Professional Documents
Culture Documents
02/18/2015 @ 05:44:31 PM
Honorable Julia Jordan Weller
Clerk Of The Court
No. 1140460
________________________________________________
IN THE SUPREME COURT OF ALABAMA
________________________________________________
Ex parte State of Alabama ex rel. Alabama Policy Institute
And Alabama Citizens Action Program
(In re: Alan L. King, in his official capacity as Judge Of
Probate for Jefferson County, Alabama, et al.)
_______________________________________________
On Petition for Writ of Mandamus
TABLE OF CONTENTS
Table of Authorities ..............................ii-5
I.
INTRODUCTION ............................1
II.
III.
IV.
V.
VI.
VII.
TABLE OF AUTHORITIES
Case
Ala. DOT v. Harbert Intl, 990 So.2d 831,
848 (Ala. 2008) ...................................2
Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (Ala.
1895) .............................................34
Brogden v. Employees Retirement System, 386 So. 2d 1376,
1379 (Ala. Civ. App. 1976) ........................ 29,30,31
Cadle Co. v. Shabani, 4 So.3d 460, 462-63
(Ala. 2008) .......................................6,7
Chilton County v. Butler, 225 Ala. 191, 142 So. 531 (Ala.
1932) .............................................20
Cotton v. Rutledge, 33 Ala. 110 (Ala. 1958) .......29
Denson v. Bd. of Trustees of Univ. of Ala., 247 Ala. 257,
258, 33 So. 2d 714, 714-15 (1945) .................24
Ex parte Ala. Textile Products Corp., 242 Ala. 609, 613,
7 So. 2d 303, 306 (Ala. 1942) .....................27-31
Ex parte Aull, 149 So.3d 582, 591 (Ala. 2014) .....5-7
Ex parte Barger, 243 Ala. 627, 628, 11 So. 2d 359,
360 (1943) ........................................24
Ex parte Davis, ___ So.3d ___, 2015 Ala. LEXIS 16, *9, *14
(Ala. 2015) .......................................3,35
Ex parte Du Bose, 54 Ala. 278, 280-281 (Ala. 1875) 32,33
Ex parte Ferrari, ___ So.3d ____, 2015 Ala.
LEXIS 13, *16 (Ala. 2015) .........................32
Ex parte Giles, 133 Ala. 211, 212, 32 So. 167 (1902) .... 24
Ex parte Jim Walter Res., Inc., 91 So. 3d 50
Ala. 2012) ........................................27
ii
TABLE OF AUTHORITIES
(Continued)
Ex parte King, 50 So.3d 1056, 1059-60 (Ala. 2010) .
..................................................6,8,14
Ex parte Morgan, 259 Ala. 649, 651, 67 So. 2d
889, 890 (1953) ...................................24
Ex parte Pearson, 76 Ala. 521, 523 (1884) .........25
Ex parte Price, 252 Ala. 517, 41 So. 2d 180
(Ala. 1949) .......................................25
Ex parte Richey, 255 Ala. 150, 157, 50 So. 2d 441,
447 (1951) ........................................24
Ex parte Russell, 29 Ala. 717 (Ala. 1857) .........25
Ex parte Sasser, 730 So. 2d 604, 605 (Ala. 1999) .. 2
Ex parte Stover, 663 So.2d 948, 951 (Ala. 1995) ...38
Ex parte Town of Valley Grande, 885 So. 2d 768,
770 Ala. 2004) ...................................26
Ex parte Tubbs, 585 So. 2d 1301, 1302
(Ala. 1991) .......................................24
Franks v. Norfolk Southern Railway Co., 679 So. 2d
214, 216 (Ala. 1996) ..............................27
Hollingsworth v. Perry, 133 S.Ct. at 2662 .........10-18
Hunt v. Washington State Apple Advertising Commn,
432 U.S. 342-43 (1977) ................................ 15
Jones v. Black, 48 Ala. 540, 543 (Ala. 1872) .......... 15
Kendrick v. State, 256 Ala. 206, 213, 54 So.2d 442,
447 (Ala. 1951) ..................................... 20-23
Kids Care, Inc. v. Alabama Dept of Human Resources, 843
So.2d 164, 165 (Ala. 2002) ........................7,8,14
iii
TABLE OF AUTHORITIES
(continued)
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
(1992) ............................................6
Merchants Nat'l Bank v. Morris, 273 Ala. 117, 120
(Ala. 1961) .......................................2
Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
811-12 (1985)..........................................39
Statutes
Ala. Code 12-2-7(3) ...............................24
Ala. Code 12-11-30(4) ...........................26
Ala. Code 12-2-7(2) .............................25-26
42 U.S.C. 1988 ..................................36
Rules
Ala. R. Civ. P. 9(h)...................................37-38
I.INTRODUCTION.
The petition should be dismissed for several reasons,
including that Petitioners have no standing and are not
otherwise proper parties to bring this action on behalf of
the State, that there is no original subject matter
jurisdiction in this Court, and that the prerequisites to
the grant of the requested writ are not satisfied.
arguments are addressed below.
Those
The
And it is
The
Ala. DOT v. Harbert Intl, 990 So.2d 831, 848 (Ala. 2008)
(Murdock, J., concurring specially).
So.3d ___, 2015 Ala. LEXIS 16, *9, *14 (Ala. 2015) (Bolin,
J., concurring).
If a Probate Judge followed this Courts order (of the
sort that the Petition seeks), a Probate Judge would
subject himself to suit in federal district court, which
would in turn lead to much expenditure of public funds: not
only funds for the defense of the case, but in all
likelihood an award of attorneys fees to any plaintiff
under 42 U.S.C. 1988.
E.g.,
Cadle Co. v.
omitted).
E.g.,
E.g., Cadle
10.
Id. at 10.
ALCAPs
Id.
Id. at 1255.
Id. at
10
133 S.Ct.
11
Hollingsworth, 133
Id.
One can
But, [t]he
omitted).
Even if petitioners full-throated but generalized
interest in the enforcement of the Alabama marriage statute
and marriage amendment were a legally protected right,
e.g., Town of Cedar Bluff, 904 So.2d at 1256, their
petition fails to show that interest was injured in fact.
12
See
Petition, at 10.
13
Nothing in petitioners
first made clear over 150 year ago, for standing to exist,
injury will not be presumed; it must be shown. 8
E.g.,
This petitioners
15
At
But,
As a
If
Id.
To hold
value interests.
But, [n]o
Id.
(quotations omitted).
In sum, even if petitioners had identified any legally
protected interest in defending the validity of Alabamas
same-sex marriage ban, they have failed to allege how any
such interest was harmed by lifting of the same-sex
marriage ban; how they personally were harmed; or how an
order of this Court reinstating Alabamas ban would remedy
any such harm to either petitioners personal interest.
Petitioners have not alleged, and cannot show, that they
suffered a concrete and particularized injury-in-fact; the
injury to their personal interest is fairly traceable to
the respondents probate judges challenged acts; or it is
likely that their injury-in-fact will be redressed by a
favorable ruling, i.e., any of the elements required to
demonstrate their standing.
19
If the case
442, 447 (Ala. 1951); see also, e.g., State ex rel. Chilton
County v. Butler, 225 Ala. 191, 142 So. 531 (Ala. 1932).
Petitioners argue that they may bring this case in an
ex rel capacity because the public has an interest in
the marriage laws and how they are enforced.
21).
(Petition, at
When a
10
given what has been said above, the Court should not have
to reach it.
this Court.
period.
Ala. R. Civ. P.
528, 531, 253 So.2d 35, 37 (Ala. 1971) (noting, even before
the Rules of Civil Procedure, that the relator is the real
party in interest).
supervision
jurisdiction.
and
control
of
courts
of
inferior
This
This
157, 50 So. 2d 441, 447 (1951); Ex parte Price, 252 Ala. 517,
41 So. 2d 180 (Ala. 1949); Ramaguano v. Crook, 88 Ala. 450,
451, 7 So. 247 (1890); Ex parte Russell, 29 Ala. 717 (Ala.
1857); see also, Ex parte Pearson, 76 Ala. 521, 523 (1884):
By statute, this court is impliedly prohibited
from exercising original jurisdiction in the issue
and determination of writs of mandamus, in relation
to
matters
of
which
any
other
court
has
jurisdiction; and from issuing remedial and original
writs, in the exercise of appellate jurisdiction,
except when necessary to give it a general
superintendence
and
control
of
inferior
jurisdictions. [Citation omitted]
And by Section
657, the Circuit Court has authority to exercise a
general
superintendence
over
all
inferior
jurisdictions. By the statutes, the Circuit or City
Court has jurisdiction of the matter; a general
superintendence over the Probate Court of Montgomery
county. The issue of a mandamus directly from this
court, to the Probate Court, is not necessary to
give a general superintendence and control. Such
superintendence and control are acquired by an
appeal from the judgment of the judge of the Circuit
or City Court, as the case may be, on application
for the writ of mandamus. For these reasons, the
application must be dismissed.
Under these cases, this Court does not have or at least
should not exercise jurisdiction here.
This Court also has authority to exercise original
jurisdiction in the issuance and determination of writs of
mandamus in relation to matters in which no other court has
jurisdiction.
Further,
exercise
inferior
court
its
by
general
appeal,
the
superintendence
circuit
court
over
has
an
the
245 Ala. 528, 531, 17 So. 2d 771, 772 (1944) ([O]rders and
decrees
[of
the
probate
court]
not
within
the
statute
refer
provisions
to
the
that
empower
circuit
courts
to
Specifically,
exception
was
in
held
Ala.
to
Textile
justify
Products,
this
Courts
this
narrow
exercise
of
Id. at 614.
Such
Ala.
Textile
Products
presented
unique
law
would
with
justify
state-wide
the
application,
filing
of
Petitioners
request
for
an
Bypassing the
commonplace.
Petitioners
request
This
to
Court
exercise
should
not
honor
jurisdiction
based
the
on
Textile Products.
2.
the circuit courts would have jurisdiction and that this Court
has none. This alternative argument proceeds from the premise
that issuing marriage licenses is an administrative, not a
judicial, act.
As
over
and
inferior
officers
judicial
exercising
bodies,
judicial
boards,
powers.
Id.
the
circuit
courts
general
29
jurisdiction,
whereas
Id.
of
issuing
and
denying
marriages
licenses
are
action
for
declaratory
judgment
regarding
the
of
the
circuit
court.
The
supervisory
Id.
at 1380.
Moreover, because the case falls within the general
jurisdiction
of
the
circuit
courts,
this
Court
has
no
See
2014)
jurisdiction
(Supreme
to
issue
Court
writs
does
against
not
have
State
original
officers
and
Because there is
The
Petitioners
have
failed
to
properly
invoke
the
The
Ex parte
Ferrari, ___ So.3d ____, 2015 Ala. LEXIS 13, *16 (Ala.
2015).
On the contrary, it
(Petition, p. 22).
But improperly,
48, 49, 19 So. 917, 918 (Ala. 1895) (the duty of issuing
marriage licenses under our statutes by the probate judge,
though ministerial, is a duty involving discretion,
official and personal).
(3)
(4)
35
36
12
38
And,
41
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I efiled the foregoing with the
Clerk of the Court on this 18th day of February, 2015 and I
have served the following counsel of record by email:
Attorneys for Petitioner
Mathew D. Staver
Email: mstaver@LC.org
Email: court@LC.org
Horatio G. Mihet
Roger K. Gannam
Email: rgannam@LC.org
LIBERTY COUNSEL
s/Robert D. Segall
Of Counsel
43