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2:13-cv-00922 #54

2:13-cv-00922 #54

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Published by Equality Case Files
Doc 54 - Plaintiff's reply to defendants' opposition to first motion to compel
Doc 54 - Plaintiff's reply to defendants' opposition to first motion to compel

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Published by: Equality Case Files on Aug 08, 2014
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08/14/2014

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
PAUL HARD, Plaintiff, v. ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama; LUTHER JOHNSON STRANGE, III, in his official capacity as Attorney General of the State of Alabama; PAT FANCHER; Defendants. Civil Action No. 2:13-cv-922-WKW
PLAINTIFF’S REPLY TO STATE DEFENDANTS’ OPPOSITION TO PLAINTIFF’S FIRST MOTION TO COMPEL
 The State Defendants’ (the Governor and Attorney General’s) Opposition (No. 49) to Plaintiff’s First Motion To Compel (No. 46) posits three reasons why they should be exempt from responding to Plaintiff’s second interrogatory. This interrogatory, which is the only subject of the Motion To Compel, asks the State Defendants to identify any government interest supporting Alabama’s legal requirement that sex education “shall, as a minimum, include and emphasize” . . . “in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state.” Ala. Code § 16-40A-2 (“the anti-gay sex education law”). The reality that the State Defendants lack any valid purpose for this law should not excuse them from answering Interrogatory 2. In particular, the State Defendants claim: (1) they are unable to comment, in their official capacity, as to the purpose of the anti-gay sex education law because they lack authority to do so;
Case 2:13-cv-00922-WKW-SRW Document 54 Filed 08/07/14 Page 1 of 8
 
2 (2) Interrogatory 2 cannot lead to the discovery of relevant information because the anti-gay sex education law is wholly unrelated to the anti-gay marriage laws challenged in this lawsuit (the Sanctity Laws); and (3) the State Defendants have no way of knowing what motivated the legislature to enact the anti-gay sex education law (a matter about which Interrogatory 2 does not inquire). None of those reasons is sufficient to defeat the State Defendants’ obligation to respond to Interrogatory 2. The Court should grant the Motion To Compel.
I.
 
The State Defendants Are Empowered To Respond to Interrogatory 2.
First, it simply is not true that the State Defendants are, in their official capacities, as Defendants in this lawsuit, unable to respond to Interrogatory 2 for lack of authority. The Attorney General is statutorily designated to litigate cases on behalf of state officers, including the Governor, sued in their individual capacities, such as in the present case. Ala. Code § 36-15-1(2) (The Attorney General “shall appear in the courts of . . . the United States, in any case in which the state may be interested in the result.”); Ala. Code § 36-15-12 (“The Attorney General is authorized to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state.”). The Attorney General’s “powers, duties, and authority heretofore granted or authorized by the constitution, statutory law, or the common law” are, according to statute, broadly construed. Ala. Code § 36-15-1.1 (“Nothing contained in this article shall be construed so as to in any way restrict, limit or abridge the powers, duties, or authority of the Attorney General as heretofore authorized by the constitution, statutory law, or the common law.”); Mobil Oil Corp. v. Kelley, 353 F. Supp. 582, 586 (S.D. Ala. 1973) aff’d, 493 F.2d 784 (5th Cir. 1974) (“The Attorney General . . . has wide discretion in determining what actions he should take” in
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3 litigation and “[t]he actions taken by him in the case at hand were an exercise of that discretion and in fulfillment of the duties of the office.”); McDowell v. State, 243 Ala. 87, 89, 8 So. 2d 569, 570-71 (1942) (confirming that the express statutory authority of the Attorney General to litigate on behalf of the state or its officers, such as the Governor, includes “the implied authority to do all things necessary and proper to their final conclusion”). The statutory authority to litigate on behalf of the State’s interests surely encompasses the authority to respond to legitimate discovery requests, such as Interrogatory 2. Foreclosing the possibility of any doubt as to that authority, the Attorney General has a specific statutory duty to provide his “opinion in writing, or otherwise, on any question of law connected with the interests of the state or with the duties of any of the departments, when required by the Governor.” Ala. Code § 36-15-1(1)(a). Moreover, the Attorney General is statutorily authorized to provide a legal opinion or advice to practically any government officer in Alabama at the state, county, or municipal level to assist that person in the “performance of some official act that the officer or governing body must perform.” Ala. Code § 36-15-1(1)(c). The statute clarifies as the outer boundary merely that the Attorney General is not to provide such opinion or advice to a government officer for “private or personal questions.” Ala. Code § 36-15-1(1)(d). The Attorney General, moreover, need not wait for a request but is statutorily enabled as a core aspect of his duties to “carefully examine all of the general statutes now in force, or which hereafter may be enacted by the Legislature from time to time, as to their clarity and constitutional validity” and “make a report in writing to the Governor” . . . concerning Alabama laws that may bear correction due to constitutional infirmity or other reasons. Ala. Code §§ 36-15-1(7)-(8).
Case 2:13-cv-00922-WKW-SRW Document 54 Filed 08/07/14 Page 3 of 8

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