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Davis Response
Davis Response
02/18/2015 @ 03:34:42 PM
Honorable Julia Jordan Weller
Clerk Of The Court
The Emergency Petition for Writ of Mandamus filed on February 11, 2015 with this
Court on its face indicates that it does not apply to Judge Davis. Specifically, the Mandamus
Petition sets out that Judge Granades Order of January 23, 2015 directed to the Attorney
General, Luther Strange, did not apply to Judge Davis, who was not a party before Judge
Granade when the Order was issued. The Mandamus Petition States:
The plaintiffs before Judge Granade claimed that Judge Davis violated the Searcy
Injunction by not opening the marriage license division of the Mobile County
Probate Court on February 9, 2015. (Ord. (Ex. D) at 1.) In denying the motion,
1
Judge Granade acknowledged that Judge Davis was not a party to the case, FN 2
and was not ordered to do anything by the Searcy Injunction. Thus, Judge
Granade concluded, "Plaintiffs have offered no authority by which this court can
hold Davis in contempt or order any of the relief sought by Plaintiffs." (Ord. (Ex.
D) at 3.)
As shown above, Alabama probate judges are not bound by Judge Granade's legal
conclusions in either the Searcy or the Strawser Injunction. FN3 Thus, neither
Injunction provides any legal basis for a probate judge to disregard the clear
prohibitions against issuing marriage licenses to same-sex couples in the Marriage
Amendment and the Marriage Act. p. 18 of Petition for Mandamus.
The Mandamus Petitions footnotes No. 2 and No. 3 further make clear that the Mandamus
Petition does not apply to Judge Davis.
Footnote No. 2 sets out: Judge Davis was an original party to the case, but was
dismissed by stipulation of the parties. (Ord. (Ex. D) at 2 n.1. However, this circumstance
totally changed when Judge Granade issued an Order on February 10, 2015, which set out:
Plaintiffs' motion to amend seeks to add three additional same-sex couples as
plaintiffs and to add Don Davis as a defendant in his official capacity as Probate
Judge of Mobile County, Alabama. The current Defendant, Attorney General
Luther Strange does not oppose Plaintiffs' request for leave to file an amended
complaint. (Doc. 43). . . . Plaintiffs seek to join Judge Davis as a defendant
because he allegedly refused to issue marriage licenses to all of the Plaintiffs'
named in the proposed Amended Complaint, despite this court having granted a
preliminary injunction to Strawser and Humphrey (Doc. 29) and despite this
court's ruling in Searcy v. Strange, SDAL Civil Action No. 14-00208-CGN, that
Alabama's laws prohibiting and refusing to recognize same-sex marriage are
unconstitutional. The proposed amendment will not cause undue delay or
prejudice, there is no indication of any bad faith or dilatory motive on the part of
the movants, and the amendment does not appear to be futile. There being no
substantial reason to deny leave to amend, the court must allow the amendment.
Accordingly, Plaintiffs' motion for leave to file an amended complaint is hereby
GRANTED.
Clearly, the premise for the Mandamus Petition is that the Probate Judges are not parties
in the cases before Judge Granade, and since Judge Davis is now a party before Judge Granade,
the Petition for Writ of Mandamus clearly does not apply to Judge Davis.
The Mandamus Petition also specifically sets out: As shown above, Alabama probate
2
judges are not bound by Judge Granade's legal conclusions in either the Searcy or the Strawser
Injunction. The legal authority for this statement is set out in Footnote No. 3 which sets out as
follows:
FN3: No Alabama court is bound by a federal district court's ruling that an
Alabama statute is unconstitutional. See, e.g.. Doe v. Pryor, 344 F.3d 1282, 1286
(11th Cir. 2003) ("The only federal court whose decisions bind state courts is the
United States Supreme Court"); Buist v. Time Domain Corp., 926 So. 2d 290, 297
(Ala. 2005) ("United States district court cases . . . can serve only as persuasive
authority."); cf. Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 748 (Ala. 2009)(noting
"United States district court decisions are not controlling authority in this Court");
Ex parte Hale, 6 So. 3d 452, 462 (Ala. 2008), as modified on denial of rehng (Oct.
10, 2008) ("[W]e are not bound by the decisions of the Eleventh Circuit."); Ex
parte Johnson, 993 So. 2d 875, 886 (Ala. 2008) ("This Court is not bound by
decisions of the United States Courts of Appeals or the United States District
Courts."); Glass v. Birmingham So. R.R., 905 So.2d 789, 794 (Ala. 2004) ("Legal
principles and holdings from inferior federal courts have no controlling effect
here . . ."); Amerada Hess v. Owens-Corning Fiberglass, 627 So. 2d 367, 373 n.1
(Ala. 1993) ("This Court is not bound by decisions of lower federal courts.");
Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 n.2 (Ala. 1991)
("Decisions of federal courts other than the United States Supreme Court, though
persuasive, are not binding authority on this Court.").
However, these decisions cited in Footnote No. 3 do not apply to cases in which a state official,
such as Judge Davis, is directly before the federal court and subject to the personal jurisdiction of
the federal court. When a state official is subject to the jurisdiction of the federal court and the
federal court enters an Order which applies directly to that state official, such as Judge Davis in
this case, then the state official must obey the ruling of the federal court unless a stay has been
granted. There is persuasive authority to support this principle of law in both our state and
federal courts. 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 (2004)
Finally, the Petition for Writ of Mandamus sets out an additional ground which also
supports Judge Davis Response herein:
CERTIFICATE OF SERVICE
I hereby certify that on this the 18th day of February, 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
ATTORNEYS FOR PETITIONER:
Matthew D. Staver
Horatio G. Mihet
5
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
ATTORNEYS FOR RESPONDENT
HON. ALAN L. KING:
Jeffrey M. Sewell
French A. McMillan, LLC
1841 Second Avenue N., Suite 214
Jasper, AL 35501
Phone: (205) 544-2350
jeff@sewellmcmillan.com
French@sewellmcmillan.com
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
ATTORNEYS FOR RESPONDENT
HON. ROBERT MARTIN:
6
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
ATTORNEYS FOR RESPONDENT
HON. STEVEN L. REED:
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
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
7
rmarshall@aclualabama.org
ATTORNEYS FOR CURIAE EAGLE FORUM OF ALABAMA EDUCATION
FOUNDATION AND EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND
L. Dean Johnson
L. Dean Johnson, PC
4030 Balmoral Dr. SW
Huntsville, AL 35801
Phone: (256) 880-5817
dean@ldjpc.com
/s/ Lee L. Hale
OF COUNSEL