E-Filed

CasePM
1:14-cv-00424-CG-C
03/05/2015 @ 06:42:05
Honorable Julia Jordan Weller
Clerk Of The Court

Document 71-3 Filed 03/05/15 Page 1 of 10

IN THE SUPREME COURT OF ALABAMA

Ex parte STATE ex rel. ALABAMA

POLICY INSTITUTE and ALABAMA
CITIZENS ACTION PROGRAM,
Petitioner,
v.
CASE NO. 1140460
ALAN L. KING, in his official capacity
as Judge of Probate for Jefferson County,
Alabama, ROBERT M. MARTIN, in his
official capacity as Judge of Probate for
Madison County, Alabama, STEVEN
L. REED, in his official capacity as
Judge of Probate for Montgomery
County, Alabama, and JUDGE DOES
##1-63, each in His or her official capacity
as an Alabama Judge of Probate,
Respondents.

BRIEF IN SUPPORT OF MOTION TO EXTEND 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 if granted, means no more plaintiffs will be added to the federal litigation. Perhaps
the Alabama Judicial Inquiry Commission or Judge Granade will 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. The Order suggests
that it is not immediately directed to Judge Don Davis.1 Judge Davis is the only probate judge in

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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 the issuance of a marriage license from
the Mobile 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.
Judge Davis dilemma is if he denies a same sex couple a marriage license, then that
couple can do as the three additional couples did in Strawser and seek an order from the federal
court directing Judge Davis to issue the marriage license. On February 12, 2015, the federal
district court entered an order requiring Judge Davis to issue marriage licenses to each of the four
couples named as plaintiffs in that case.

Judge Davis has complied with the direct order of the federal district court as he is unsure
if two conflicting orders now apply directly to him. See Glassroth, v. Roy S. Moore, 335 F.3d
1282 (11th Cir. 2003), and Roy S. Moore v. Judicial Inquiry Commission of the State of
Alabama, 891 So.2d 848 (Ala. 2004).

The full impact of the Strawser and Cari D. Searcy v. Mobile County Probate Judge Don
Davis, Civil Action No.: 15-00104-C (Searcy II) cases upon Judge Davis is not clear. Judge
Davis is caught between Judge Granades orders to issue same sex marriage licenses and this
Courts Writ of Mandamus that Alabama probate judges shall not issue same sex marriage
licenses. These conflicting orders of the federal district court and this Honorable Court pose an
impossible task upon Judge Davis: fulfilling opposite orders which are issued to Judge Davis by
the federal court and the Alabama Supreme Court.
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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 the following in his Interlocutory Order in Searcy: Cari D. Searcy v.
Robert Bentley, Civil Action No.: 14-208 CG-N (Searcy 1)"the Court will not issue a final
adoption order until a final ruling is issued in the United States Supreme Court on the Marriage
Act cases before it." The federal judge indicated in her February 10, 2015 Order in Strawser that
her orders in Searcy must be read in conjunction with the Order in Strawser to be fully
understood. In Searcy I, other plaintiffs gave notice of their intent to seek money damages in the
form of Section 1983 claims against Judge Davis in his official capacity and personally for
violating their constitutional rights.

Judge Davis has made clear that he will follow the rule of law when directed by the
courts which have authority over him. Judge Davis has not sought out this dispute. In fact, 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 of the Administrative Order of the Chief Justice of the Supreme Court of Alabama
dated the 8th of February 2015, Case No. 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 Granades court

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against Judge Davis. Judge Davis could face personal liability. Judge Davis urges this
Honorable Court to consider such matters relating solely to Judge Davis among all the probate
judges in the State of Alabama. This Court should consider this risk in the context of an active
federal court case against Judge Davis which has already, and probably will further result in any
same sex couple who seeks a marriage license from Probate Court in Mobile County obtaining it
within 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
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. As the above facts
make clear, if Judge Davis refuses to issue a marriage license to a same sex couple, the federal
court can issue such an order 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
Granades Order, a Plaintiff could argue that Judge Granades Order protects 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, if
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 courts orders and hold

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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 if the broad
interpretation of Judge Granades 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 will not issue any
more marriage licenses to anyone until this Conflict is resolved.

There are other issues that presently are not known as they relate to future orders of this
Court. For example, if this Court required Judge Davis to vacate the marriage licenses issued to
the other same sex couples who did not appear before Judge Granade, this order might have a
further implication regarding the almost certain 1983 claims with attendant damages relating to
this unique category of plaintiff.

In conclusion, the complicated and serious consequences to Judge Davis, the citizens of
Mobile County and families throughout the state are too great to respond adequately in less than

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48 hours.

RESPECTFULLY SUBMITTED,

/S/LEE L. HALE
LEE L. HALE
lee.hale@comcast.net
501 CHURCH STREET
MOBILE, AL 36602
(251)433-3671

/S/MARK S. BOARDMAN
mboardman@boardmancarr.com
TERESA B. PETELOS
tpetelos@boardmancarr.com
CLAY R. CARR
ccarr@boardmancarr.com
BOARDMAN, CARR, BENNETT, WATKINS
HILL & GAMBLE, PC
400 BOARDMAN DRIVE
CHELSEA, AL 35043
(205)678-8000
/S/J. MICHAEL DRUHAN, JR.
mike@satterwhitelaw.com
HARRY V. SATTERWHITE
harry@satterwhitelaw.com
SATTERWHITE, DRUHAN, GAILLARD &
TYLER, LLC
1325 DAUPHIN STREET
MOBILE, AL 36604
(251)432-8120

End Notes
1.The final procedural issue we consider is whether the federal court's order prevents this Court
from acting with respect to probate judges of this State who, unlike Judge Davis in his
ministerial capacity, are not bound by the order of the federal district court in Strawser.
The answer is no. (Emphasis supplied) p.73 Mandamus Order
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CERTIFICATE OF SERVICE
I hereby certify that on this the 5th day of March 2015, I electronically filed the foregoing
with the Clerk of the Court using the ACIS system which will send notification to the following:
Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, AL 36130-0152
Phone: (334) 242-7447
smclure@ago.state.al.us
Matthew D. Staver
Horatio G. Mihet
Roger K. Graham
LIBERTY COUNSEL
Post Office Box 540774
Orlando, FL 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, AL 35242
Phone: (205) 408-8893
eric@aericjohnston.com
Samuel J. McLure
The Adoption Law Firm
Post Office Box 2396
Montgomery, AL 36102
Phone: (334) 612-3406
sam@theadaptionfirm.com
Jeffrey M. Sewell
French A. McMillan, LLC
1841 Second Avenue N., Suite 214
Jasper, AL 35501
Phone: (205) 544-2350

Case 1:14-cv-00424-CG-C Document 71-3 Filed 03/05/15 Page 8 of 10

jeff@sewellmcmillan.com
French@sewellmcmillan.com
G. Douglas Jones
Greg Hawley
Chris Nicholson
Jones & Hawley, PC
2001 Park Pl Ste. 830
Birmingham, AL 35203
Phone: (205) 490-2290
ghawley@joneshawley.com
cnicholson@joneshawley.com
djones@joneshawley.com
Kendrick E. Webb
Jamie Helen Kidd
Fred L. Clements
Webb & Eley, P.C.
Post Office Box 240909
Montgomery, AL 36124
Phone: (334) 262-1850
kwebb@webbeley.com
jkidd@webbeley.com
fclements@webbeley.com
Robert D. Segall
Copeland, Franco, Screws & Gill, P.A.
P.O. Box 347
Montgomery, AL 36101
Phone: (334) 420-2956
segall@copelandfranco.com
Thomas T. Gallion
Constance C. Walker
Haskell Slaughter & Gallion, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Phone: (334) 265-8573
ttg@hsg-law.com
ccw@hsg-law.com
Tyrone C. Means
H. Lewis Gillis
Kristen J. Gillis
MEANS GILLIS LAW, LLC
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Post Office Box 5058

60 Commerce Street, Suite 200
Montgomery, AL 36103
Phone: (334) 270-1033
tcmeans@meansgillislaw.com
hlgillis@meansgillislaw.com
kjgillis@meansgillislaw.com
Mark Englehart
Englehart Law Offices
9457 Alsbury Place
Montgomery, AL 36117
Phone: (334) 782-5258
jmenglehart@gmail.com
George W. Royer, Jr.
Brad A. Chynoweth
Lanier, Ford Chaver & Payne, P.C.
P.O. Box 2087
2101 West Clinton Ave., Suite 102
Huntsville, AL 35804
Phone: (256) 535-1100
gre@lfsp.com
bac@Lanierford.com
J. Richard Cohen
David Dinielli
Southern Poverty Law Center
400 Washington Avenue
Montgomery, AL 36104
Phone: (334) 956-8200
Richard.cohen@splcenter.org
David.dinielli@splcenter.org
Randall Marshall
ACLU of Alabama Foundation
P.O. Box 6179
Montgomery, AL 36106
rmarshall@aclualabama.org
L. Dean Johnson
L. Dean Johnson, PC
4030 Balmoral Dr. SW
Huntsville, AL 35801
Phone: (256) 880-5817

Case 1:14-cv-00424-CG-C Document 71-3 Filed 03/05/15 Page 10 of 10

dean@ldjpc.com
J. Stanton Glasscox
Glasscox Law firm, LLC
Post Office Box 2646
Birmingham, Alabama 35201
stan@glasscoxlaw.com
Samuel H. Heldman
The Gardner Firm, PC
2805 31st NW
Washington, DC 20008
sam@heldman.net

/s/ Lee L. Hale

OF COUNSEL

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