E-Filed

02/23/2015 @ 10:41:34 AM
Honorable Julia Jordan Weller
Clerk Of The Court

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
Chilton County, Alabama,
TOMMY RAGLAND, 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,

REPLY BRIEF OF PETITIONER

Respondents.
_________________________________/
Mathew D. Staver
Fla. Bar No. 0701092
mstaver@LC.org
court@LC.org

Horatio G. Mihet
Fla. Bar No. 0026581
hmihet@LC.org

Roger K. Gannam
Fla. Bar No. 240450
rgannam@LC.org
LIBERTY COUNSEL

P.O. BOX 540774

Orlando, FL 32854-0774
(800)671-1776
(407)875-0770 FAX
Admitted pro hac vice

A. Eric Johnston (ASB-2574-H38A)

eric@aericjohnston.com
Suite 107
1200 Corporate Drive
Birmingham, AL 35242
(205)408-8893
(205)408-8894 FAX
Samuel J. McLure (MCL-056)
sam@theadoptionfirm.com
The Adoption Law Firm
PO Box 2396
Montgomery, AL 36102
(334)612-3406
Attorneys for Petitioner

TABLE OF CONTENTS
TABLE OF CONTENTS ......................................... i
TABLE OF AUTHORITIES .................................... iii
PRELIMINARY STATEMENT ................................... vii
INTRODUCTION AND SUMMARY OF ARGUMENT ...................... 1
ARGUMENT .................................................. 3
I.

RELATORS HAVE STANDING UNDER THE PUBLIC INTEREST

STANDING RULE WHICH IS WELL-SETTLED IN ALABAMA AND
THROUGHOUT THE UNITED STATES. ........................ 3

II. RELATORS PROPERLY BRING THIS ACTION IN THE NAME OF

THE STATE TO ENFORCE A DUTY OWING TO THE PUBLIC. .... 17
A. The duty of a probate judge to issue marriage
licenses in accordance with Alabamas marriage
laws is a duty owing to the public. .............. 17
B. The duty of a probate judge to issue marriage
licenses in accordance with Alabamas marriage
laws is not a duty owing to government. .......... 22
III.THIS COURTS JURISDICTION IS PROPERLY INVOKED UNDER
CLEAR PRECEDENT. .................................... 28
A. This Court has original jurisdiction over a
mandamus petition directed to a judge of probate
to command performance of a ministerial duty. .... 28
B. This Court may exercise jurisdiction to issue a
supervisory writ to any inferior court when
necessary to afford full relief and do complete
justice. ......................................... 31
IV. RELATORS ARE ENTITLED TO MANDAMUS RELIEF. ........... 38
A. The Petition is procedurally complete. ........... 38
B. Respondents arguments for dismissal of the
Petition are based on fallacies. ................. 41
i

CONCLUSION ............................................... 48
CERTIFICATE OF SERVICE ................................... 49
ATTACHMENTS
Verification of Katherine Robertson ............. Exhibit A
Verification of Joseph Godfrey .................. Exhibit B
Verification of Roger K. Gannam ................. Exhibit C

ii

TABLE OF AUTHORITIES
CASES
Alabama Alcoholic Beverage Control Bd. v. HenriDuval
Winery, L.L.C., 890 So. 2d 70 (Ala. 2003) ... 4,5,6,7,14,15
Anzalone v. Admin. Office of Trial Court,
932 N.E.2d 774 (Mass. 2010) ............................ 10
Ashley v. State,
19 So. 917 (1896) ...................................... 30
Bryce v. Burke,
55 So. 635 (Ala. 1911) ............................... 4,14
Conde-Vidal v. Garcia-Padilla,
No. 14-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014) .... 44
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014) ........................ 19,44
Denson v. Bd. of Trustees of Univ. of Ala.,
23 So. 2d 714 (Ala. 1945) .............................. 37
Ex parte Ackles,
840 So. 2d 145 (Ala. 2002) ............................. 39
Ex parte Alabama Textile Products Corp.,
7 So. 2d 303 (Ala. 1942) ................ 32,33,34,35,36,37
Ex parte Barger,
11 So. 2d 359 (Ala. 1942) .............................. 37
Ex parte Collins,
84 So. 3d 48 (Ala. 2010) ............................ 38,39
Ex parte Jim Walter Resources, Inc.,
91 So. 3d 50 (Ala. 2012) ...................... 28,29,30,31
Ex parte Johnson,
485 So. 2d 1098 (Ala. 1986) ............................ 38
Ex parte King,
50 So. 3d 1056 (Ala. 2010) ........................... 6,14
iii

Ex parte Tubbs,
585 So. 2d 1301 (Ala. 1991) ............................ 37
Florida Indus. Com'n v. State ex rel. Orange State Oil Co.,
21 So. 2d 599 (Fla. 1945) .............................. 11
Gordon v. State ex rel. Cole,
185 So. 889 (Ala. 1939) ................................ 39
Gray v. State ex rel. Garrison,
164 So. 293 (Ala. 1935) ................................ 20
Hector F. v. El Centro Elementary Sch. Dist.,
173 Cal. Rptr. 3d 413 (Cal. Ct. App. 2014) ........... 9,10
Homan v. State ex rel. Smith,
89 So. 2d 184 (Ala. 1956) ......................... 4,20,21
Jackson Sec. & Inv. Co. v. State,
2 So. 2d 760 (Ala. 1941) ............................... 16
Jones v. Black,
48 Ala. 540 (1872) .................................... 5,6
Kendrick v. State ex rel. Shoemaker,
54 So. 2d 442 (Ala. 1951) ............. 4,12,13,14,15,20,27
Lockhart v. Fretwell,
506 U.S. 364 (1993) .................................... 46
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ..................................... 6
Marone v. Nassau Cnty.,
967 N.Y.S.2d 583 (Sup. Ct. 2013) ................... 8,9,16
Marshall County Bd. Educ. v. State ex rel. Williams,
42 So. 2d 24 (Ala. 1949) ............................... 21
Maynard v. Hill,
125 U.S. 190 (1888) .................................... 18
Morrison v. Morris,
141 So. 2d 169 (Ala. 1962) ..................... 4,22,25,26
iv

Muhammad v. Ford,
986 So.2d 1158 (Ala. 2007) .............................. 6
ProgressOhio.org, Inc. v. JobsOhio,
973 N.E.2d 307 (Ohio Ct. App. 2012) .................... 10
Protect MI Constitution v. Sec'y of State,
824 N.W.2d 299 (Mich. Ct. App. 2012) ................... 10
Robicheaux v. Caldwell,
2 F. Supp. 3d 910 (E.D. La. 2014) ...................... 44
Rodgers v. Meredith,
146 So. 2d 308 (Ala. 1962) .................... 11,12,14,20
Rogers v. Hechler,
348 S.E.2d 299 (W.V. 1989) ............................. 10
Save the Plastic Bag Coal. v. City of Manhattan Beach,
254 P.3d 1005 (Cal. 2011) .............................. 16
Skinner v. State of Okla. ex rel. Williamson,
316 U.S. 535 (1942) .................................... 18
Southern LNG, Inc. v. MacGinnitie,
755 S.E.2d 683 (Ga. 2014) .............................. 10
State ex rel. Chilton County v. Butler,
142 So. 531 (Ala. 1932) .................... 22,23,24,25,26
State ex rel. Cittadine v. Indiana Dep't of Transp.,
790 N.E.2d 978, 983 (Ind. 2003) ....................... 7,8
State ex rel. Clark v. Johnson,
904 P.2d 11 (N.M. 1995) ................................ 10
State ex rel. Foshee v. Butler,
142 So. 533 (Ala. 1932) ............................. 24,25
State ex rel. Kansas City Power & Light Co. v. McBeth,
322 S.W.3d 525 (Mo. 2010) .............................. 10
State ex rel. Ohio Motorists Ass'n v. Masten,
456 N.E.2d 567 (Ohio Ct. App. 1982) .................... 16
v

Stumes v. Bloomberg,
551 N.W.2d 590 (S.D. 1996) ............................. 10
Town of Cedar Bluff v. Citizens Caring for Children, 904
So. 2d 1253 (Ala. 2004) ............................... 5,6
Wells v. Purcell,
592 S.W.2d 100 (Ark. 1979) .......................... 10,11
CONSTITUTIONAL PROVISIONS
Art. I, 36.03, Ala. Const. 1901 .................. 17,20,35
Art. VI, 140, Ala. Const. 1901 ......................... 32
STATUTES
6-6-640, Ala. Code 1975 ................................ 38
10A-1-2.11, Ala. Code 1975 ............................. 16
12-2-7, Ala. Code 1975 ................................. 32
12-22-21, Ala. Code 1975 ............................ 29,30
30-1-19, Ala. Code 1975 ............................. 17,20
OCGA 9624 ............................................ 10
RULES
Ala. R. App. P. 21 ....................................... 38
Ala. R. Evid. 201 ........................................ 40

vi

PRELIMINARY STATEMENT
The Emergency Petition for Writ of Mandamus commencing
this case, and in support of which this Reply Brief is filed,
will be referred to herein as the Petition. Capitalized
terms used but not otherwise defined herein will have the
same meanings ascribed to them in the Petition.
Respondents King and Raglands Joint Answer and Brief in
Support in Response to Petition for Writ of Mandamus will be
referred to herein as the King-Ragland Answer.
The Answer and Brief of Respondent Robert M. Martin will
be referred to herein as the Martin Answer.
The Answer and Brief of Respondent Steven L. Reed will
be referred to herein as the Reed Answer.

vii

INTRODUCTION AND SUMMARY OF ARGUMENT

This Petition has generated an impressive pile of paper,
both in this Court and in the United States District Court
for the Southern District of Alabama.1

Nevertheless, the

basic premise of the Petition remains straightforward and

essentially

undisputed:

until

court

of

competent

jurisdiction purports to require otherwise, Alabama probate

judges have no discretion to violate the law of Alabama,
the Constitution of Alabama, and the clearly expressed will
of the People of Alabama.
Respondents are not parties to the federal court case
that purported to invalidate Alabamas marriage laws and
Constitution, and they do not dispute that the federal court
has no jurisdiction over them.2 As such, Respondents have no

After being served with this Petition, Respondent Judge King

filed an Emergency Motion to Intervene in the federal
litigation that gives rise to this controversy, and asked
federal judge Callie Granade to require the dismissal of the
instant Petition in this Court. Strawser v. Strange, Case No.
14-cv-00424 (S.D. Ala., dkts. 58, 59). That court denied his
request, as well as a similar request by plaintiffs in that
case. Id. at dkts. 66, 67).
1

Since the filing of this Petition, one Alabama probate

judge, Don Davis, was made a party to the federal Strawser
litigation, and subjected to that courts orders. Judge Davis
is not a respondent to this Petition. The Petition seeks
2

more discretion to follow the non-binding hypotheses of

that court any more than they could follow the courts of
Hawaii,

Massachusetts

or

Timbuktu.

If

Respondents

are

inclined to follow the recommendations of federal courts in

cases to which they are not parties, they could follow those
federal courts both trial and appellate that have upheld
the

constitutionality

of

natural,

man-woman

marriage,

consistent with the Alabama Constitution and law.

Respondents,

however,

do

not

want

to

follow

those

decisions. They also do not want the Court to reach the merits
of this Petition, and thus they raise

myriad procedural

objections to avoid this Courts scrutiny of their unlawful

conduct. None have merit.
This Court has repeatedly recognized the standing of
Alabama citizens to seek via mandamus the enforcement of an
officials public duties on matters of public concern. This
is the well-settled law not only in Alabama but in numerous
other jurisdictions. Tellingly, Respondents ignore this large
body of law altogether, and instead devote the bulk of their

relief against all other probate judges who are not subject
to any order from any court of competent jurisdiction.
2

responses to a different set of standing requirements which

has no application in this context.
Moreover,
unanimously

only

held

three

that

it

short
has

years

original

ago

this

jurisdiction

Court
over

extraordinary writ applications to require probate judges to

perform their ministerial duties. Respondents either ignore
this precedent or implicitly ask this Court to overrule it,
for no good reason.
At the end of the day, there are no procedural roadblocks
for this Court to reach the merits of this Petition, to grant
the requested relief, and to return the rule of law to
Alabama. Relators respectfully request the Court to issue the
writ.
ARGUMENT
I.

RELATORS HAVE STANDING UNDER THE PUBLIC INTEREST STANDING

RULE WHICH IS WELL-SETTLED IN ALABAMA AND THROUGHOUT THE
UNITED STATES.
The rule of public interest standing, sometimes referred

to as the public interest exception, is

well-settled in

Alabama and throughout the United States. Under this standing

principle, Relators have standing to bring this mandamus
petition, in the name of the State, to compel Respondents to
perform their public duties:

It is now the settled rule in Alabama that

a mandamus proceeding to compel a public
officer to perform a legal duty in which
the
public
has
an
interest,
as
distinguished
from
an
official
duty
affecting a private interest merely, is
properly brought in the name of the State
on the relation of one or more persons
interested in the performance of such duty
to the public . . . .
Kendrick v. State ex rel. Shoemaker, 54 So. 2d 442, 447 (Ala.
1951); see also Morrison v. Morris, 141 So. 2d 169, 170 (Ala.
1962) (same); Homan v. State ex rel. Smith, 89 So. 2d 184,
186 (Ala. 1956) (same). Indeed, this has been well-settled in
Alabama for over 100 years: There is no doubt that, where
the writ is sued out to require the performance of a definite
duty to the public, the proceeding must proceed in the name
of the state as plaintiff. Bryce v. Burke, 55 So. 635, 638
(Ala. 1911) (emphasis added).
Though Respondents walk arm-in-arm down the primrose path
of injury in fact (King-Ragland Ans. at 7-14; Martin Ans. at
8-16; Reed Ans. at 4-19.), under the general standing rule,
this Court must not follow their lead. As an initial matter,
this Court did not fundamentally change the law of standing
in Alabama in 2003 when it adopted the federal formulation of
the general standing rule focusing on injury. See Alabama
Alcoholic Beverage Control Bd. v. HenriDuval Winery, L.L.C.,
4

890 So. 2d 70, 74 (Ala. 2003). Rather, the Court effectively

restated the standard . . . using language adopted from the
Supreme Court of the United States. Town of Cedar Bluff v.
Citizens Caring for Children, 904 So. 2d 1253, 1256-57 (Ala.
2004) (emphasis added). The Cedar Bluff Court explained the
development as follows:
In Jones v. Black, 48 Ala. 540 (1872), this
Court
first
articulated
a
test
for
determining whether a party has the
necessary
standing
to
challenge
the
constitutionality
of
an
act
of
the
Legislature. We stated then:
A party who seeks to have an act of the
legislature declared unconstitutional,
must not only show that he is, or will
be injured by it, but he must also show
how and in what respect he is or will be
injured and prejudiced by it. Injury
will not be presumed; it must be shown.
48 Ala. at 543. In Alabama Alcoholic
Beverage Control Board v. HenriDuval
Winery, LLC, 890 So.2d 70, 74 (Ala. 2003),
a party challenged the constitutionality
of Alabama's Native Farm Winery Act, 28
61 et seq., Ala. Code 1975. In that case,
this
Court
effectively
restated
the
standard articulated in Jones, using
language adopted from the Supreme Court of
the United States:
A party establishes standing to bring
a challenge [on constitutional grounds]
when it demonstrates the existence of
(1)
an
actual,
concrete
and
particularized injury in factan
invasion
of
a
legally
protected
5

interest; (2) a causal connection

between the injury and the conduct
complained of; and (3) a likelihood
that the injury will be redressed by a
favorable decision. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 56061
(1992).
904 So. 2d at 1256-57 (second emphasis in original).
By comparing this Courts own standing formulation from
1872s Jones v. Black (focusing on injury), with the adopted,
three-pronged formulation from the federal case Lujan v.
Defenders of Wildlife (focusing on injury), the Cedar Bluff
Court

showed

that

this

was

no

seismic

shift

in

Alabama

standing law.3 The Court simply used the federal formulation

to state its own entrenched standing law more precisely. See
Ex parte King, 50 So. 3d 1056, 1059 (Ala. 2010) ([I]n 2003
this Court adopted the . . . more precise[] rule regarding
standing based upon the test used by the Supreme Court of the
United States . . . .); Muhammad v. Ford, 986 So.2d 1158,
1162 (Ala. 2007) (In [HenriDuval] this Court adopted a more
precise rule regarding standing articulated by the United
States Supreme Court . . . .).

Unlike the instant case, the Cedar Bluff standing

analysis was in the context of a declaratory challenge to the
constitutionality of a state statute. 904 So. 2d at 1255.
3

What this Court did not do in Henri-Duval in 2003, and

has not done since, is abolish the equally entrenched standing
rule

applicable

in

mandamus

cases

seeking

to

compel

performance of a public duty. To be sure, the rule is well

known in the modern law of other states, variously referred
to

as

the

public

standing

exception,

public

standing

doctrine, public interest standing, etc. For example, the

Indiana Supreme Court in 2003 concluded, after surveying the
laws

of

numerous

accordant

states,

The

public

standing

doctrine, which applies in cases where public rather than

private rights are at issue and in cases which involve the
enforcement of a public rather than a private right, continues
to be a viable exception to the general standing requirement.
State ex rel. Cittadine v. Indiana Dep't of Transp., 790
N.E.2d 978, 983 (Ind. 2003) (emphasis added). In affirming
the viability of the rule, the court explained:
Under our general rule of standing, only
those persons who have a personal stake in
the outcome of the litigation and who show
that they have suffered or were in
immediate danger of suffering a direct
injury as a result of the complained-of
conduct will be found to have standing.
Absent this showing, complainants may not
invoke the jurisdiction of the court. It
is generally insufficient that a plaintiff
merely has a general interest common to all
members of the public.
7

[Relator] seeks to avoid this general rule

by invoking the public standing exception.
He does not contend that he has suffered a
specific injury, but argues that, because
the object of the mandate is to procure
the enforcement of a public duty, he has
standing under Indiana's public standing
doctrine. As we recently noted in Schloss:
Indiana
cases
recognize
certain
situations in which public rather than
private rights are at issue and hold
that
the
usual
standards
for
establishing standing need not be met.
This Court held in those cases that when
a case involves enforcement of a public
rather
than
a
private
right
the
plaintiff need not have a special
interest in the matter nor be a public
official.
Specifically, the public standing doctrine
eliminates
the
requirement
that
the
relator have an interest in the outcome of
the litigation different from that of the
general public.
The public standing doctrine has been
recognized in Indiana case law for more
than one hundred and fifty years.
Id.

at

979-80

(second

emphasis

in

original)

(citations

omitted).
More recently, the historical yet still vital public
interest standing was invoked in a 2013 New York mandamus
proceeding:
However, in matters of great public
interest, a citizen may maintain a mandamus
proceeding to compel a public officer to
8

do his or her duty. The office which the

citizen
performs
is
merely
one
of
instituting a proceeding for the general
benefit, the only interest necessary is
that of the people at large. One who is a
citizen,
resident
and
taxpayer
has
standing to bring an Article 78 proceeding
for the performance by officials of their
mandatory duties, even without a personal
grievance or a personal interest in the
outcome. The public interest standing of a
citizen has been extended to corporations
as well as other organizations.
In fact, as far back as the Nineteenth
Century, the Court of Appeals held, the
writ of mandamus may, in a proper case,
and in the absence of an adequate remedy
by action, issue . . . on the relation of
one, who, in common with all other
citizens, is interested in having some act
done, of a general public nature, devolving
as a duty upon a public officer or body,
who refuse to perform it.
Marone v. Nassau Cnty., 967 N.Y.S.2d 583, 589 (Sup. Ct. 2013)
(emphasis added) (internal quotations and citations omitted).
Still more recently, the California Court of Appeals
affirmed the vitality of the public interest exception in
2014:
It is true that ordinarily the writ of
mandate will be issued only to persons who
are beneficially interested. Yet, in
[1945, the California Supreme Court]
recognized an exception to the general rule
where the question is one of public right
and the object of the mandamus is to
procure the enforcement of a public duty,
the relator need not show that he has any
9

legal or special interest in the result,

since it is sufficient that he is
interested as a citizen in having the laws
executed and the duty in question enforced.
The exception promotes the policy of
guaranteeing citizens the opportunity to
ensure that no governmental body impairs
or defeats the purpose of legislation
establishing a public right. It has often
been invoked by California courts.
Hector F. v. El Centro Elementary Sch. Dist., 173 Cal. Rptr.
3d 413, 418 (Cal. Ct. App. 2014) (emphasis added) (internal
quotations and citations omitted). The same public standing
rule (or doctrine, or exception) is found throughout the
nation.4

See, e.g., Southern LNG, Inc. v. MacGinnitie, 755 S.E.2d

683, 687 (Ga. 2014) (Where the question is one of public
right and the object is to procure the enforcement of a public
duty, no legal or special interest need be shown [to petition
for mandamus], but it shall be sufficient that a plaintiff is
interested in having the laws executed and the duty in
question enforced. (quoting OCGA 9624)); Protect MI
Constitution v. Sec'y of State, 824 N.W.2d 299, 306 (Mich.
Ct. App. 2012), rev'd on other grounds, 819 N.W.2d 428 (Mich.
2012); ProgressOhio.org, Inc. v. JobsOhio, 973 N.E.2d 307,
313 (Ohio Ct. App. 2012); State ex rel. Kansas City Power &
Light Co. v. McBeth, 322 S.W.3d 525, 531 (Mo. 2010) ([W]here
the duty sought to be enforced is a simple, definite
ministerial duty imposed by law, the threshold for standing
is extremely low.); Anzalone v. Admin. Office of Trial Court,
932 N.E.2d 774, 781 (Mass. 2010); Stumes v. Bloomberg, 551
N.W.2d 590, 592 (S.D. 1996); State ex rel. Clark v. Johnson,
904 P.2d 11, 17-18 (N.M. 1995); Rogers v. Hechler, 348 S.E.2d
299 (W.V. 1989); Wells v. Purcell, 592 S.W.2d 100, 103 (Ark.
4

10

Whether labeled a rule, a doctrine, or an exception,

there is no essential difference between Alabamas public
standing rule, as articulated in Kendrick and the other cases
cited above, and the public standing rule widely recognized
throughout the United States. All respect the injury in fact
requirement for general standing, while equally respecting
the

alternative

rule

(or

exception)

for

public

interest

mandamus cases. Two Alabama cases in particular illustrate

this fidelity.
First, in Rodgers v. Meredith, 146 So. 2d 308 (Ala.
1962), a clerk of the circuit court petitioned, in his own
name, for a writ of mandamus to compel the county sheriff to
perform his statutory duty to file written reports with the
clerk regarding the prisoners entering and leaving the county

1979) ("The rule is well settled, that when . . . the

proceedings are for the enforcement of a duty affecting not
a private right, but a public one, common to the whole
community, it is not necessary that the relator should have
a special interest in the matter."); Florida Indus. Com'n v.
State ex rel. Orange State Oil Co., 21 So. 2d 599, 600-01
(Fla. 1945) (We also said in that case that where the
question is one of public right and the object of the mandamus
is to procure the enforcement of a public duty, the relator
need not show that he has any legal or special interest in
the result, it being sufficient that he is interested as a
citizen in having the law executed and the duty in question
enforced.).
11

jail. The Court held that compliance with the statute was
mandatory for the sheriff. Id. at 314. But the Court also
held that the circuit clerk did not have standing to seek
mandamus to compel the sheriffs performance because the
statute conferred no private right on the clerk. Id. In so
holding, the Court distinguished the private standing on
which the clerk relied in error, from the public standing on
which the clerk could have relied:
We hold that the duty here placed on the
sheriff by [the reporting statute] is a
legal duty in which the public has an
interest,
as
distinguished
from
an
official duty affecting a private interest
merely. Under the settled rule, petition
for mandamus to compel a public officer to
perform such duty is properly brought in
the name of the state on the relation of
one or more persons interested in the
performance of that duty. The instant
petition was not so brought.
Id. at 314-15. Thus, whereas the circuit clerks individual
injury was insufficient for the clerk to bring the action
privately, the Court held the publics interest sufficient
for the clerk to refile the action as relator in the name of
the state. Id. at 315.
Second, in Kendrick, a citizen relator, in the name of
the state, sued his county commission to force them to provide
voting machines for elections in compliance with a state
12

statute. The statute required the county to provide voting

machines

for

all

elections

in

the

county,

but

gave

the

commission discretion not to provide machines in any precinct

having less than 100 registered voters. Id. at 447. The
respondents challenged the relators petition on the basis
that he failed to show the requested relief would redress any
injury particular to him, because he failed to show he voted
in a precinct entitled to provision of voting machines. Id.
In rejecting the respondents challenge to the relators
standing, the Court cited the public standing rule:
It is now the settled rule in Alabama that
a mandamus proceeding to compel a public
officer to perform a legal duty in which
the
public
has
an
interest,
as
distinguished
from
an
official
duty
affecting a private interest merely, is
properly brought in the name of the State
on the relation of one or more persons
interested in the performance of such duty
to the public . . . .
Id. Applying the public standing rule, the Court concluded:
It is clear that the act which petitioner
seeks to have performed does not concern
the sovereign rights of the State and is
one in which the public, all the people of
Jefferson
County,
have
an
interest.
Petitioners
right
to
have
the
act
performed is not dependent upon the fact
that he may or may not vote in a voting
place where the governing body is required
to install a voting machine.
13

Id. (emphasis added).

Thus, whereas in Rodgers the petitioner lacked standing
because he had no particularized injury and failed to invoke
public standing, in Kendrick the relator properly invoked
public standing and was excused from showing particularized
injury. Taken together, it is clear this Court was well-aware
of

both

rules:

particularized

the

injury,

general
and

standing

the

public

rule

requiring

standing

rule

conferring standing on a member of the public as a matter of

law, without particularized injury, when enforcement of a
public duty is sought by mandamus.
Injury in fact has always been the primary focus of
Alabamas general standing rule. See Ex parte King, 50 So. 3d
at

1059

(Traditionally,

Alabama

courts

have

focused

primarily on the injury claimed by the aggrieved party to

determine whether that party has standing . . . .). For over
a century, Alabama has equally recognized the rule of public
interest standing. See, e.g., Bryce, 55 So. at 638. The
formulaic restatement of the general standing rule adopted by
this Court in HenriDuval did not abolish public interest

14

standing,

expressly

or

by

implication.5

Respondents,

by

devoting so much argument to particularized injury under the

general rule, have merely pooled their ignorance of the
applicable standard in this case, resulting in a straw man to
whom this Court owes no heed.6
As evident from the multitude of cases above, under the
public interest standing rule all that Relators must show
this Court is that (1) they are citizens of Alabama, and (2)
they are seeking to require a public officer to perform a
legal duty in which the public has an interest. Kendrick, 54
So. 2d at 447. That Relators are citizens of Alabama is not
disputed by Respondents, and is conclusively established in

Conceding the inconvenience of public standing to his

position, Respondent Reed goes so far as to plead for
abolishment of public standing now. (Reed Ans. at 23-24.)
This bald attempt to prevent consideration of the merits of
Relators Petition only bolsters both the historicity and
continued vitality of the public standing rule in Alabama.
5

In their confusion, Respondents King and Ragland attempt

to rewrite the public standing rule by superimposing the novel
requirement of a concrete personal benefit from the relief
sought in order to acquire standing, even calling it wellestablished jurisprudence. (King-Ragland Ans. at 15.)
However, they utterly fail to explain the source of this
phantom requirement, given the actual jurisprudence of public
standing which expressly does not require any personal
benefit at all.
6

15

the Petition (Pet., Stmt. of Facts, 10-11), and in the

Verifications of Katherine Robertson (attached as Exhibit A,
at 3,5), and Joseph Godfrey (attached as Exhibit B, at
3,5). Moreover, that this Petition is brought by public
interest,

non-profit

individuals
interest

is

of

standing

corporate

no

moment

is

available

entities

whatsoever,
to

rather
because

citizen

than
public

groups

and

corporations as well as individuals.7

As for the second requirement, it ought to be plainly
evident

that

the

Alabama

public

has

an

interest

in

See, e.g., Marone, 967 N.Y.S.2d at 589 (The public

interest standing of a citizen has been extended to
corporations as well as other organizations.); Save the
Plastic Bag Coal. v. City of Manhattan Beach, 254 P.3d 1005,
1013 (Cal. 2011) (corporate entities should be as free as
natural persons to litigate in the public interest); State
ex rel. Ohio Motorists Ass'n v. Masten, 456 N.E.2d 567, 573
n.4 (Ohio Ct. App. 1982) (We are persuaded that an Ohio
corporation may have as great an interest as a natural person
in seeking the just enforcement of state laws, and may be
considered to be a citizen of the state of Ohio entitled to
institute an action in mandamus.); c.f. Jackson Sec. & Inv.
Co. v. State, 2 So. 2d 760, 764 (Ala. 1941) (The general
rule is recognized everywhere that a corporation is a citizen,
resident or inhabitant of the state under whose laws it was
created . . . .); 10A-1-2.11, Ala. Code 1975 ([W]hether
or not expressly stated in its governing documents, a domestic
entity has the same powers as an individual to take action
necessary or convenient to carry out its business and
affairs.).
7

16

Respondents

faithful

compliance

with

Alabamas

marriage

laws. However, Respondents have curiously chosen to dispute

this, so Relators demonstrate it in the next section.
II. RELATORS PROPERLY BRING THIS ACTION IN THE NAME OF THE
STATE TO ENFORCE A DUTY OWING TO THE PUBLIC.
A.

The duty of a probate judge to issue marriage

licenses in accordance with Alabamas marriage
laws is a duty owing to the public.

Relators have public standing to seek enforcement of

Alabamas marriage laws by mandamus (see supra I) because
a

probate

judges

duty

to

issue

marriage

licenses

in

accordance with those laws is unquestionably a duty owing to

the public. The Alabama publics interest in enforcement of
both the Marriage Amendment and the Marriage Act is evident
in the language of the laws themselves:
Marriage
is
inherently
a
unique
relationship between a man and a woman. As
a matter of public policy, this state has
a
special
interest
in
encouraging,
supporting, and protecting this unique
relationship in order to promote, among
other goals, the stability and welfare of
society and its children. A marriage
contracted between individuals of the same
sex is invalid in this state.
Art. 1, 36.03(b), Ala. Const. 1901; 30-1-19(b), Ala. Code
1975

(same).

Furthermore,

the

publics

interest

in

enforcement of the Marriage Amendment, in particular, is

17

evidenced by its ratification in 2006 by 81% of Alabama

voters.8
The

United

States

Supreme

Court

has

recognized

the

importance to the public of preserving the institution of

marriage,

observing,

Marriage

and

procreation

are

fundamental to the very existence and survival of the race.

Skinner v. State of Okla. ex rel. Williamson, 316 U.S. 535,
541 (1942). And, in the prior century:
Other
contracts
may
be
modified,
restricted, or enlarged, or entirely
released upon the consent of the parties.
Not so with marriage. The relation once
formed, the law steps in and holds the
parties
to
various
obligations
and
liabilities. It is an institution, in the
maintenance of which in its purity the
public is deeply interested, for it is the
foundation of the family and of society,
without which there would be neither
civilization nor progress.
Maynard v. Hill, 125 U.S. 190, 211 (1888) (emphasis added).
The purity of the institution of marriage to which the
U.S. Supreme Court referred undoubtedly included its natural,

Certification of Constitutional Amendment Election

Results (June 6, 2006), http://alabamavotes.gov/
downloads/election/2006/primary/ProposedAmendmentsOfficialResultsCertification-06-28-2006.pdf (last visited
February 23, 2015).
8

18

historical definition as the unique union of a man and a

woman:
For better, for worse, or for more of the
same, marriage has long been a social
institution
defined
by
relationships
between men and women. So long defined, the
tradition is measured in millennia, not
centuries or decades. So widely shared, the
tradition until recently had been adopted
by all governments and major religions of
the world.
DeBoer

v.

Snyder,

772

F.3d

388,

395-96

(6th

Cir.

2014)

(emphasis added).9
Given the historic importance of the marriage institution
to the stability and welfare of society, as expressly
recognized in both the Marriage Amendment and the Marriage
Act,

the

Alabama

public

is

deeply

interested

in

the

performance of the duties established by these laws, by the

probate judges entrusted with performing them. These duties
owing to the public expressly include the duty not to issue

Cert. granted sub nom. Obergefell v. Hodges, No. 14-556,

2015 WL 213646 (U.S. Jan. 16, 2015) and cert. granted sub
nom. Tanco v. Haslam, No. 14-562, 2015 WL 213648 (U.S. Jan.
16, 2015) and cert. granted, No. 14-571, 2015 WL 213650 (U.S.
Jan. 16, 2015) and cert. granted sub nom. Bourke v. Beshear,
No. 14-574, 2015 WL 213651 (U.S. Jan. 16, 2015).
9

19

marriage licenses to same-sex couples. Art. 1, 36.03(d),

Ala. Const. 1901; 30-1-19(d), Ala. Code 1975.
Alabama courts have consistently classified ministerial
duties imposed on public officials by statute as public duties
which can be enforced by the public in the name of the state.
For example, as shown above, this Court held in Rodgers that
a county sheriffs statutory duty to provide written reports
of inmate population to the circuit clerk is a legal duty in
which the public has an interest .... 146 So. 2d at 314-15.
In Kendrick, also shown above, this Court held that a county
commissions statutory duty to provide voting machines for
county elections does not concern the sovereign rights of
the State and is one in which the public, all the people of
[the] county, have an interest. 54 So. 2d at 447. In Gray v.
State ex rel. Garrison, 164 So. 293, 295 (Ala. 1935), the
Court held a county commissioners statutory duty to sign a
warrant on appropriation for a public library a legal duty
in

which

there

was

such

public

interest

as

warranted

proceeding by mandamus in the name of the state. In Homan v.

State ex rel. Smith, 89 So. 2d 184, 186 (Ala. 1956), the Court
held the statutory duty of a board of town commissioners to
hold an election regarding annexation of a town does not
20

concern the sovereign rights of the State and is one in which

the public, all of the people of the municipalities involved,
have an interest. And finally, in Marshall County Bd. Educ.
v. State ex rel. Williams, 42 So. 2d 24, 27 (Ala. 1949), the
Court held that a petition for mandamus to a county education
board to compel its performance of a statutory duty to allow
school enrollment only to students of a certain age was for
the enforcement of a public duty by respondents and, therefore
. . . was properly brought in the name of the State on the
relation of the petitioners.
In each of the above examples, the official duty was
imposed by a state statute, and the duty owed was to the
public, not the state government.10 The duty of probate judges
to issue marriage licenses in accordance with the Marriage
Act is likewise such a duty owing to the public, and the same
duty under the Marriage Amendment even more so given its
direct ratification by Alabama voters. Thus, Relators satisfy
the second requirement for public standing to proceed in the
name of the state.

10

See infra II.B.

21

B.

The duty of a probate judge to issue marriage

licenses in accordance with Alabamas marriage
laws is not a duty owing to government.

Public duties are not enforceable by citizens under the

public

standing

rule

only

if

the

matter

concerns

the

sovereign rights of the State, in which event it must be

instituted

on

the

relation

of

the

Attorney

General.

Morrison, 141 So. 2d at 170. Where the duty is owing to the

government as such, private individuals . . . cannot resort
to mandamus to enforce it. Id. (emphasis added) (internal
quotations and citations omitted). Morrison is the third of
three cases in the only line of Alabama cases to have reserved
to the Attorney General the right to vindicate the sovereign
rights of the State. Id. All three of the cases involve the
states sovereign right to assess property values for the
levy of taxes. Careful review of the cases reveals that the
public duty of a probate judge to issue marriage licenses in
accordance with Alabamas marriage laws is not a matter
concerning the sovereign rights of the state under this rule.
The first case in the line is State ex rel. Chilton
County v. Butler, 142 So. 531 (Ala. 1932). Chilton County
sued the state tax commissioner to force the commissioner to
assess a public utility's property in the county at 60% of
22

its value instead of 45%. Id. at 532. In addition to the taxes

levied by the state based on the assessment, the amount of a
county-level tax was also dependent on the assessment. Id. at
532-33.

Thus,

commissioners

the

county

statutory

sought

duty

to

to

enforce

assess

the

the

tax

utilitys

property for the benefit of the county.11 Id.

The Chilton County Court recognized that the assessment
of taxes is a state prerogative in the exercise of its
sovereign power to tax, and that [t]he right of a county .
. . to levy a tax is a bounty conferred by the state . . . .
Id.

at

533.

The

Court

also

recognized

that

the

states

conferring, to the county, of the right to levy a tax did not

include the right to enforce the tax commissioners duty to
assess values properly, which right is owed to the state
government. Id. at 532-33. Thus, the Court concluded the
county

was

sovereign

seeking

capacity,

to

enforce

rather

than

a
one

claim
which

which

involves

relates

to

Though the county intended to enforce a private right,

rather than invoke public interest standing, it brought its
petition as a relator in the name of the state. Id. at 532.
The Court recognized that this procedure was not unusual, but
also was not necessary. Id.
11

23

function delegated to the county, which claim was reserved

to the Attorney General.12 Id. at 533.
The second case, State ex rel. Foshee v. Butler, 142 So.
533 (Ala. 1932), was the companion case to Chilton County.
The Foshee opinion is much shorter, referring to the Chilton
County opinion for discussion of the pertinent principles.
Id. at 533. Foshee is more apposite than Chilton County to
the instant case, however, because it involved a citizen
invoking public interest standing to seek mandamus in the
name of the state. Id. at 533-34. Like the county in Chilton
County, the citizen relator in Foshee sought mandamus to
compel the state tax commissioner to assess the same public
utilitys property at 60% instead of 45%. Id. at 533-34. The
relator did not show general standing, the Court held, because
he did not seek relief for an injury peculiar to himself.
Id. at 534. He also did not show public standing, however,

The Chilton County court distinguished the case before

it from one in which a county could force a state officer,
after having exercised the state prerogative of assessment,
to then certify the assessment to the county. Id. The basis
of the distinction was that the duty to certify the
assessment, having already been made, "was a ministerial duty
to the performance of which the county may have a clear legal
right." Id. at 533.
12

24

because he did not seek performance of an official duty to

the public at large. Id. Rather, relator sought performance
of a duty owed only to the state in its sovereign capacity.
Id. In dismissing his petition, the court stated [t]he
general rule is that an individual cannot enforce a right
owing to the government . . . . Id. (emphasis added).
In Morrison, the third in this line of cases, a member
of a county board of equalization, as relator, sued the board
chairman in the name of the state, seeking to void a board
notice of changes in the assessments of certain taxpayers
properties, based on the board's having improperly made the
new assessments. 141 So. 2d at 169. Citing to both Chilton
County and Foshee, the tax assessment cases which preceded
Morrison, the Court similarly held that the relator could not
enforce by mandamus the tax assessment duties owing to the
state in its sovereign capacity. Id. at 170. [P]roceedings
for the enforcement of such right are to be instituted by the
Attorney General. Id.
Taken together, Chilton County, Foshee, and Morrison
instruct that the authority to assess taxes is a prerogative
of the state. Further, any statutory power to assess taxes is
a power conferred by the state, while the duty to assess taxes
25

in a particular manner or amount is a duty owed to the state

and not the public at large. Thus, there is no public standing
for a citizen to enforce an assessment duty because [w]here
the duty is owing to the government . . . private individuals
. . . cannot resort to mandamus to enforce it. Morrison, 141
So. 2d at 170 (emphasis added) (internal quotations and
citations omitted).
Nothing in this line of cases can remove the duty of an
Alabama

probate

judge

to

issue

marriage

licenses

in

accordance with Alabamas marriage laws from the realm of

public duties which are properly enforced by the public, under
the public standing rule. Unlike the duty to make proper tax
assessments, which owes to the government, the duty to issue
marriage licenses in accordance with the Marriage Amendment
and the Marriage Act owes to the Alabama public. (See supra
II.A.) Though Respondents attempt to argue that Relators
claims improperly usurp the sovereign rights of the state,
they utterly fail to show how Chilton County or its progeny
can possibly support such an argument, and none of them cites
any other line of cases for the point. (King-Ragland Ans. at
18-21; Martin Ans. at 16-19; Reed Ans. at 20-24.)

26

Respondent
conflation

of

Martin,
the

for

example,

general

merely

standing

repeats

his

requirement

of

particularized injury in arguing that only sovereign rights

of the state, actionable by the Attorney General, are present
where there is no concrete personal benefit involved for a
citizen relator. (Martin Ans. at 18.) Judge Martin even
accuses Relators of not sharing with this Court the full
counsel of Kendrick. (Id.) But, as shown in II.A above,
Kendrick

expressly

personal

benefit

rejected
to

the

support

need

for

public

any

concrete

interest

standing,

holding it did not matter to the relators standing whether

he personally would receive voting machines in his precinct.
Kendrick, 54 So. 2d at 447.
Respondent
public

duty

claims

unconvincing.
limitation

Reeds

on

as

Judge
public

arguments

for

sovereign

Reed

rights

argues

standing

recasting

that

because

claims
there
[a]ll

Relators
are

must
laws

also
be

a
and

executive actions affect the public in some sense, directly

or indirectly. (Reed Ans. at 21.) But Respondent cannot point
to any authority that could limit the application of public
standing to this case. So instead, he simply asserts that
public standing should be abolished. (Reed Ans. at 23-24.)
27

Finally, excluding the Marriage Amendment in particular

from enforcement by public interest standing would not only
be

inconsistent

with

this

Courts

public

standing

jurisprudence, but it would also undermine the right reserved

to the people of Alabama to amend their state constitution.
Such a shift by this Court would disenfranchise millions of
Alabamians, and would infringe their constitutional right to
amend their own constitution.
III. THIS COURTS JURISDICTION IS PROPERLY INVOKED UNDER CLEAR
PRECEDENT.
A.

This Court has original jurisdiction over a

mandamus petition directed to a judge of
probate to command performance of a ministerial
duty.

Unless

this

Court

would

reverse

its

own,

unanimous

opinion of only three years ago, its jurisdiction over the

Petition is not only proper, but also mandatory and exclusive.
In Ex parte Jim Walter Resources, Inc., 91 So. 3d 50 (Ala.
2012), this Court accepted jurisdiction to review a petition
for writ of mandamus directed to a judge of probate, to compel
the judge to perform a ministerial act. 91 So. 3d at 52. The
Court explained the basis for its jurisdiction:
We note that this Court has jurisdiction
to review a petition for a writ of mandamus
in matters as to which this Court has
appellate jurisdiction. See 12311,
28

Ala. Code 1975 (Each of the courts of

appeals shall have and exercise original
jurisdiction
in
the
issuance
and
determination of writs of quo warranto and
mandamus in relation to matters in which
said court has appellate jurisdiction.).
A probate courts application of the
mortgage-recordation-tax statute is within
this Courts jurisdiction because the
circuit courts appellate jurisdiction
over probate matters is limited and does
not include the taxing issue involved in
this case. See 122221, Ala. Code 1975
(listing probate-court matters over which
the
circuit
court
has
appellate
jurisdiction); Oliver v. Shealey, 67 So.
3d 73, 74 (Ala. 2011)(holding that appeals
from probate court are heard first by this
Court if the subject matter is not proper
for the appeal to be heard in circuit court
and noting that [a] circuit courts
appellate jurisdiction over an order of a
probate
court
is
confined
to
seven
circumstances enumerated in 122221).
Id. (emphasis added).13
Regarding its power to issue a writ of mandamus to a
probate court, this Court further explained:
A writ of mandamus will lie to compel a
court to perform ministerial duties. . . .
In
the
present
case,
imposing
the
recordation tax on a mortgage recorded in
a county is part of the administrative
duties of the probate judge of the county
and, as such, is a ministerial function.

The unanimous panel comprised Justices Bolin, Woodall,

Murdock, Main, and Wise.
13

29

Id. at 53. Thus, this Court has original jurisdiction over

mandamus petitions directed to probate judges, to perform
ministerial duties, when those duties concern issues outside
the limited categories of probate court appeals which can be
heard by a circuit court under 12-22-21, Ala. Code 1975.
Id. at 52-53. Like

the

probate

judges

application

of

recording tax laws at issue in Jim Walter, a probate judges

application
excluded

of

from

Alabamas
the

marriage

limited

statutes

categories

of

is

similarly

circuit

court

jurisdiction under 12-22-21. And, as shown in the Petition,

[t]he issuance of a marriage license by a judge of probate
is a ministerial and not a judicial act. Ashley v. State, 19
So. 917, 91 (1896). (Pet. at 12.) Thus, under Jim Walter,
this Court has clear, original and exclusive jurisdiction
over the Petition in this case.
The Jim Walter decision disposes of Respondents lengthy
jurisdiction arguments. Not surprisingly, Respondents strain
to convince this Court the case says something else. For
example, Respondents King, Ragland, and Martin nonsensically
argue, Although that case involved an original petition to
this Court, it was brought under this Courts appellate
jurisdiction . . . . (King-Ragland Ans. at 32 n.6; Martin
30

Ans. at 26 n.7.)14 This Court, however, did not invoke its

appellate

jurisdiction

Respondents.
original

Rather,

writ

appellate

in

Jim

this

Court

jurisdiction

jurisdiction:

Walter,

which

We

note

as

recognized
is

that

suggested

by

that

it

has

corollary

to

its

Court

has

this

[original] jurisdiction to review a petition for a writ of

mandamus

in

matters

as

to

which

this

Court

[also]

has

appellate jurisdiction. 91 So. 3d at 52. This Court should

uphold

its

attempts

to

own

precedent

bypass

the

and

disregard

jurisdictional

all

Respondents

authority

of

Jim

Walter.
B.

This Court may exercise jurisdiction to issue

a supervisory writ to any inferior court when
necessary to afford full relief and do complete
justice.

Even if this Court did not have original and exclusive

jurisdiction over this Petition under Jim Walter, and even if
we assume for the sake of argument (without conceding) that
lower courts also have jurisdiction to entertain multiple and
separate petitions directed at judges within their geographic

Respondent Reed only briefly comments on Jim Walter,

attempting in vain to distinguish it by presuming to know
what the Court did not consider in reaching its decision.
(Reed Ans. at 27.)
14

31

jurisdiction, it is clear that this Court also has both

constitutional and statutory authority to issue writs as may
be necessary to give it general supervision and control of
courts of inferior jurisdiction. Art. VI, 140(b), Ala.
Const. 1901; 12-2-7(3), Ala. Code 1975. In Ex parte Alabama
Textile Products Corp., 7 So. 2d 303 (Ala. 1942), this Court
analyzed the contours of this jurisdictional basis.
Fundamentally,
jurisdiction

is

the
based

Courts
on

the

general
Courts

supervisory

discretion

in

determining whether necessity exists in a given case. Id.

at 305. As a general rule, the Court will find no necessity
if there is an inferior court which possesses the authority
to afford to the petitioner relief as ample as this court
could grant. Id. (emphasis added).
But the rule is not that this Court cannot exercise
original writ jurisdiction simply because an inferior court
also has authority. Id. at 306. We do not think that the
requirement of the Constitution that we shall issue such writs
only when necessary to give us a general superintendence fixes
and iron-clad rule . . . . Id. Rather, the rule preserves
the Courts discretion to take jurisdiction in appropriate
cases:
32

the higher court will not take jurisdiction

where the application can be made to a
lower court, unless for special reasons
complete justice otherwise cannot be done,
as where the case is of more than ordinary
magnitude and importance to prevent a
denial of justice or where not application
can be made to the lower court in time to
prevent the consummation of the alleged
wrong.
Id. (citations omitted) (emphasis added). Thus, this Court
may issue appropriate writs, even where an inferior court
also has authority, when in [this Courts] judgment it is
necessary to afford full relief and do complete justice. . .
. We have the right to determine whether a necessity exists,
influenced by the magnitude and importance of the question
involved, and the convenience of the parties in presenting it
. . . . Id.
The petition reviewed in the Textile Products case was
for a writ of certiorari to the Board of Appeals, Division of
Unemployment

Compensation

Commission,

Department

of

Industrial Relations of the State of Alabama. Id. at 305. The

writ was requested by an employer which had been held liable
for

unemployment

compensation

benefits

under

Alabamas

unemployment compensation act. Id. at 307.

At issue in the case was whether a womans voluntary
separation from employment, to move to another state with her
33

husband,

disqualified

her

from

unemployment

compensation

benefits. Id. at 307-08. The precise question was whether

voluntarily leaving employment to join her husband in another
state, as opposed to voluntarily leaving for some other
reason, was sufficiently good cause under the act to avoid
disqualification from benefits. Id. at 309-310.
Focusing

on

the

unique

values

involved

in

the

relationship between a husband and wife, the Court devoted

considerable
concluded
without

attention

that
good

to

the

the

voluntary

cause,

which

question,
employment

but

ultimately

termination

disqualified

the

wife

was
from

receiving benefits. Id. at 310-11.

The Court decided to take jurisdiction over the petition,
even

though

jurisdiction.

circuit

The

court

Courts

also

decision

could
was

have

based

exercised
on

factors:
On account of [1] the importance of the
question here involved, [2] its state-wide
application, [3] the need of an early
decision, [4] the territorially restricted
jurisdiction of the circuit court and [5]
the consent of the parties, we have
concluded in the exercise of our power and
discretion to give consideration to the
merits of the question and make decision
of it.
Id.
34

several

Applying the factors considered in Textile Products, it

is difficult to conceive of a more compelling case than the
instant case for this Court to take jurisdiction. To begin
with,

the

importance

of

the

unemployment

compensation

question involved in Textile Products pales in comparison to

the importance of the question involved in the instant case:
the

statewide

licensure

of

the

unique

relationship

of

marriage, promoting the stability and welfare of society,

pursuant to an Alabama constitutional amendment ratified by
81% of Alabama voters.15 Art. 1, 36.03(b), Ala. Const. 1901.
And because the important question implicates the conduct of
nearly fifty probate judges throughout the state issuing
licenses

contrary

to

the

Marriage

Amendment,16

no

single

The question before the Textile Products Court, though

in the arena of unemployment compensation, also concerned
marriage. In his criticism of the majority holding, one of
the
two
dissenting
justices
highlighted
the
unique
significance of the marriage relationship to the question
decided: It . . . ignores the moral influence of the home
and family ties, and strikes at one of our most sacred
institutions-the home and family life. Id. at 311 (Brown,
J., dissenting) (emphasis added). To the extent the marriage
aspect of the question contributed to the Courts deeming it
important, then a fortiori the Court should deem important
the question in the instant case.
15

16

See infra, n.17.

35

circuit court, or even ten circuit courts, possess[] the

authority to afford to the petitioner relief as ample as this
court could grant. Id. at 305 (emphasis added). Rather,
relegating the question to the multitude of circuit courts
necessary to cover the judges in question could not possibly
provide relief a quickly as this Court can, and virtually
ensures continuation of the legal discord and disharmony
which has taken hold in the state. This Court should take
jurisdiction because complete justice otherwise cannot be
done. Id. at 306 (emphasis added). Only this Court can issue
a ruling binding throughout the state, to quickly restore
uniformity and the rule of law.
Respondents incorrectly read this Courts exercise of
jurisdiction in Textile Products as turning primarily on the
consent of the parties. (King-Ragland Ans. at 24; Martin Ans.
at 33; Reed Ans. at 28.) This, of course, cannot be true.
[T]his Court can only act within the jurisdiction conferred
by law, and this cannot be enlarged by waiver or the consent
of the parties. Id. at 305. Although the Court observed that
a request to take jurisdiction with no objection by a party
receives more favorable consideration, consent was but one
factor cited by the Court in deciding to take jurisdiction in
36

Textile Products, and the last one at that. Respondents lack

of consent to this Courts jurisdiction in the instant case
is hardly worth considering, given the substantial weight of
the other factors favoring jurisdiction.
Respondents

arguments

that

Textile

Products

cannot

apply to this case because it involved a writ of certiorari

likewise

have

no

merit.

For

purposes

of

this

Courts

jurisdiction under Textile Products, the distinction makes no

difference. In Ex parte Tubbs, 585 So. 2d 1301 (Ala. 1991),
this Court had before it a mandamus petition, and recognized
that original jurisdiction may lie where complete justice
cannot otherwise be done, citing both Textile Products and
Ex parte Barger, 11 So. 2d 359 (Ala. 1942). Tubbs, 585 So. 2d
at 1302. The Tubbs Court dismissed the petition before it
only

because

there

were

no

special

circumstances

that

warrant . . . taking jurisdiction. Id. And in Denson v. Bd.

of Trustees of Univ. of Ala., 23 So. 2d 714 (Ala. 1945), this
Court likewise found that the Textile Products grounds for
jurisdiction

were

not

satisfied

in

an

original

mandamus

petition directed to a probate judge, not that the Textile

Products grounds could not apply. 23 So. 2d 714 at 715. As
shown above, special circumstances abound in the instant
37

case,

and

this

Court

should

take

jurisdiction

over

the

Petition to do complete justice.

IV. RELATORS ARE ENTITLED TO MANDAMUS RELIEF.
A.

The Petition is procedurally complete.

No Respondent takes issue with the fact that the Petition

was initially unverified. However, in their separate dissents
from this Courts Order requiring Respondents to answer the
Petition, Justices Shaw and Main both expressed concern that
the Petition was unverified. (Order on Pet. for Writ of
Mandamus, at 2, 4 (Feb. 13, 2015)).
Rule 21 of the Alabama Rules of Appellate Procedure does
not require mandamus petitions filed with this Court to be
verified. Ala. R. App. P. 21. As such, this Court has held
that 6-6-640, Ala. Code 1975, which required mandamus
petitions to be verified, has been superseded by Rule 21, and
verification is no longer required in appellate courts. See
Ex parte Johnson, 485 So. 2d 1098, 1106 (Ala. 1986) ([W]e
hold that the verification requirement of 66640 does not
apply as to mandamus petitions governed by the Alabama Rules
of Appellate Procedure, and the petition is not due to be
dismissed

because

of

petitioner's

failure

to

have

it

verified.). See also, Ex parte Collins, 84 So. 3d 48, 49 n.1

38

(Ala. 2010) ([A] petition for a writ of mandamus filed in an

appellate court need not be verified.).
Nevertheless, out of an abundance of caution, Relators
submit

with

this

Reply

the

Verification

of

Katherine

Robertson (attached as Exhibit A), the Verification of Joseph

Godfrey

(attached

as

Exhibit

B),

verifying

the

factual

allegations of API and ALCAP, respectively. Relators also

submit the Verification of Attorney Roger K. Gannam (attached
as Exhibit C), verifying the authenticity of the exhibits to
the Petition, and verifying generally the facts alleged in
the Petition. See, e.g., Ex parte Ackles, 840 So. 2d 145, 146
(Ala. 2002) ([T]he affidavit can be made by an agent or
attorney who is conversant with the facts.) overruled on
other grounds by Ex parte Collins, 84 So. 3d 48 (Ala. 2010);
Gordon v. State ex rel. Cole, 185 So. 889, 890 (Ala. 1939)
([T]he

affidavit

may

be

made

by

an

agent

or

attorney

conversant with the facts.).

Notably, no Respondent disputes any of the material facts
alleged in the Petition. Respondents do not dispute the
statements about API and ALCAP, and Respondents do not dispute
that they have granted, and will continue to grant when
requested, same-sex marriage licenses. Respondents also do
39

not dispute the authenticity of the exhibits to the Petition,

offering instead some of the same documents as exhibits to
their own responses.
The

only

additional

fact

useful

for

this

Courts

adjudication of the Petition is that, since the filing of the

Petition, a large number of other probate judges within
Alabama have also begun issuing same-sex marriage licenses in
derogation

of

the

Alabama

Constitution

and

Alabama

law,

which, as explained in III.B, above, provides another

independent basis for this Courts jurisdiction and urgent
intervention. Respondents do not dispute this, and this Court
may

judicially

incontrovertible
(Judicial

notice

this

development.

notice

may

be

See

taken

generally
Ala.
at

R.

any

known
Evid.
stage

and
201(f)

of

the

proceeding.); 201(b) (allowing judicial notice of fact[s]

. . . not subject to reasonable dispute [and] generally
known). That a majority of Alabamas probate judges are now
issuing same-sex marriage licenses has been widely reported
and is generally known in Alabama.17

See, e.g., Kim Chandler, Alabama Judges Resistance to

Same-sex Marriage Crumbles, Associated Press (Feb. 14, 2015),
17

40

In sum, there is no obstacle, procedural or substantive,

preventing

this

Court

from

reaching

the

merits

of

this

Petition, providing the requested relief, and restoring the

rule of law in Alabama.
B.

Respondents arguments for denial

Petition are based on fallacies.

Respondents

Answers

repeatedly

make

of

the

rhetorical

assertions that lack legal merit, either in their premises or

their conclusions. Following is a sampling of such fallacies,

available
at
http://www.montgomeryadvertiser.com/
story/news/local/alabama/2015/02/14/alabama-judgesresistance-sex-marriage-crumbles/23404127/
(last
visited
Feb. 20, 2015) (reporting majority of Alabama probate judges
issuing marriage licenses to same-sex couples); Campbell
Robertson, Most Alabama Judges Begin to Issue Licenses for
Same-Sex Marriages, N.Y.Times (Feb. 13, 2015), available at
http://www.nytimes.com/2015/02/14/us/most-alabama-countiesare-granting-same-sex-marriage-licenses.html (last visited
Feb. 20, 2015); Alabama Judges Stand Against Gay Marriage
Crumbles, Chicago Tribune (Feb. 13, 2015), available at
http://www.chicagotribune.com/
news/nationworld/chi-alabama-gay-marriage-20150213story.html (last visited Feb. 20, 2015); Richard Fausset,
Fresh Challenge to Gay Marriage Increases Confusion in
Alabama,
N.Y.Times
(Feb.
18,
2015),
available
at
http://www.nytimes.com/2015/02/19/us/fresh-challenge-togay-marriage-increases-confusion-in-alabama.html?_r=0 (last
visited Feb. 20, 2015) ([M]ost county probate judges in
Alabama are now issuing marriage licenses to same-sex
couples.).
41

variously presented by Respondents (variously, as they are

not consistent with one another):
Fallacy #1: That a non-binding federal
trial court order transforms a ministerial
duty into a discretionary duty.
Respondents King, Ragland, and Martin concede that, prior
to the Searcy and Strawser Injunctions, no probate judge had
the discretion to issue a marriage license to a same-sex
couple. (King-Ragland Ans. at 28-29; Martin Ans. at 23.) These
Respondents also concede, the rulings in the federal court
cases are not necessarily binding on any probate judge . . .
. (King-Ragland Ans. at 29; Martin Ans. at 23.) From these
concessions, however, they conclude that they are now due
discretion to respect the federal decision and disobey
Alabamas marriage laws because Relators have not supplied
authority

to

the

contrary.

(King-Ragland

Ans.

at

29-30;

Martin Ans. at 23-25.) This reasoning is patently fallacious.

Furthermore, Respondents claim their preference is to
allow the issue to be worked out through the proper legal
channels by the proper legal authorities . . . . (KingRagland Ans. at 30; Martin Ans. at 25.) But observing the
proper

legal

channels,

and

voluntarily

disregarding

Alabamas marriage laws in respect of a non-binding federal

42

order, are mutually exclusive positions; no probate judge can

do both.
Respondent Reed invokes Judge Granades hypothesis that,
though not bound, probate judges not before her court may
certainly follow her ruling . . . . (Reed Ans. at 34.)
However, neither Judge Reed nor Judge Granade reveals how a
federal order which is non-binding on the issue of what a
probate judge must do as a matter of duty, is nonetheless
binding on the issue of what a probate judge may do as a
matter

of

discretion.

Because

Judge

Granade

has

no

jurisdiction over Respondents, her opinions have no more

application to Respondents than the opinions of courts from
distant states (or countries). Respondents would be foolhardy
to argue that they may certainly follow the rulings of
faraway trial courts. Their contention with respect to Judge
Grenade is equally meritless. If Respondents are so intent on
following the decisions of federal courts which have no
jurisdiction over them, they should at least follow the wellreasoned opinions of trial and appellate courts that have

43

upheld the constitutionality of natural, man-woman marriage.18

Those

decisions

are

consisted

with

the

Alabama

law

and

Constitution and do not require Respondents to violate their

sworn duties to uphold them.
Finally, each Respondent appeals to the possibility of
being sued, in a new, original lawsuit, by new plaintiffs
burdened with proving their own case, as grounds for endowing
Respondents with discretion to disregard Alabamas marriage
laws. (King-Ragland Ans. at 29; Martin Ans. at 24; Reed Ans.
at 36.) Here Respondents urge a rule of convenience, not a
rule of law.19 If fear of lawsuits in our litigious world
would suffice to confer discretion on public officials to
abandon their sworn duties to uphold the law, all law would
be in a precarious position indeed. Public officials are sued
all the time, for all kinds of reasons, not all of them
legitimate.

When

they

are

sued,

public

officials

defend

See e.g., DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014);
Conde-Vidal v. Garcia-Padilla, No. 14-1253, 2014 WL 5361987
(D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d
910 (E.D. La. 2014)
18

Respondent judges seek to lower their own legal burdens,

even while they seek to increase the legal burdens of the
citizens of Alabama by adding to the requirements of (or
abolishing) the rule of public standing. See supra II.A.
19

44

lawsuits, and often win them. That Judge Grenade reached one
opinion on Alabamas marriage laws has no bearing on whether
a different judge in a different district (or even her own
district) will reach the same opinion in a hypothetical new
suit, or would side with those courts who have upheld manwoman marriage.
In

sum,

speculative

Respondents
and

legally

dire

predictions

insufficient

to

are

excuse

both
their

voluntary departure from Alabama law.

Fallacy #2: That this Court is required to
rule on the constitutionality of the
Marriage Amendment and the Marriage Act.
Respondents

King,

Ragland,

and

Martin

assert

that

granting the Petition will require this Court to rule on the

constitutionality of the Marriage Amendment and the Marriage
Act. (King-Ragland Ans. at 32; Martin Ans. at 27.) This
argument

ignores

what

the

Petition

says.

Relators

are

entitled to relief because the probate judge duties they seek

to

compel

competent

by

mandamus

jurisdiction

are

ministerial,

(over

and

Respondents)

no

has

court
ruled

of
the

Marriage Amendment or Marriage Act unconstitutional. (Pet. at

11-19.) Granting the Petition does not require this Court to

45

review the merits of the Searcy or the Strawser Injunctions.20

Thus, to grant the Petition, this Court need only determine
that

Alabamas

unconstitutional
Respondents.

That

marriage
by

laws
court

determination

have
with
is

not

not

been

jurisdiction
a

difficult

ruled
over
one,

because Respondents concede it.

Fallacy
#3:
That
writs
of
mandamus
commanding performance of Respondents
duties under the Marriage Amendment and
Marriage Act are speculative relief.
Respondents King, Ragland, and Martin each claim the
Petition seeks speculative relief because none of them knows
whether a same-sex couple will request a marriage license
after this Court rules. (King-Ragland Ans. at 31-32; Martin
Ans. at 25-26.). This argument is disingenuous. No Respondent
disputes that he has begun issuing marriage licenses to samesex couples. Each Respondents commencing to issue marriage
licenses to same-sex couples on February 9, 2015, required an

This Court is nonetheless competent to disagree with

Judge Granade in a case where the question is properly before
it. See Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993)
(Thomas, J., concurring) ([N]either federal supremacy nor
any other principle of federal law requires that a state
courts interpretation of federal law give way to a (lower)
federal courts interpretation.)
20

46

affirmative

change

in

policy

(contrary

to

Alabama

law).

Relators seek to compel each Respondent to revert to his

marriage license policy in effect prior to February 9, 2015.
This return to compliance with Alabama law would be far from
speculative; it would ensure no issuance of illegal marriage
licenses following this Courts ruling. Notably, Respondents
do not say that they will deny same-sex license applications
absent a writ from this Court. Indeed, the vigorous effort
they expand to defeat this Petition is a strong indication
that they prefer and fully intend to continue issuing such
licenses, in derogation of Alabama law.
If
argument

anything,
by

Respondents

demanding

the

out-speculate

discretion

to

their

disobey

own

Alabama

marriage laws because they might otherwise get sued in federal

court, and they might lose if sued. (See supra Fallacy #1.)
Fallacy #4: That uniformity of state law
will be achieved by preserving the status
quo.
Respondents King, Ragland, and Martin urge denial of the
Petition out of purported concern for uniformity of state
law. (King-Ragland Ans. at 20; Martin Ans. at 19.) But there
is

currently

no

uniformity

of

compliance

with

Alabamas

marriage laws, given that fifty or so probate judges are

47

issuing marriage licenses to same-sex couples in violation of

the

Marriage

promoting

Amendment

uniformity,

and

the

denying

Marriage

the

Act.

Petition

For

will

from

ensure

continuation of the current discord and disharmony. Granting

the Petition, on the other hand, will provide Respondents and
the citizens of Alabama with the uniformity Respondents seek.
CONCLUSION
In accordance with the foregoing, Relators request a writ
of mandamus directed to each Respondent, commanding each of
them not to issue marriage licenses to same-sex couples and
not to recognize any marriage licenses issued to same-sex
couples.
Respectfully Submitted,
s/ Mathew D. Staver
Mathew D. Staver
Fla. Bar No. 0701092
mstaver@LC.org
court@LC.org
Horatio G. Mihet
Fla. Bar No. 0026581
hmihet@LC.org
Roger K. Gannam
Fla. Bar No. 240450
rgannam@LC.org
LIBERTY COUNSEL
P.O. BOX 540774
Orlando, FL 32854-0774
(800) 671-1776
(407) 875-0770 FAX
Admitted pro hac vice

A. Eric Johnston (ASB-2574-H38A)

eric@aericjohnston.com
Suite 107
1200 Corporate Drive
Birmingham, AL 35242
(205)408-8893
(205)408-8894 FAX
Samuel J. McLure (MCL-056)
sam@theadoptionfirm.com
The Adoption Law Firm
PO Box 2396
Montgomery, AL 36102
(334)612-3406
Attorneys for Petitioner
48

CERTIFICATE OF SERVICE
I certify that I have this 23d day of February, 2015,
served copies of this brief, by e-mail transmission, as
follows:
Attorneys for Resp. Reed
Robert D. Segall
segall@copelandfranco.com
Copeland, Franco, Screws &
Gill, P.A.
P.O. Box 347
Montgomery, AL 36101-0347
Thomas T. Gallion, III
ttg@hsg-law.com
Constance C. Walker
ccw@hsg-law.com
HASKELL SLAUGHTER &
GALLION, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Samuel H. Heldman
sam@heldman.net
The Gardner Firm, P.C.
2805 31st St. NW
Washington, DC 20008

Attorneys for Resp. King

Jeffrey M. Sewell
jeff@sewellmcmillan.com
French A. McMillan
french@sewellmcmillan.com
Sewell Sewell McMillan, LLC
1841 Second Avenue N.
Suite 214
Jasper, AL 35501
Attorneys for Resp. Martin
Kendrick E. Webb
kwebb@webbeley.com
Jamie Helen Kidd
jkidd@webbeley.com
Fred L. Clements
fclements@webbeley.com
WEBB & ELEY, P.C.
P. O. Box 240909
Montgomery, AL 36124
Attorneys for Resp. Ragland
George W. Royer, Jr.
gwr@lfsp.com
Brad A. Chynoweth
bac@Lanierford.com
Lanier Ford Shaver &
Payne, P.C.
P.O. Box 2087
2101 West Clinton Avenue,
Suite 102 (35805)
Huntsville, AL 35804

Tyrone C. Means
tcmeans@meansgillislaw.com
H. Lewis Gillis
hlgillis@meansgillislaw.com
Kristen Gillis
kjgillis@meansgillislaw.com
Means Gillis Law, LLC
P.O. Box 5058
Montgomery, AL 36103-5058

Hon. John E. Enslen, Pro Se

jeenslen@gmail.com
Probate Judge of Elmore
County, Alabama
Post Office Box 10
Wetumpka, Alabama 36092

John Mark Englehart

jmenglehart@gmail.com
Englehart Law Offices
9457 Alysbury Place
Montgomery, AL 36117
49

Attorneys for Hon. Don Davis

Lee L. Hale
Lee.hale@comcast.net
501 Church Street
Mobile, AL 36602

Luther Strange
Attorney General,
State of Alabama
501 Washington Avenue
Montgomery, AL 36130-0152
smclure@ago.state.al.us

J. Michael Druhan, Jr.

mike@satterwhitelaw.com
Harry V. Satterwhite
harry@satterwhitelaw.com

s/ Roger K. Gannam
Roger K. Gannam
Attorney for Petitioner

50

EXHIBIT A

EXHIBIT B

EXHIBIT C