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1:14-cv-00208 #28

1:14-cv-00208 #28

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Published by Equality Case Files
Doc 28 - Reply in support of dismissing claims against Governor Bentley
Doc 28 - Reply in support of dismissing claims against Governor Bentley

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Published by: Equality Case Files on Jun 28, 2014
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10/23/2014

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
CARI. D. SEARCY and KIMBERLY MCKEEAND, individually and as  parent and next friend of K.S., a minor,
 Plaintiffs,
 v. ROBERT BENTLEY, individually and in his official capacity as Governor of the State of Alabama,
et al.
,
 Defendants
. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:14-cv-208
REPLY BRIEF OF DEFENDANTS STRANGE AND BENTLEY IN SUPPORT OF THEIR MOTION TO DISMISS (doc. 17)
 Defendants Robert Bentley, Governor, and Luther Strange, Attorney General, respectfully submit this reply brief in support of their motion to dismiss the claims against Governor Bentley (doc. 17). In Plaintiffs’ reply to Defendants’ motion, Plaintiffs state that they intend to dismiss the individual capacity claims against Strange and Bentley, and they make no other response regarding such claims (see doc. 27). Defendants therefore will not address the individual capacity claims further. As for the official capacity claims against Governor Bentley, Plaintiffs argue that he is a necessary party (and that plaintiffs have standing to raise such claims against Governor Bentley) because the Governor (i) possesses the statutory right
Case 1:14-cv-00208-CG-N Document 28 Filed 06/27/14 Page 1 of 6
 
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under Alabama law to file lawsuits and intervene in legal actions, and (ii) is the State’s chief executive officer. Neither ground is sufficient to make the Governor a  proper defendant. The Governor’s role as chief executive officer was addressed in Defendants’ motion. That status alone does not give the Governor a sufficiently direct role in enforcement of marriage laws to overcome his Eleventh Amendment Immunity.
See Summit Med. Assocs. V. Pryor 
, 180 F.3d 1326, 1341 (11
th
 Cir. 1999) (holding that making a state officer a defendant when the officer lacks connection with enforcement of the challenged law is an attempt to make the
State
 a party);
 Women’s Emergency Network v. Bush
, 323 F.3d 937, 949 (11
th
 Cir. 2003) (a  plaintiff may sue state officers “only when those officers are ‘responsible for’ a challenged action and have ‘some connection’ to the unconstitutional act at issue.”). If the Governor’s role as chief executive officer were enough to make him a  proper defendant, then he could be sued in any lawsuit challenging any state statute. That plainly is not the law.
See C.M. ex rel. Marshall v. Bentley
, No. 2:13-CV-591-WKW, 2014 WL 1378432 at *13-14 (M.D. Ala. April 8, 2014) (dismissing claims against the Governor on similar arguments). Concerning Plaintiffs’ other argument, it is true that the Governor may appear in cases involving the State. The Legislature has provided that
Case 1:14-cv-00208-CG-N Document 28 Filed 06/27/14 Page 2 of 6
 
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[w]henever, in his judgment, it is expedient or necessary, the Governor may employ an attorney or attorneys to advise him in his official capacity, or to institute, conduct or appear in any court or in any civil or criminal case in which the state is interested and to agree with such counsel on his compensation. Ala. Code § 36-13-2. Thus, had the Governor not been sued in this case, he could choose to appear and assert his own arguments. But just because he could appear does not mean that the Governor must appear. If so, then (as with Plaintiffs’ other argument) the Governor could be made a defendant in any case involving a state statute, contrary to the authorities cited in Defendants’ motion. Plaintiffs nonetheless argue that this right to appear in litigation makes the Governor a “necessary party.” It does not. One is a necessary party only if the court cannot accord complete relief without him, or if he claims an interest in the litigation and disposing of the litigation in his absence (i) impedes his ability to  protect the interest or (ii) places existing parties at risk of inconsistent obligations. Fed.R.Civ.P. 19(a). Here, the court may accord complete relief without the Governor. Whatever the outcome of this case, once any appeal is final, the judgment will apply throughout the State. The fact that the Governor may appear does not put the Plaintiffs at risk of inconsistent judgments. His appearance, should he choose to do so, would occur
Case 1:14-cv-00208-CG-N Document 28 Filed 06/27/14 Page 3 of 6

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