16, 2015) and cert. granted, No. 14-571, 2015 WL 213650 (U.S.Jan. 16, 2015) and cert. granted sub nom. Bourke v. Beshear ,No. 14-574, 2015 WL 213651 (U.S. Jan. 16, 2015).
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marriage licenses to same-sex couples. Art. 1, § 36.03(d),
Ala. Const. 1901; § 30-1-19(d), Ala. Code 1975.
Alabama courts have consistently classified ministerial
duties imposed on public officials by statute as public duties
which can be enforced by the public in the name of the state.
For example, as shown above, this Court held in Rodgers that
a county sheriff’s statutory duty to provide written reports
of inmate population to the circuit clerk is “a legal duty in
which the public has an interest .... ’ 146 So. 2d at 314-15.
In Kendrick , also shown above, this Court held that a county
commi ssion’s statutory duty to provide voting machines for
county elections “ does not concern the sovereign rights of
the State and is one in which the public, all the people of
[the] county, have an interest.” 54 So. 2d at 447. In Gray v.
State ex rel. Garrison , 164 So. 293, 295 (Ala. 1935), the
Court held a county commissioner’s statutory duty to sign a
warrant on appropriation for a public library “a legal duty
in which there was such public interest as warranted a
proceeding by mandamus in the name of the st ate.” In Homan v.
State ex rel. Smith , 89 So. 2d 184, 186 (Ala. 1956), the Court
held the statutory duty of a board of town commissioners to
hold an election regarding annexation of a town “does not
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concern the sovereign rights of the State and is one in which
the public, all of the people of the municipalities involved,
have an interest.” And finally, in Marshall County Bd. Educ.
v. State ex rel. Williams , 42 So. 2d 24, 27 (Ala. 1949), the
Court held that a petition for mandamus to a county education
board to compel its performance of a statutory duty to allow
school enrollment only to students of a certain age “was for
the enforcement of a public duty by respondents and, therefore
. . . was properly brought in the name of the State on the
relation of the p etitioners.”
In each of the above examples, the official duty was
imposed by a state statute, and the duty owed was to the
public, not the state government. 10 The duty of probate judges
to issue marriage licenses in accordance with the Marriage
Act is likewise such a duty owing to the public, and the same
duty under the Marriage Amendment even more so given its
direct ratification by Alabama voters. Thus, Relators satisfy
the second requirement for public standing to proceed in the
name of the state.
10 See infra § II.B.
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B. The duty of a probate judge to issue marriagelicenses in accordance with Alabama’s marriagelaws is not a duty owing to government.
Public duties are not enforceable by citizens under the
public standing rule only if “the matter concerns the
sovereign rights of the State, in which event it must be
instituted on the relation of the Attorney General .”
Morrison, 141 So. 2d at 170. “ Where the duty is owing to the
government as such, private individuals . . . cannot resort
to mandamus to enforce it.” Id. (emphasis added) (internal
quotations and citations omitted). Morrison is the third of
three cases in the only line of Alabama cases to have reserved
to the Attorney General the right to vindicate “the sovereign
rights of the State.” Id. All three of the cases involve the
state’s sovereign right to assess property values for the
levy of taxes . Careful review of the cases reveals that the
public duty of a probate judge to issue marriage licenses in
accordance with Alabama’s marriage laws is not a matter
concerning the sovereign rights of the state under this rule.
The first case in the line is State ex rel. Chilton
County v. Butler , 142 So. 531 (Ala. 1932). Chilton County
sued the state tax commissioner to force the commissioner to
assess a public utility's property in the county at 60% of
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its value instead of 45%. Id. at 532. In addition to the taxes
levied by the state based on the assessment, the amount of a
county-level tax was also dependent on the assessment. Id. at
532-33. Thus, the county sought to enforce the tax
commissioner’s statutory duty to assess the utility’s
property for the benefit of the county . 11 Id.
The Chilton County Court recognized that the assessment
of taxes “is a state prerogative in the exercise of its
sovereign power to tax, ” and that “[t]he r ight of a county .
. . to levy a tax is a bounty conferred by the state . . . . ”
Id. at 533. The Court also recognized that the state’s
conferring, to the county, of the right to levy a tax did not
include the right to enforce the tax commissioner’s duty to
assess values properly, which right is owed to the state
government. Id. at 532-33. Thus, the Court concluded the
county was “ seeking to enforce a claim which involves
sovereign capacity, rather than one which relates to a
11 Though the county intended to enforce a private right,rather than invoke public interest standing, it brought itspetition as a relator in the name of the state. Id. at 532.The Court recognized that this procedure was not unusual, butalso was not necessary. Id.
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function delegated to the count y,” which claim was reserved
to the Attorney General. 12 Id. at 533.
The second case, State ex rel. Foshee v. Butler , 142 So.
533 (Ala. 1932), was the companion case to Chilton County .
The Foshee opinion is much shorter, referring to the Chilton
County opi nion for “discussion of the pertinent principles.”
Id. at 533. Foshee is more apposite than Chilton County to
the instant case, however, because it involved a citizen
invoking public interest standing to seek mandamus in the
name of the state. Id. at 533-34. Like the county in Chilton
County , the citizen relator in Foshee sought mandamus to
compel the state tax commissioner to assess the same public
utility ’s property at 60% instead of 45%. Id. at 533-34. The
relator did not show general standing, the Court held, because
he did not seek relief for “an injury peculiar to himself.”
Id. at 534 . He also did not show public standing, however,
12 The Chilton County court distinguished the case beforeit from one in which a county could force a state officer,after having exercised the state prerogative of assessment,to then certify the assessment to the county. Id . The basisof the distinction was that the duty to certify theassessment, having already been made, "was a ministerial dutyto the performance of which the county may have a clear legalright." Id. at 533.
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because he did not seek performance of an “official duty to
the public at large.” Id. Rather, relator sought performance
of a duty owed “only to the state in its sovereign capacity.”
Id. In dismissing his petition, the court stated “[t]he
general rule is that an individual cannot enforce a right
owing to the government . . . .” Id. (emphasis added).
In Morrison , the third in this line of cases, a member
of a county board of equalization, as relator, sued the board
chairman in the name of the state, seeking to void a board
notice of changes in the assessments of certain taxpayer’s
properties, based on the board's having improperly made the
new assessments. 141 So. 2d at 169. Citing to both Chilton
County and Foshee , the tax assessment cases which preceded
Morrison , the Court similarly held that the relator could not
enforce by mandamus the tax assessment duties “‘ owing to the
state in its sovereign capacity. ’” Id. at 170 . “[P]roceedings
for the enforcement of such right are to be instituted by the
Attorney General.” Id.
Taken together, Chilton County , Foshee , and Morrison
instruct that the authority to assess taxes is a prerogative
of the state. Further, any statutory power to assess taxes is
a power conferred by the state, while the duty to assess taxes
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in a particular manner or amount is a duty owed to the state
and not the public at large. Thus, there is no public standing
for a citizen to enforce an assessment duty because “ [w]here
the duty is owing to the government . . . private individuals
. . . cannot resort to mandamus to enforce it.” Morrison, 141
So. 2d at 170 (emphasis added) (internal quotations and
citations omitted).
Nothing in this line of cases can remove the duty of an
Alabama probate judge to issue marriage licenses in
accordance with Alabama’s marriage laws from the realm of
public duties which are properly enforced by the public, under
the public standing rule. Unlike the duty to make proper tax
assessments, which owes to the government, the duty to issue
marriage licenses in accordance with the Marriage Amendment
and the Marriage Act owes to the Alabama public. ( See supra
§ II.A.) Though Respondents attempt t o argue that Relators’
claims improperly usurp the sovereign rights of the state,
they utterly fail to show how Chilton County or its progeny
can possibly support such an argument, and none of them cites
any other line of cases for the point. (King-Ragland Ans. at
18-21; Martin Ans. at 16-19; Reed Ans. at 20-24.)
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Respondent Martin, for example, merely repeats his
conflation of the general standing requirement of
particularized injury in arguing that only sovereign rights
of the state, actionable by the Attorney General, are present
“where there is no concrete personal benefit involved” for a
citizen relator. (Martin Ans. at 18.) Judge Martin even
accuses Relators of not sharing with this Court the full
counsel of Kendrick . ( Id. ) But, as shown in § II.A above,
Kendrick expressly rejected the need for any “concrete
personal benefit” to support public interest standing,
holding it did not matter to the relator’s standing whether
he personally would receive voting machines in his precinct.
Kendrick , 54 So. 2d at 447.
Respondent Reed ’s arguments for recasting Relators’
public duty claims as sovereign rights claims are also
unconvincing. Judge Reed argues that there must be a
limitation on public standing because “[a]ll laws and
executive actions affect the public in some sense, directly
or indirectly.” (Reed Ans. at 21.) But Respondent cannot point
to any authority that could limit the application of public
standing to this case. So instead, he simply asserts that
public standing should be abolished. (Reed Ans. at 23-24.)
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Finally, excluding the Marriage Amendment in particular
from enforcement by public interest standing would not only
be inconsistent with this Court’s public standing
jurisprudence, but it would also undermine the right reserved
to the people of Alabama to amend their state constitution.
Such a shift by this Court would disenfranchise millions of
Alabamians, and would infringe their constitutional right to
amend their own constitution.
III. THIS COURT’S JURISDI CTION IS PROPERLY INVOKED UNDER CLEARPRECEDENT.
A. This Court has original jurisdiction over a mandamus petition directed to a judge of probate to command performance of a ministerial
duty.
Unless this Court would reverse its own, unanimous
opinion of only three years ago, its jurisdiction over the
Petition is not only proper, but also mandatory and exclusive.
In Ex parte Jim Walter Resources, Inc. , 91 So. 3d 50 (Ala.
2012), this Court accepted jurisdiction to review a petition
for writ of mandamus directed to a judge of probate, to compel
the judge to perform a ministerial act. 91 So. 3d at 52. TheCourt explained the basis for its jurisdiction:
We note that this Court has jurisdictionto review a petition for a writ of mandamusin matters as to which this Court hasappellate jurisdiction. See § 12 – 3 – 11,
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Ala. Code 1975 (“Each of the courts ofappeals shall have and exercise originaljurisdiction in the issuance anddetermination of writs of quo warranto andmandamus in relation to matters in whichsaid court has appellate jurisdiction.”).
A probate cou rt’s application of the mortgage-recordation-tax statute is within
this Court’s jurisdiction because thecircuit court’s appellate jurisdictionover probate matters is limited and doesnot include the taxing issue involved inthis case. See § 12 – 22 – 21, Ala. Code 1975(listing probate-court matters over whichthe circuit court has appellate
jurisdiction); Oliver v. Shealey, 67 So.3d 73, 74 (Ala. 2011)(holding that appealsfrom probate court are heard first by thisCourt if the subject matter is not properfor the appeal to be heard in circuit courtand noting that “[a] circuit court’sappellate jurisdiction over an order of aprobate court is confined to sevencircumstances enumerated in § 12 – 22 –21”).
Id. (emphasis added). 13
Regarding its power to issue a writ of mandamus to a
probate court, this Court further explained:
A writ of mandamus will lie to compel acourt to perform ministerial duties. . . .In the present case, imposing therecordation tax on a mortgage recorded ina county is part of the administrative
duties of the probate judge of the countyand, as such, is a ministerial function.
13 The unanimous panel comprised Justices Bolin, Woodall,Murdock, Main, and Wise.
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Id. at 53. Thus, this Court has original jurisdiction over
mandamus petitions directed to probate judges, to perform
ministerial duties, when those duties concern issues outside
the limited categories of probate court appeals which can be
heard by a circuit court under § 12-22-21, Ala. Code 1975.
Id . at 52-53. Like the probate judge’s application of
recording tax laws at issue in Jim Walter , a probate judge’s
applicatio n of Alabama’s marriage statutes is similarly
excluded from the limited categories of circuit court
jurisdiction under § 12-22-21. And, as shown in the Petition,
“[t]he issuance of a marriage license by a judge of probate
is a ministerial and not a judicia l act.” Ashley v. State , 19
So. 917, 91 (1896). (Pet. at 12.) Thus, under Jim Walter ,
this Court has clear, original and exclusive jurisdiction
over the Petition in this case.
The Jim Walter decision disposes of Respondents’ lengthy
jurisdiction arguments. Not surprisingly, Respondents strain
to convince this Court the case says something else. For
example, Respondents King, Ragland, and Martin nonsensically
argue , “Although that case involved an original petition to
this Court, it was brought under this Co urt’s appellate
jurisdiction . . . .” ( King-Ragland Ans. at 32 n.6; Martin
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Ans. at 26 n.7.) 14 This Court, however, did not invoke its
appellate jurisdiction in Jim Walter , as suggested by
Respondents. Rather, this Court recognized that it has
original writ jurisdiction which is a corollary to its
appellate jurisdiction: “We note that this Court has
[original] jurisdiction to review a petition for a writ of
mandamus in matters as to which this Court [also] has
appellate jurisdiction.” 91 So. 3d at 52. This Court should
uphold its own precedent and disregard all Respondents’
attempts to bypass the jurisdictional authority of Jim
Walter .
B. This Court may exercise jurisdiction to issuea supervisory writ to any inferior court whennecessary to afford full relief and do completejustice.
Even if this Court did not have original and exclusive
jurisdiction over this Petition under Jim Walter , and even if
we assume for the sake of argument (without conceding) that
lower courts also have jurisdiction to entertain multiple and
separate petitions directed at judges within their geographic
14 Respondent Reed only briefly comments on Jim Walter ,attempting in vain to distinguish it by presuming to knowwhat t he Court “did not consider” in reaching its decision.(Reed Ans. at 27.)
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husband, disqualified her from unemployment compensation
benefits. Id. at 307-08. The precise question was whether
voluntarily leaving employment to join her husband in another
state, as opposed to voluntarily leaving for some other
reason, was sufficiently good cause under the act to avoid
disqualification from benefits. Id. at 309-310.
Focusing on the unique values involved in the
relationship between a husband and wife, the Court devoted
considerable attention to the question, but ultimately
concluded that the voluntary employment termination was
without good cause, which disqualified the wife from
receiving benefits. Id. at 310-11.
The Court decided to take jurisdiction over the petition,
even though a circuit court also could have exercised
jurisdiction . The Court’s decision was based on several
factors:
On account of [1] the importance of thequestion here involved, [2] its state-wideapplication, [3] the need of an earlydecision, [4] the territorially restricted
jurisdiction of the circuit court and [5]the consent of the parties, we haveconcluded in the exercise of our power anddiscretion to give consideration to themerits of the question and make decisionof it.
Id.
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Applying the factors considered in Textile Products , it
is difficult to conceive of a more compelling case than the
instant case for this Court to take jurisdiction. To begin
with, the importance of the unemployment compensation
question involved in Textile Products pales in comparison to
the importance of the question involved in the instant case:
the statewide licensure of the “unique relationship” of
marriage , promoting “the stability and welfare of society”,
pursuant to an Alabama constitutional amendment ratified by
81% of Alabama voters. 15 Art. 1, § 36.03(b), Ala. Const. 1901.
And because the important question implicates the conduct of
nearly fifty probate judges throughout the state issuing
licenses contrary to the Marriage Amendment, 16 no single
15 The question before the Textile Products Court, thoughin the arena of unemployment compensation, also concernedmarriage. In his criticism of the majority holding, one ofthe two dissenting justices highlighted the uniquesignificance of the marriage relationship to the questiondecided: “It . . . ignores the moral influence of the home
and family ties,and strikes at one of our most sacred
institutions - the home and family life.” Id. at 311 (Brown,J., dissenting) (emphasis added). To the extent the marriageaspect of the question contributed to the Court’s deeming itimportant, then a fortiori the Court should deem importantthe question in the instant case.
16 See infra , n.17.
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circuit court, or even ten circuit courts, “possess[ ] the
authority to afford to the petitioner relief as ample as this
court could grant .” Id. at 305 (emphasis added). Rather,
relegating the question to the multitude of circuit courts
necessary to cover the judges in question could not possibly
provide relief a quickly as this Court can, and virtually
ensures continuation of the legal discord and disharmony
which has taken hold in the state. This Court should take
jurisdiction because “complete justice otherwise cannot be
done .” Id. at 306 (emphasis added). Only this Court can issue
a ruling binding throughout the state, to quickly restore
uniformity and the rule of law.
Respondents incorrectly read this Court’s exercise of
jurisdiction in Textile Products as turning primarily on the
consent of the parties. (King-Ragland Ans. at 24; Martin Ans.
at 33; Reed Ans. at 28.) This, of course, cannot be true.
“[T]his Court can only act within the jurisdiction conferred
by law, and this cannot be enlarged by waiver or the consent
of the parties.” Id. at 305. Although the Court observed that
a request to take jurisdiction with no objection by a party
receives “more favorable consideration , ” consent was but one
factor cited by the Court in deciding to take jurisdiction in
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Textile Products , and the last one at that. Resp ondents’ lack
of consent to this Court’s jurisdiction in the instant case
is hardly worth considering, given the substantial weight of
the other factors favoring jurisdiction.
Respondents ’ arguments that Textile Products cannot
apply to this case because it involved a writ of certiorari
likewise have no merit. For purposes of this Court’s
jurisdiction under Textile Products , the distinction makes no
difference. In Ex parte Tubbs , 585 So. 2d 1301 (Ala. 1991),
this Court had before it a mandamus petition, and recognized
that original jurisdiction may lie “ where complete justice
cannot otherwise be done,” citing both Textile Products and
Ex parte Barger, 11 So. 2d 359 (Ala. 1942). Tubbs , 585 So. 2d
at 1302. The Tubbs Court dismissed the petition before it
only because there were “no special circumstances that
warrant . . . taking jurisdiction.” Id. And in Denson v. Bd.
of Trustees of Univ. of Ala. , 23 So. 2d 714 (Ala. 1945), this
Court likewise found that the Textile Products grounds for
jurisdiction were not satisfied in an original mandamus
petition directed to a probate judge, not that the Textile
Products grounds could not apply . 23 So. 2d 714 at 715. As
shown above, “special circumstances” abound in the instant
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case, and this Court should take jurisdiction over the
Petition to do “complete justice . ”
IV. RELATORS ARE ENTITLED TO MANDAMUS RELIEF.
A. The Petition is procedurally complete.
No Respondent takes issue with the fact that the Petition
was initially unverified. However, in their separate dissents
fro m this Court’s Order requiring Respondents to answer the
Petition, Justices Shaw and Main both expressed concern that
the Petition was unverified. (Order on Pet. for Writ of
Mandamus, at 2, 4 (Feb. 13, 2015)).
Rule 21 of the Alabama Rules of Appellate Procedure does
not require mandamus petitions filed with this Court to be
verified. Ala. R. App. P. 21. As such, this Court has held
that § 6-6-640, Ala. Code 1975, which required mandamus
petitions to be verified, has been superseded by Rule 21, and
verification is no longer required in appellate courts. See
Ex parte Johnson , 485 So. 2d 1098, 1106 (Ala. 1986) (“ [W]e
hold that the verification requirement of § 6 – 6 – 640 does not
apply as to mandamus petitions governed by the Alabama Rulesof Appellate Procedure, and the petition is not due to be
dismissed because of petitioner's failure to have it
verified. ”). See also , Ex parte Collins , 84 So. 3d 48, 49 n.1
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(Ala. 2010) (“[A] petition for a writ of mandamus filed in an
appellate court need not be verified.”).
Nevertheless, out of an abundance of caution, Relators
submit with this Reply the Verification of Katherine
Robertson (attached as Exhibit A ), the Verification of Joseph
Godfrey (attached as Exhibit B ), verifying the factual
allegations of API and ALCAP, respectively. Relators also
submit the Verification of Attorney Roger K. Gannam (attached
as Exhibit C ), verifying the authenticity of the exhibits to
the Petition, and verifying generally the facts alleged in
the Petition. See, e.g. , Ex parte Ackles , 840 So. 2d 145, 146
(Ala. 2002) (“[T]he affidavit can be made by an agent or
attorney who is conversant with the facts.”) overruled on
other grounds by Ex parte Collins , 84 So. 3d 48 (Ala. 2010);
Gordon v. State ex rel. Cole , 185 So. 889, 890 (Ala. 1939)
(“[T]he affidavit may be made by an agent or attorney
conversant with the facts.”).
Notably, no Respondent disputes any of the material facts
alleged in the Petition. Respondents do not dispute the
statements about API and ALCAP, and Respondents do not dispute
that they have granted, and will continue to grant when
requested, same-sex marriage licenses. Respondents also do
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not dispute the authenticity of the exhibits to the Petition,
offering instead some of the same documents as exhibits to
their own responses.
The only additional fact useful for this Court’s
adjudication of the Petition is that, since the filing of the
Petition, a large number of other probate judges within
Alabama have also begun issuing same-sex marriage licenses in
derogation of the Alabama Constitution and Alabama law,
which, as explained in § III.B, above, provides another
independent basis for this Court’s jurisdiction and urgent
intervention. Respondents do not dispute this, and this Court
may judicially notice this generally known and
incontrovertible development. See Ala. R. Evid. 201(f)
(“Judicial notice may be taken at any stage of the
proceeding.”); 201(b) ( allowing judicial notice of “fact[s]
. . . not subject to reasonable dispute [and] generally
known”). That a majority of Alabama’s probate judges are now
issuing same-sex marriage licenses has been widely reported
and is generally known in Alabama. 17
17 See, e.g. , Kim Chandler, Alabama Judges Resistance toSame-sex Marriage Crumbles , Associated Press (Feb. 14, 2015),
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In sum, there is no obstacle, procedural or substantive,
preventing this Court from reaching the merits of this
Petition, providing the requested relief, and restoring the
rule of law in Alabama.
B. Respondents’ arguments for denial of thePetition are based on fallacies.
Respondents’ Answers repeatedly make rhetorical
assertions that lack legal merit, either in their premises or
their conclusions. Following is a sampling of such fallacies,
available at http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/02/14/alabama-judges-resistance-sex-marriage-crumbles/23404127/ (last visited
Feb. 20, 2015) (reporting majority of Alabama probate judgesissuing marriage licenses to same-sex couples); CampbellRobertson, Most Alabama Judges Begin to Issue Licenses forSame-Sex Marriages , N.Y.Times (Feb. 13, 2015), available athttp://www.nytimes.com/2015/02/14/us/most-alabama-counties-are-granting-same-sex-marriage-licenses.html (last visitedFeb. 20, 2015); Alabama Judges’ Stand Against Gay MarriageCrumbles , Chicago Tribune (Feb. 13, 2015), available athttp://www.chicagotribune.com/news/nationworld/chi-alabama-gay-marriage-20150213-story.html (last visited Feb. 20, 2015); Richard Fausset,Fresh Challenge to Gay Marriage Increases Confusion inAlabama , N.Y.Times (Feb. 18, 2015), available athttp://www.nytimes.com/2015/02/19/us/fresh-challenge-to-gay-marriage-increases-confusion-in-alabama.html?_r=0 (lastvisited Feb. 20, 2015) (“[M]ost county probate judges inAlabama are now issuing marriage licenses to same-sexcouples.”).
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variously presented by Respondents (“variously,” as they are
not consistent with one another):
Fallacy #1: That a non-binding federal
trial court order transforms a ministerialduty into a discretionary duty.
Respondents King, Ragland, and Martin concede that, prior
to the Searcy and Strawser Injunctions, no probate judge had
the discretion to issue a marriage license to a same-sex
couple. (King-Ragland Ans. at 28-29; Martin Ans. at 23.) These
Responde nts also concede, “the rulings in the federal court
cases are not necessarily binding on any probate judge . . .
.” (King -Ragland Ans. at 29; Martin Ans. at 23.) From these
concessions, however, they conclude that they are now due
discretion to “respect the federal decision” and disobey
Alabama’s marriage laws because Relators have not supplied
authority to the contrary. (King-Ragland Ans. at 29-30;
Martin Ans. at 23-25.) This reasoning is patently fallacious.
Furthermore, Respondents claim their preference is to
“allow the issue to be worked out through the proper legal
channels by the proper legal authorities . . . .” (King -
Ragland Ans. at 30; Martin Ans. at 25.) But observing “the
proper legal channels,” and voluntarily disregarding
Alabama’s marriage laws in “respect” of a non -binding federal
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order, are mutually exclusive positions; no probate judge can
do both.
Respondent Reed invokes Judge Granade’s hypothesis that,
though not bound, probate judges not before her court “may
certainly follow her ruling . . . .” (Reed Ans. at 34.)
However, neither Judge Reed nor Judge Granade reveals how a
federal order which is non-binding on the issue of what a
probate judge must do as a matter of duty, is nonetheless
binding on the issue of what a probate judge may do as a
matter of discretion. Because Judge Granade has no
jurisdiction over Respondents, her opinions have no more
application to Respondents than the opinions of courts from
distant states (or countries). Respondents would be foolhardy
to argue that they “may certainly follow” the rulings of
faraway trial courts. Their contention with respect to Judge
Grenade is equally meritless. If Respondents are so intent on
following the decisions of federal courts which have no
jurisdiction over them, they should at least follow the well-
reasoned opinions of trial and appellate courts that have
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upheld the constitutionality of natural, man-woman marriage. 18
Those decisions are consisted with the Alabama law and
Constitution and do not require Respondents to violate their
sworn duties to uphold them.
Finally, each Respondent appeals to the possibility of
being sued, in a new, original lawsuit, by new plaintiffs
burdened with proving their own case, as grounds for endowing
Respondents with discretion to disregard Alabama’s marriage
laws. (King-Ragland Ans. at 29; Martin Ans. at 24; Reed Ans.
at 36.) Here Respondents urge a rule of convenience, not a
rule of law. 19 If fear of lawsuits in our litigious world
would suffice to confer discretion on public officials to
abandon their sworn duties to uphold the law, all law would
be in a precarious position indeed. Public officials are sued
all the time, for all kinds of reasons, not all of them
legitimate. When they are sued, public officials defend
18 See e.g. , DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014);Conde-Vidal v. Garcia-Padilla
, No. 14-1253, 2014 WL 5361987(D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell , 2 F. Supp. 3d910 (E.D. La. 2014)
19 Respondent judges seek to lower their own legal burdens,even while they seek to increase the legal burdens of thecitizens of Alabama by adding to the requirements of (orabolishing) the rule of public standing. See supra § II.A.
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lawsuits, and often win them. That Judge Grenade reached one
opinion on Alabama’s marriage laws has no bearing on whether
a different judge in a different district (or even her own
district) will reach the same opinion in a hypothetical new
suit, or would side with those courts who have upheld man-
woman marriage.
In sum, Respondents ’ dire predictions are both
speculative and legally insufficient to excuse their
voluntary departure from Alabama law.
Fallacy #2: That this Court is required torule on the constitutionality of the
Marriage Amendment and the Marriage Act.
Respondents King, Ragland, and Martin assert that
granting the Petition will require this Court to rule on the
constitutionality of the Marriage Amendment and the Marriage
Act. (King-Ragland Ans. at 32; Martin Ans. at 27.) This
argument ignores what the Petition says. Relators are
entitled to relief because the probate judge duties they seek
to compel by mandamus are ministerial, and no court of
competent jurisdiction (over Respondents) has ruled the
Marriage Amendment or Marriage Act unconstitutional . (Pet. at
11-19.) Granting the Petition does not require this Court to
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review the merits of the Searcy or the Strawser Injunctions. 20
Thus, to grant the Petition, this Court need only determine
that Alabama’s marriage laws have not been ruled
unconstitutional by a court with jurisdiction over
Respondents. That determination is not a difficult one,
because Respondents concede it.
Fallacy #3: That writs of mandamuscommanding performance of Respondents’duties under the Marriage Amendment and
Marriage Act are speculative relief.Respondents King, Ragland, and Martin each claim the
Petition seeks speculative relief because none of them knows
whether a same-sex couple will request a marriage license
after this Court rules. (King-Ragland Ans. at 31-32; Martin
Ans. at 25-26.). This argument is disingenuous. No Respondent
disputes that he has begun issuing marriage licenses to same-
sex couples. Each Respondent’s commencing to issue marriage
licenses to same-sex couples on February 9, 2015, required an
20 This Court is nonetheless competent to disagree withJudge Granade in a case where the question is properly beforeit. See Lockhart v. Fretwell , 506 U.S. 364, 375-76 (1993)(Thomas, J., concurring) (“[N]either federal supremacy norany other principle of federal law requires that a statecourt’s interpretation of federal law give way to a (lower)federal court’s interpretation.”)
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issuing marriage licenses to same-sex couples in violation of
the Marriage Amendment and the Marriage Act. For from
promoting uniformity, denying the Petition will ensure
continuation of the current discord and disharmony. Granting
the Petition, on the other hand, will provide Respondents and
the citizens of Alabama with the uniformity Respondents seek.
CONCLUSION
In accordance with the foregoing, Relators request a writ
of mandamus directed to each Respondent, commanding each of
them not to issue marriage licenses to same-sex couples and
not to recognize any marriage licenses issued to same-sex
couples.
Respectfully Submitted,
s/ Mathew D. Staver Mathew D. Staver †
Fla. Bar No. [email protected]@LC.orgHoratio G. Mihet † Fla. Bar No. [email protected] K. Gannam † Fla. Bar No. [email protected] IBERTY C OUNSEL P.O. BOX 540774Orlando, FL 32854-0774(800) 671-1776(407) 875-0770 FAX† Admitted pro hac vice
A. Eric Johnston (ASB-2574-H38A) [email protected] 1071200 Corporate DriveBirmingham, AL 35242(205)408-8893(205)408-8894 FAX
Samuel J. McLure (MCL-056)[email protected] Adoption Law FirmPO Box 2396Montgomery, AL 36102(334)612-3406
Attorneys for Petitioner
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Attorneys for Hon. Don DavisLee L. [email protected] Church StreetMobile, AL 36602
J. Michael Druhan, [email protected]
Harry V. [email protected]
Luther StrangeAttorney General,
State of Alabama501 Washington AvenueMontgomery, AL [email protected]
s/ Roger K. GannamRoger K. GannamAttorney for Petitioner
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EXHIBIT A
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EXHIBIT C
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