E-Filed

02/18/2015 @ 05:37:54 PM
Honorable Julia Jordan Weller
Clerk Of The Court

CASE NUMBER: 1140460

________________________________________________________
In the Supreme Court of Alabama
________________________________________________________
EX PARTE STATE ex rel. ALABAMA POLICY INSTITUTE and
ALABAMA CITIZENS ACTION PROGRAM,
Petitioner
vs.
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,
Respondents.
________________________________________________________
ON EMERGENCY PETITION FOR WRIT OF MANDAMUS
________________________________________________________
ANSWER AND BRIEF OF RESPONDENT ROBERT M. MARTIN
________________________________________________________
KENDRICK E. WEBB
JAMIE HELEN KIDD
FRED L. CLEMENTS, JR.
Webb & Eley, P.C.
7475 Halcyon Pointe Drive
Montgomery, Alabama 36117
334-262-1850 T; 334-262-1772 F
kwebb@webbeley.com
jkidd@webbeley.com
fclements@webbeley.com
COUNSEL FOR RESPONDENT
ROBERT M. MARTIN

TABLE OF CONTENTS
TABLE OF CONTENTS ........................................ ii
TABLE OF AUTHORITIES ..................................... iv
ANSWER AND BRIEF IN RESPONSE TO THE ....................... 1
PETITION FOR WRIT OF MANDAMUS ............................. 1
STATEMENT OF FACTS ........................................ 2
STATEMENT OF WHY WRIT SHOULD NOT ISSUE .................... 6
I.PETITIONERS

LACK

STANDING

TO

BRING

THIS

ACTION.

.......................................................... 8
II.

PETITIONERS

ARE

NOT

PROPER

PARTIES

TO

BRING

THIS

ACTION ON BEHALF OF THE STATE. ........................... 16

III.

PETITIONERS HAVE NOT MET THE REQUIREMENTS FOR THE

ISSUANCE OF A WRIT OF MANDAMUS. .......................... 20

A.

Petitioner does not have a clear legal right to

the order sought. ............................ 21

B.

Petitioner cannot establish an imperative duty

to act on the part of Judge Martin. .......... 29

C.

Petitioner cannot establish the lack of another

adequate remedy. ............................. 29

D.

Petitioner

has

not

properly

invoked

the

jurisdiction of this Court. .................. 30

ii

IV.

The Administrative Order Does Not Provide a Basis

for a Writ of Mandamus. .................................. 34

A.

The Chief Justice Lacks The Authority To Issue

An

Administrative

Order

Unrelated

To

Probate

Judges Judicial Functions. .................. 36

B.

The Administrative Order itself recognizes that

enforcement

may

only

be

had

through

the

Governor enforcing the Order. ................ 38

CONCLUSION ............................................... 39

iii

TABLE OF AUTHORITIES
Cases
Ashley v. State, 109 Ala. 48, 19 So. 917 (1896) .......... 22
Cadle Co. v. Shabani, 4 So. 3d 460 (Ala. 2008) ............ 8
Christopher v. Stewart, 133 Ala. 348, 32 So. 11 (1902) ... 31
Denson v. Board of Trustees of Alabama, 247 Ala. 257,
23 So. 2d 714 (1945) ................................ 31, 33
Ernst and Ernst v. U.S. Dist. Court for Southern Distr.
of Texas, 439 F.2d 1288 (5th Cir. 1971) ................. 28
Ex parte Alabama Educ. Television Commn, 151 So. 3d
283 (Ala. 2013) .......................................... 8
Ex parte Alabama Textile Products Corp., 242 Ala. 609,
7 So. 2d 303 (Ala. 1942) ............................ 32, 33
Ex parte Barger, 243 Ala. 627, 11 So. 2d 359 (1942) .. 31, 33
Ex

parte

Davis,

2015

WL

567479

at

*4,

No.

1140456

(February 11, 2015) (Bolin, J. concurring) .... 5, 6, 24, 34

Ex parte DuBose, 54 Ala. 278 (1875) ...................... 21

iv

Ex parte General Motors of Canada, Ltd., 144 So. 3d 236

(Ala. 2013) ............................................. 29
Ex parte Giles, 133 Ala. 211, 32 So. 167 (1902) .......... 31
Ex parte Izundu, 568 So. 2d 771 (Ala. 1990) ............... 8
Ex parte Jim Walters Resources, Inc., 91 So. 3d 50
(Ala. 2012) ............................................. 26
Ex parte King, 50 So. 3d 1056 (Ala. 2010) ......... 9, 10, 14
Ex parte Morgan, 259 Ala. 649, 67 So. 2d 889 (1953) .. 32, 34
Ex parte Novartis Pharm. Corp., 991 So. 2d 1263 (Ala.
2008) ............................................... 21, 25
Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810 (Ala.
2013) ................................................... 26
Ex parte Pearson, 76 Ala. 521 (1884) ..................... 31
Ex parte Price, 252 Ala. 517, 41 So. 2d 180 (1949) ....... 31
Ex parte Russell, 29 Ala. 717 (1857) ..................... 32
Ex parte State ex rel. Attorney Gen., 47 So. 742 (Ala.
1908) ............................................... 32, 37

Ex parte State of Alabama ex rel Fob James, 711 So. 2d

952 (Ala. 1998) ......................................... 36
Ex parte Tubbs, 585 So.2d 1301 (Ala. 1991) ....... 30, 31, 33
Ex parte U.S. Bank Nat. Assn, 148 So. 3d 1060 (Ala.
2014) ................................................... 27
Fox v. McDonald, 101 Ala. 51, 13 So. 416 (1893) ...... 32, 35
Gray v. State ex rel. Garrison, 164 So. 293 (Ala. 1935) .... 18
Hess v. Butler, 379 So. 2d 1259 (Ala. 1980) .............. 23
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)12, 13, 15, 16
Hunt v. State, 641 So. 2d 270 (Ala. 1994) ............ 20, 28
Kendrick v. State ex rel. Shoemaker, 54 So. 2d 442 (Ala.
1951) ............................................... 17, 18
Kids Care, Inc. v. Alabama Dept of Human Res., 843
So. 2d 164 (Ala. 2002) .............................. 10, 14
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....... 9
Marshall Cnty. Bd. of Educ. v. State ex rel. Williams,
42 So. 2d 24 (Ala. 1949) .............................. 17

vi

Matson v. Laurendine, 74 So. 370 (Ala. 1917) ............ 18

Mitchell v. McGuire, 244 Ala. 73, 12 So. 2d 180 (1943) ... 22
Mooring v. State, 207 Ala. 34, 91 So. 869 (1921) ......... 17
Morrison, 273 Ala. at 392, 141 So. 2d at 170 ............. 19
Patzka v. Hooks, 9 So. 3d 571 (Ala. Crim. App. 2007) ..... 34
Probate Judge v. Sherer, et al., 145 Ala. 501, 40 So.
279, 280 (1906) ......................................... 21
Ramaguano v. Crook, 88 Ala. 450, 7 So. 247 (1890) ........ 31
Rutledge v. Baldwin Co. Commn, 495 So. 2d 49 (Ala.
1986) ................................................... 35
State ex rel. Chilton County v. Butler, 225 Ala. 191,
142 So. 531 (1932) .................................. 16, 17
State ex rel. Foshee v. Butler, 225

Ala. 194, 142 So.

533 (1932) ...................................... 16, 17, 19

State ex rel. Holcombe v. Stone, 166 So. 602 (Ala.
1936) ................................................... 17
State ex rel. Tallapoosa Cnty. v. Butler, 227 Ala. 212,
149 So. 101 (1933) ...................................... 20
vii

State ex rel. Turner v. Henderson, 74 So. 344 (Ala.

1917) ................................................... 18
State v. Hewlett, 124 Ala. 471, 27 So. 18 (1899) ......... 31
State v. Prop. at 2018 Rainbow Drive, 740 So. 2d 1025
(Ala. 1999) ............................................. 10
Town of Cedar Bluff v. Citizens Caring for Children,
904 So. 2d 1253 (Ala. 2004) ................. 10, 11, 14, 15
Statutes
Ala. 12-11-30(4) ....................................... 31
Ala. 12-11-31 .......................................... 31
Alabama Code 12-2-7 .................................... 30
Franks v. Norfolk Southern Ry. Co., 679 So. 2d 214(Ala.
1996) ................................................... 31
Other Authorities
Ala. Const. of 1901, Art. IV, 140, Amend. 328 .......... 30
Alabama

Law

Institute,

Handbook

for

Alabama

Probate

Judges (9th Ed. 2013) ................................... 34

viii

Rules
Ala. R. App. P. 21(a)(1)(E) .............................. 26

ix

ANSWER AND BRIEF IN RESPONSE TO THE

PETITION FOR WRIT OF MANDAMUS
COMES NOW Robert M. Martin, in his official capacity as
Judge of Probate for Chilton County, Alabama, and answers
the

Petition

original

for

Writ

Petition

Petitioners

lack

of

is

Mandamus.

due

to

standing;

be

This

unprecedented

denied

Petitioners

as

are

follows:

not

proper

relators on behalf of the State; Petitioners cannot satisfy

any

of

the

requirements

Administrative

Order

by

for
the

the
Chief

mandamus;
Justice

and

was

the

issued

without proper authority.

Despite the implicit invitation of Petitioners (and the
explicit statements of Amicus Curiae the Eagle Forum of
Alabama), the ultimate issue as to the constitutionality of
Alabama

law

banning

before this Court.1

this

issue,

there

same-sex

marriage

is

not

properly

Given the current procedural posture of

are

no

grounds

on

which

this

unprecedented original Petition may be granted.

If it were, Respondent Judge Martin suggests that this

case would be nonjusticiable as to him because of a lack of
case or controversy, as Respondent Martin fully supports
the Attorney Generals defense of Alabamas ban on same sex
marriage.

STATEMENT OF FACTS
In

addition

to

the

statement

of

facts

listed

in

paragraphs 1-4 of the Petition, Respondent Martin adds the

following:
1.

The

Alabama

Probate

Judges

Association

(APJA)

filed a Motion for Leave to Appear as Amicus Curiae in

support of the Motion for Entry of a Stay filed by the
Attorney General on January 25, 2015.
2.

On

January

28,

2015,

at

the

request

of

the

plaintiffs, in response to certain statements made by the

case entered an

APJA, the district court in the Searcy

Order Clarifying Judgment.

The district court entered an

Order Clarifying Judgment stating:

Because the court has

entered a stay of the Judgment in this case, neither the

named

Defendant,

currently

nor

required

the

to

Probate

follow

or

Courts

in

uphold

Alabama

the

are

Judgment.

However, if the stay is lifted, the Judgment in this case

makes it clear that Ala. Const. Art. I, 36.03 and Ala.
Code 30-1-19 are unconstitutional because they violate
the Due Process Clause and the Equal Protection Clause of
the

Fourteenth

Amendment.

(Ex.

C,

Order

Judgment, attached as Attachment A, p. 2.)

2

Clarifying

The Court went

on to further state the effect that a refusal to comply

with the Judgment would have on probate judges who refused
Id. at p. 3.

to follow her ruling.

3.

After the Attorney General filed a motion with the

Eleventh Circuit to extend the stay, the APJA and Governor

Bentley filed leave to appear as amicus curiae in support
of the motion of the Attorney General for a stay.
4.

On February 3, 2015, the Eleventh Circuit entered

an Order granting leave for the APJA and Governor Bentley

to

appear

as

amicus

curiae

in

support

of

the

Attorney

Generals request for stay and then denied the Attorney

General of the State of Alabama Motion for Stay pending
appeal.
5.
to

(See Attachment B hereto.)

The Plaintiffs then filed a motion in Searcy case

immediately

lift

the

stay,

which

was

denied

by

the

district court on February 3, 2015, in order to allow the

Probate Courts of this state to be completely prepared for
compliance

with

the

rulings

in

this

case

and

in

the

Strawser case in the event the stay was not extended by

the U.S. Supreme Court.
6.
Public

On

February

Health

sent

(See Attachment C hereto.)

5,
a

2015,

new

the

Alabama

Certificate
3

of

Department
Marriage

of

form

designed

to

accommodate

same-sex

marriages

via

email

to

every probate judge in the state, advising them to begin

using

the

new

form

on

Monday,

February

9,

2015.

(See

Attachment D hereto.)
7.

Respondent

Probate

Judge

Bobby

Martin

contacted

the office of the Attorney General during the pendency of

the stay and requested advice on what to do beginning on
Monday, February 9, 2015, when the stay would be lifted.
He received no advice or guidance from the Attorney General
in response to his request.
8.

On

February

9,

2015,

the

Supreme

Court

of

the

United States denied the application for stay filed by the

Attorney General for the state.
9.
release

That same day, the Attorney General issued a press

in

response

to

the

stating in pertinent part:

talk

to

(See Attachment E hereto.)

their

attorneys

respond to the ruling.

agencies

with

Strawser

to

questions
contact

Supreme

Courts

decision,

I advise probate judges to

and

associations

about

how

to

Furthermore, I encourage any state

about
the

the

ruling

Governors

Attachment F hereto.)

in

Searcy

Office.

and
(See

10. Shortly thereafter, the Governor likewise issued a

press release, stating in pertinent part, that
This issue has created confusion with conflicting
direction for Probate Judges in Alabama.
Probate
Judges have a unique responsibility in our state,
and I support them.
I will not take any action
against Probate Judges, which would only serve to
further complicate this issue.
(See Attachment G hereto.)
11. On February 9, 2015, the Plaintiffs in Strawser
case filed an Emergency Motion for Leave to File a First
Amended Complaint to add plaintiffs, to add as defendant
Probate
That

Judge

same

Don

day,

Davis,

the

and

Attorney

to

request

General

an

filed

injunction.
a

response

stating he did not object to the Amended Complaint.

The

Amended Complaint was allowed, and a hearing was set as to

the request for preliminary injunction.
12. Probate Judge Don Davis filed a petition with the
Alabama

Supreme

Court

authority to follow.

requesting

guidance

on

which

On February 11, 2015, this Court

issued an Order denying the Petition filed by the Mobile

County Probate Judge because it was in essence a request
for an advisory opinion. See Ex parte Davis.
13. On
Strawser

February

entered

an

12,

2015,

Order

once
5

the
again

district

court

declaring

in

Alabama

same-sex marriage ban to be unconstitutional and enjoining

Probate Judge Don Davis from refusing to issue marriage
licenses

to

Plaintiffs

due

prohibit same-sex marriage.

to

the

Alabama

laws

which

(See Attachment H hereto.)

STATEMENT OF WHY WRIT SHOULD NOT ISSUE

Over the past four weeks, probate judges in Alabama
have stared down the barrel of two diametrically opposed
forces facing a no win situation in the exercise of a
ministerial act.

As Justice Bolin so eloquently observed

in his recent concurring opinion:

The ensuing legal 'circus' has left the probate
judges, who had no voice or opportunity to be
heard in this matter, in an untenable position - caught between a federal district judge's
order, the statewide precedential value of which
is uncertain, and an order from the Chief Justice
If the term
of the Alabama Supreme Court.
"circus" is hyperbole, the current predicament at
least qualifies as a 'darned if I do, darned if I
don't dilemma for the probate judges, and this is
fairly, and deliberately
no way to wisely,
administer justice.
Ex parte Davis, 2015 WL 567479 at *4, No. 1140456 (February
11, 2015) (Bolin, J. concurring).2

This crisis was in no

way created by the probate judges.

It is the result of a

Another probate judge in this state has remarked that he

feel[s] like a ping-pong ball.

refusal

of

the

federal

courts

to

issue

stay

pending

resolution of the ultimate issue.

Probate
letters

from

judges

throughout

advocacy

groups

this
on

state
both

emotional and highly charged issue.3

General

nor

advice.

Thus

the

Governor

many

probate

have

sides

received
of

this

Neither the Attorney

given

judges,

have

probate

facing

judges

the

threat

any
of

expensive litigation, have chosen the path of following the

decisions of an Alabama federal district court that issued
rulings with dictum clearly aimed at probate judges who
refused to issue same-sex marriage licenses (bolstered by
the refusal of federal appellate and Supreme Court of the
United States to extend the stay).
As Justice Shaw stated in his dissent from the Order
requiring Respondents to answer the Petition In order to
grant relief to the petitioners, this Court will have to
conclude that a probate court is forbidden from following
an

Alabama

federal

district

courts

ruling

on

the

Groups have threatened lawsuits under 42 U.S.C. 1983

with resulting liability for attorneys fees.
Liberty
Counsel has offered a pro bono defense (albeit without
guaranteeing the payment of any attorneys fees) while
simultaneously bringing suit against judges who chose to
follow the orders of the federal courts.

constitutionality of the ministerial acts a probate court

performs, which ruling both a federal appellate court and
the Supreme Court of the United States have refused to stay
pending

appeal.

For

the

reasons

stated

herein,

the

Petition is due to be denied.

I.

PETITIONERS LACK STANDING TO BRING THIS ACTION.

Standing is the requisite personal interest that must

exist at the commencement of the litigation.

Shabani,

omitted).

So.
When

3d

460,

parties

462-63

(Ala.

without

Cadle Co. v.

2008)

standing

(quotations

purport[]

to

commence an action, the trial court acquires no subject

matter jurisdiction. Cadle Co., 4 So. 3d at 463. Without
subject matter jurisdiction, a court can do nothing but
dismiss
this

the

Court

appropriate.

action
find

forthwith.

standing

Accordingly,

Id.

lacking,

dismissal

should

would

be

See Ex parte Izundu, 568 So. 2d 771, 772-73

(Ala. 1990) (dismissing petition for writ of mandamus when

petitioner did not have standing to bring petition).
This Court has adopted the Lujan test as the means of
determining standing in Alabama.

Ex parte Alabama Educ.

Television Commn, 151 So. 3d 283, 287 (Ala. 2013), as

modified on denial of rehg (Jan. 24, 2014) (citing see Ex
8

parte King, 50 So. 3d 1056, 1059 (Ala. 2010)). Under the

Lujan test, standing requires the following three elements:
(1) an injury in fact, which is actual, concrete, and
particularized;

(2)

causal

connection

between

that

injury and the defendants conduct (i.e. traceability); and

(3) a likelihood that the injury can be redressed by a
favorable

decision

(i.e.

redressability).

Lujan

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

v.
In

regards to the injury in fact element, the Court explained

that "[b]y particularized, we mean that the injury must
affect the plaintiff in a personal and individual way."
Lujan, 504 U.S. at 560 n. 1.
Petitioners writ fails to identify any tangible injury
to a concrete interest caused by the federal courts ruling
on Alabamas marriage law, how the ruling caused any such
injury, or how this Court could redress any such injury to
the petitioners through issuance of an emergency writ. It
is

unclear

from

the

petition

even

what

precise

relief

Petitioners seek. These generalized interests asserted by

Petitioners
concrete,

fail

and

to

to

be

show

sufficiently
legally

petitioners.
9

particularized,

protected

personal

to

API, as an organization, asserts a general interest in

influencing public policy to preserv[e] . . . rule of
law, limited government, and strong families by publishing
studies showing the benefits to families of heterosexual
marriage

and

the

detriments

to

families

from

same-sex

marriages. (Petition at 9-10.) ALCAPs, similarly, asserts

a general interest by stating that it exists to lobby the
Alabama
and

Legislature

pro-moral

individuals

who

on

unspecified

issues
desire

on
a

behalf

pro-life,
of

family-friendly

pro-family

churches
environment

and
in

Alabama. (Petition, at 9-10.) Both this Court and the U.S.

Supreme Court, however, have held that similarly abstract
interests in promoting specific values and preferred policy
outcomes fail to qualify as legally protected right[s]
and that an alleged harm or impediment to such a value or
policy preference fails to constitute injury to a legally
protected right. See e.g. Ex parte King, 50 So. 3d 1056,
1060-61 (Ala. 2010); Town of Cedar Bluff v. Citizens Caring
for Children, 904 So. 2d 1253, 1255, 1256 (Ala. 2004);
Kids Care, Inc. v. Alabama Dept of Human Res., 843 So. 2d
164, 166-67 (Ala. 2002); State v. Prop. at 2018 Rainbow
Drive, 740 So. 2d 1025, 1027 (Ala. 1999).
10

In Town of Cedar Bluff, a political committee sued a

town and mayor to enjoin a local election over whether to
allow the sale alcoholic beverages on the basis that the
enabling

legislation

that

authorized

the

unconstitutional. 904 So. 2d at 1255.

the

trial

court

unconstitutional

declared

and

the

enjoined

election

After the election,

enabling

the

was

town

legislation

from

issuing

any

Id. at 1255.

licenses authorizing the sale of alcohol.

On

appeal, this Court found plaintiffs lacked standing to sue.

Id.

at

1259.

The

plaintiffs

claims,

which

were

more

specific than Petitioners assertions, that (1) citizens

and

voters,

invalid

including

election

unconstitutional

is

plaintiffs,
held

statute,

and

are

injured

when

an

of

an

as

the

result

(2)

the

introduction

of

alcohol sales into a town like Cedar Bluff . . . will

result in an injury to the towns welfare, health, peace
and

morals,

insufficient

Id.
to

at

1257-59.

establish

the

Both

claims

actual,

were

held

concrete

and

particularized injury in fact to plaintiffs as required to

satisfy the first element of standing.
Similarly

on

point,

the

U.S.

Id.
Supreme

Court

in

Hollingsworth v. Perry found that a private intervenors

11

initiative to amend the California state constitution to

define

marriage

as

union

between

man

and

woman,

lacked standing to defend the constitutionality of a duly

enacted constitutional amendment, after the state Attorney
General and other state official defendants (all of whom
had declined to defend the law in the District Court) chose
not to appeal. 133 S. Ct. 2652, 2662-64, 2668 (2013).

The

Hollingsworth intervenors interest in pursuing an appeal

was solely to vindicate the constitutional validity of a
generally applicable [state] law.

133 S. Ct. at 2662.

Similarly, in this case, Petitioners request that this

Court reiterate the requirements of Alabama law, and then
require all state probate judges to comply with that state
law, also seeks merely to vindicate enforcement of that law
-- even though that law does not affect either API, ALCAP,
or

any

known

or

individual way.

alleged

constituent

in

personal

and

Id. Both petitioners claim only harm to

[their] and every citizens interest in proper application

of the Constitution and laws, and seek[] relief that no
more directly and tangibly benefits [them] than it does the
public

at

large.

Hollingsworth,

133

S.

Ct.

at

2662.

However, that such a generalized grievance, no matter

12

how

sincere,

is

insufficient

to

confer

standing.

Id.

Clearly, the petitioners disagree with the federal district

courts

order.

The

presence

of

disagreement,

however

sharp and acrimonious it may be, is insufficient by itself

Hollingsworth, 133 S. Ct.

to meet standing requirements.

at 2661.
Even

if

Petitioners

generalized

interest

in

the

enforcement of the Alabama marriage statute and marriage

amendment were a legally protected right, their petition
fails to show that their interest was injured in fact.
Indeed, petitioners nowhere allege that they have been or
will be harmed by the challenged acts. Petitioners only
arguable
reference

allegations
to

the

of

harm

consist

[unspecified]

of:

statewide

1)

injury

passing
to

the

public caused by infidelity to Alabamas marriage laws; 2)

confusion and disarray resulting from some probate judges
issuing, and others refusing to issue, same-sex marriage
licenses, and 3)implicitly, the [unspecified] detriments
[to families] associated with same-sex unions -- which
petitioners have not alleged to have occurred, but which
arguably may be inferred from APIs publication of studies
asserting the existence of such harms.
13

See Petition, at

23,

25.)

All

of

those

allegations

fail

to

assert

that

Petitioners have been, or even will be, harmed itself.

parte

King,

plaintiffs

50

not

So.

3d

at

personally

1061-62

deprived

(no

of

standing

right

to

Ex

where

vote

or

denied equal treatment); Town of Cedar Bluff, 904 So. 2d at

1258

(failure

to

would suffer).

allege

particular

injuries

plaintiffs

Petitioners allegations fail to support

even that anyone else in particular has been or will be

harmed.

Nothing in petitioners complaint shows how or in

what manner petitioners or anyone else has been or will be

harmed.

E.g.,

respect

plaintiffs

allegedly

id.

at

1257

were

(failure

injured

unconstitutional

local

by

to

allege

the

option

holding

in

what

of

election);

the

Kids

Care, Inc., 843 So. 2d at 167 (lack of allegations how

DHRs

failure

to

perform

local

market

survey

harmed

plaintiff).
Even

if

petitioners

had

alleged

particular

harm,

whether to themselves or others, they failed to show how

and in what respect the respondent probate judges acts
harmed them in effect, asking this Court to presume those
acts caused them harm.

But, as this Court first made clear

over 150 year ago, for standing to exist, injury will not
14

be presumed; it must be shown.

So.2d at 1256.
The

Town of Cedar Bluff, 904

Petitioners have failed to so do.

claims

by

Petitioners

to

have

been

leading

proponent or to have vigorously promoted passage of the

Marriage Act and/or the Marriage Amendment, likewise, fail
to establish the standing of either to sue.

Even if either

API or ALCAP had performed an official role under Alabama

law in the passage of the Act or the Amendment which
neither did , upon approval of the Act and the Amendment
both measures became duly enacted law.
groups

lacked

measure.
stake

any

official

At that point, both

authority

to

enforce

either

Accordingly, both groups lacked any personal

in

defending

[either

laws]

enforcement

that

is

distinguishable from the general interest of every citizen

of [Alabama], as would be required to have standing to
defend those laws here.

Hollingsworth, 133 S. Ct. at 2663.

The Court in Hollingsworth explained the reasons not to

extend standing to private party proponents of a state
law to defend its validity or to seek its enforcement, as
petitioners seek here. On one hand, the State of Alabama
clearly

has

cognizable

interest

in

the

continued

enforceability of its laws that is harmed by a judicial

15

decision declaring a state law unconstitutional.

2664.

Id. at

But, [t]o vindicate that interest or any other,

[Alabama] must be able to designate agents to represent it

in court, id., which the State has not done with respect to
petitioners.
II. PETITIONERS ARE NOT PROPER PARTIES TO BRING THIS ACTION
ON BEHALF OF THE STATE.
Petitioners seek to remedy their obvious lack of standing
by purporting to bring their petition in the name of the
State, which they cannot do pursuant to well-established
Alabama law. The general rule is that an individual cannot
enforce a right owing to the government; certainly not in
any

case,

unless

he

sustains

an

injury

himself.

State ex rel. Foshee v. Butler, 225

195,

So.

142

533,

534

(1932);

see

also

peculiar

to

Ala. 194,

State

ex

rel.

Chilton County v. Butler, 225 Ala. 191, 142 So. 531 (1932).
Foshee and Chilton County were companion cases brought by a
private citizen and Chilton County, respectively, seeking a
writ

of

mandamus

against

the

State

Tax

Commissioner

compelling him to assess property owned by Alabama Power at

60 percent of its value, as required by law.

Foshee, 225

Ala. at 195, 142 So. at 534; Chilton County, 225 Ala. at

192;

142

So.

at

532.

This
16

Court

dismissed

both

cases

because the duty owed by the State Tax Commissioner was

owed

only

to

the

state

in

its

sovereign

capacity.

Foshee, 225 Ala. at 195, 142 So. at 534.

In so holding, this Court contrasted Foshee and Chilton
County

with

Mooring

v.

State,

207

Ala.

34,

91

So.

869

(1921), as follows:
But in that case, while relief was sought against
the same public officer as in this, and sought the
performance of an alleged public duty, and
therefore was properly in the name of the state as
formal party, the relief sought affected the
private right of relator, and therefore relator
had a better position than the relator in this
case.
Chilton County, 225 Ala. at 193; 142 So. at 533 (emphasis
added).

This Court has consistently allowed an individual

to bring an action in the name of the state to enforce a

public duty only when the relator had a concrete, tangible
interest

in

the

enforcement

of

the

duty.

See,

e.g.,

Kendrick v. State ex rel. Shoemaker, 54 So. 2d 442 (Ala. 1951)

(voter

in

Jefferson

County

sought

to

have

officials

provide voting machines); Marshall Cnty. Bd. of Educ. v. State

ex

rel.

Williams,

42

So.

2d

24

(Ala.

1949)

(parents

seeking enrollment of their children in school pursuant to recentlyenacted law); State ex rel. Holcombe v. Stone, 166 So. 602
(Ala. 1936)(sheriff seeking payment as required by law for
17

seizing

and

destroying

liquor);

Gray

v.

State ex rel.

Garrison, 164 So. 293 (Ala. 1935) (members of library board

seeking payment from county commission for funds for public
library); State ex rel. Matson v. Laurendine, 74 So. 370
(Ala. 1917) (property owner seeking order commanding tax
assessor to assess his property); State ex rel. Turner v.
Henderson, 74 So. 344 (Ala. 1917) (former Special Assistant
Attorney General seeking certificate from Governor proving
he was due partial contract payment).
When the alleged violation of law by a public official
does not affect any concrete right actually held by the
relator

or

other

members

of

the

public,

but

instead

concerns the sovereign rights of the State, it must be

instituted on the relation of the Attorney General, the law
officer

of

the

State.

Kendrick

v.

State

ex

rel.

Shoemaker, 256 Ala. 206, 213, 54 So. 2d 442, 447 (1951)

(emphasis added).
chose

to

Kendrick.

omit

It is extremely telling that Petitioners

this

(Petition,

language
pg.

in

21.)

their

quotation

Private

citizens

from
and

interest groups simply cannot commandeer the State in order to

seek court orders generally enforcing the law in the way they
see fit, when there is no concrete personal benefit involved.
18

See, e.g., Foshee, 225 Ala. at 195; 142 So. at 534.

Rather

it is only the state [that] may . . . enforce rights which

affect it in its sovereign capacity.

Id.

Petitioners invocation of the name of the State of

Alabama is improper.

These interest groups have only a

philosophical interest in the Marriage Act and the Marriage

Amendment and are seeking only to attempt to vindicate the
States sovereign interests.
stake,

to

allow

private

Regardless of the issue at

interest

groups

(represented

primarily by counsel residing outside the State of Alabama)

with no actual, concrete interests to usurp the role of the
duly elected executive officials of this State in order to
advance their political philosophies would be contrary to
well-established law and would greatly increase the chances
of inconsistency and uncertainty in the enforcement of the
laws.

See Morrison, 273 Ala. at 392, 141 So. 2d at 170

(recognizing that the State has a peculiar interest in the

uniformity of the activities of its regulatory boards).
Rather,

the

sole

responsibility

and

authority

for

protecting the validity of these laws lies with the State

of Alabama, through its Attorney General, whose efforts to
defend the laws are fully supported by Judge Martin.
19

III. PETITIONERS HAVE NOT MET THE

ISSUANCE OF A WRIT OF MANDAMUS.

REQUIREMENTS

FOR

THE

A writ of mandamus is a drastic and extraordinary

remedy employed to see that justice is done, but it shall
not issue if there is any doubt as to its necessity or
propriety,

requiring

that

the

petitioner

establish

the

following elements:
(1) A clear legal right in the petitioner to the
order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of the
court.
Hunt v. State, 641 So. 2d 270, 271 (Ala. 1994).

Mandamus,

being a discretionary writ, will not be granted, when it

would work injustice, or introduce confusion or disorder,
or where it would not promote substantial justice. State
ex rel. Tallapoosa Cnty. v. Butler, 227 Ala. 212, 215, 149
So. 101, 104 (1933).

20

A.

Petitioner does not have a clear legal right

to the order sought.
1.

This

Court

The resolution of the underlying legal

controversy in this case is unclear, and
this action is the inappropriate vehicle
to seek to resolve it.
has

explicated

the

requirement

that

the

petitioner have a clear legal right to the relief sought as

follows:
For the writ of mandamus to issue the right sought
to be enforced by mandamus must be clear and
certain with no reasonable basis for controversy
about the right to relief. The writ will not issue
where the right in question is doubtful.
This
Court does not issue the writ of mandamus based on
mere speculation as to the possible occurrence of
future events.
Ex parte Novartis Pharm. Corp., 991 So. 2d 1263, 1280 (Ala.
2008)

(internal

quotations

and

citations

omitted).

Further, mandamus will not issue if the petition would in

a collateral manner, decide questions of importance between
parties who are not parties to the proceedings, and have
had no notice or opportunity to interpose their defense.
Ex

parte

DuBose,

54

Ala.

278,

280-81

(1875);

see

also

Goodwin, Probate Judge v. Sherer, et al., 145 Ala. 501,

504, 40 So. 279, 280 (1906) (refusing to issue mandamus
when the petition presented distinct rights of different
persons, which cannot be joined in the same petition).
21

i.

The right in question is neither clear nor

certain,
but
is
instead
the
source
of
considerable controversy.

Petitioners have asserted that they have a clear legal

right to relief because the issuance of a marriage license
is a ministerial duty.

(Petition, pgs. 11-12, 20.)

As an

initial matter, to the extent that they imply that the

ministerial nature of this duty means that there is no
professional judgment involved, Petitioners discussion of
the nature of the issuance of marriage licenses goes too
far.

Immediately after the sentence quoted by Petitioners

from

Ashley

v.

State

in

support

of

this

proposition;

however, this Court noted that issuing marriage licenses

is a duty involving discretion official and personal...
109 Ala. 48, 49, 19 So. 917, 918 (1896) (emphasis added).4
Mandamus does not lie to compel an officer to issue a
license where the performance of that duty rests upon an
ascertainment of facts or the existence of conditions, to
be

determined

by

such

officer,

in

his

judgment

or

discretion unless the officers judgment and discretion is

For example, a probate judge must use his or her

professional judgment in evaluating the sufficiency of
proof of an applicants age.
See, e.g., Mitchell v.
McGuire, 244 Ala. 73, 76, 12 So. 2d 180, 182 (1943).
4

22

abused
manner.

and

exercised

Hess

v.

in

Butler,

an

arbitrary

379

So.

2d

and

1259,

capricious
1260

(Ala.

1980).
Regardless of the foregoing law, Judge Martin would
agree that, prior to the orders issued by the United States
District

Court

for

the

Southern

District

of

Alabama

in

Searcy v. Strange, No. 1:14-cv-208-CG-N, and Strawser v.

Strange, No. 1:14-cv-424-CG-C, and the decisions by both
the Eleventh Circuit Court of Appeals and the United States
Supreme Court refusing to extend the stay in this matter, a
probate judge could not issue a marriage license to a samesex couple under Alabama law.

Petitioners are correct that

the rulings in those cases are not necessarily binding on

any

probate

judge

(except

for

Mobile

County

Judge

Don

Davis, who has now been enjoined from refusing to issue

same sex marriage licenses).

Petitioners have supplied no

authority, however, to support their conclusion that the

fact that these rulings may not be binding renders them to
be wholly without consequence assumedly for the simple
reason that no such authority exists.
In this case, as aptly noted by Justice Bolin in his
concurring opinion in Ex parte Davis, the probate judges in
23

the State of Alabama have been placed in an untenable

position in which any decision made by a judge regarding
the issuance of same sex marriage licenses will subject him
or her to suit. Ex parte Davis, 2015 WL 567479 at *4, No.
1140456 (February 11, 2015) (Bolin, J. concurring).
to

the

expiration

of

the

initial

stay,

Prior

Judge

Martin

contacted the Office of the Attorney General of the State

of Alabama to seek advice regarding this issue, which was
refused.

The Attorney General has since issued a public

statement

advising

probate

judges

to

talk

to

their

attorneys and associations about how to respond to the

federal court rulings.
Chief

Justice

(Attachment G.)

released

his

The day after the

Administrative

Order

stating

that the Governor had the authority to take action against

any probate judge who issued same sex marriage licenses,
the Governor publicly stated that he would not take any
actions

against

Probate

Judges

and

that

Alabama

will

allow the issue of same sex marriage to be worked out

through the proper legal channels.

(Attachment H.)

The legal rights at issue in this case are thus very

far from clear.
Attorney

After seeking advice as recommended by the

General,

Judge

Martin,
24

along

with

many

other

probate judges, made the decision to respect the injunction

and, as suggested by the Governor, allow the issue to be
worked out through the proper legal channels by the proper
legal authorities, i.e., through the United States Supreme
Court by those specifically empowered to defend these laws.5
There is no precedent entitling a private non-profit group,
even one purporting to act in the interest of the State, to
the right to overturn this decision.
ii. The relief requested is speculative.
The fact that Petitioners do not have a clear legal
right to the relief they seek is further supported by the
See, e.g., Ex

extremely speculative nature of this relief.

parte

Novartis

Pharm.

Corp.,

991

So.

2d

at

1280.

Petitioners do not appear to be requesting that this Court

invalidate any licenses that have been issued, nor could
they do so without joining the couples with an interest in
those licenses.

The relief they requested is thus purely

prospective in nature; however, they have not provided any

evidence

to

suggest

that

Judge

Martin

will

in

fact

be

called upon to issue marital licenses to same-sex couples

5 Judge Martin agrees with and fully supports all actions

taken by the Attorney General in the defense of Alabamas

laws.
25

prior

to

Supreme

the

release

Court

of

decision

the

on

the

inevitable

United

matter.6

The

States

lack

of

supporting evidence alone militates in favor of dismissal.

Ala. R. App. P. 21(a)(1)(E); see also Ex parte Ocwen Fed.
Bank, FSB, 872 So. 2d 810, 813 (Ala. 2013).
The
easily

nature

of

the

differentiates

relief

itself

requested

from

Ex

parte

Resources, Inc., 91 So. 3d 50 (Ala. 2012).

20.)
nature

in

this
Jim

action
Walters

(Petition, pg.

The relief requested in that case was remedial in

and

jurisdiction.7

was

sought

under

91 So. 3d at 52.

the

Courts

appellate

This case accordingly does

not support for issuing a prospective mandamus forbidding

an event that may or may not happen at some unspecified
point in the future.

It is worth noting that Liberty Counsel has actually

suggested in an email that most same-sex couples intending
to marry in the interim prior to the release of a decision
by the U.S. Supreme Court have probably already obtained
licenses, which emphasizes the extremely speculative nature
of the relief requested in this Petition.
7
Petitioners correctly do not cite Ex parte Jim Walters
Resources,
Inc.
as
authority
that
this
Court
has
jurisdiction over this action. Although that case involved
an original petition to this Court, it was brought under
this Courts appellate jurisdiction, whereas Petitioners in
this case are seeking to bring this Petition under the
Courts general superintendence jurisdiction.
6

26

iii. The
relief
requested
necessarily
implicates collateral matters pertaining
to parties not before this Court.
The refusal to issue mandamus on any of the grounds
discussed infra would not require the Court to express any
opinion as to the constitutionality of either Art. I,
36.03, Alabama Constitution of 1901, or of Ala. Code 301-19.

In contrast, this Court cannot decide that this law

imposes a ministerial duty to refrain from issuing same sex

marriage licenses without at least implicitly holding that
these

laws

are

valid,

which

is

the

subject

of

several

collateral actions with parties not joined here.8

proper

case,

this

Court

would

of

course

have

In a
the

jurisdiction to make such a determination independently of

the rulings of a federal district court, conceivably even
via

petition

for

writ

of

mandamus

Courts appellate jurisdiction.

Nat.

Assn,

(discussing

148

So.

availability

3d
of

1060,

issued

under

this

See Ex parte U.S. Bank

1066-1069

mandamus

in

(Ala.

cases

2014)

involving

While the Petition attempts to skirt this issue, the

necessity of such a conclusion to relief is made clear by
the Brief that the Eagle Forum has sought leave to file as
amicus curiae for Petitioners, in which substantive
questions related to the jurisdiction of the federal courts
over marriage.

27

pure legal disputes); cf. Ernst and Ernst v. U.S. Dist.

Court for Southern Distr. of Texas, 439 F.2d 1288, 1293 (5th
Cir.

1971).

This

determination,
Respondents

are

is

not

however,
the

proper

because

proper

case

to

neither

parties

to

make

such

Petitioners
bring

this

nor

issue

before this Court, as neither have an actual legal interest

in the substantive issue.9
iv. No legal right may vest in Petitioner.
It is not enough merely to establish the existence of a
clear legal right; in order to be granted a mandamus, a
petitioner must show that this right actually belongs to
him.

See, e.g., Hunt, 641 So.2d 271 (mandamus requires a

clear

legal

right

in

the

petitioner).

As

discussed

supra, Petitioners in this case do not have standing and

are not proper parties to bring this Petition.

Therefore,

they do not have a clear legal right to the relief sought.

If it were to be found that Judge Martin, in his official

capacity, had an actual legal interest in the substantive
issue, he would agree fully with the positions taken by the
Attorney General in support of the laws forbidding same-sex
marriage, thus rendering this case nonjusticiable because
of the lack of a case or controversy.

28

B.

Petitioner cannot establish an imperative duty

to act on the part of Judge Martin.

Given the circumstances surrounding the issue of samesex marriages in Alabama discussed supra, Petitioner cannot
establish

that

Judge

Martin

has

the

imperative

duty

to

refuse to issue marriage licenses to same-sex couples on

the authority of a law that the Attorney General has been
enjoined from enforcing, which injunction the United States
Supreme Court has refused to stay.

See, e.g., Ex parte

General Motors of Canada, Ltd., 144 So.3d 236, 245 (Ala.

2013) (Second, where there is no clear legal right to
the order sought, there can be no imperative duty for the
trial court to act.)
C.

Petitioner cannot establish

another adequate remedy.

the

lack

of

The Petition states only that Relators have no other

remedy

against

Respondent;

it

does

not

even

attempt

to

argue that the State of Alabama would not have another

adequate remedy.

The fact that the groups filing this

Petition admittedly have no right to interfere with the

issuance

of

marriage

licenses

to

same-sex

couples

only

emphasizes their lack of standing and the fact that they

are not proper parties to this action, as discussed supra.
29

The State of Alabama, however, certainly has other remedies

available

to

it.

authority

and

As

discussed

responsibility

of

supra,
the

it

is

Attorney

the

sole

General

to

take necessary legal action to protect the sovereignty of

the

State.

enjoined

The

from

Attorney

direct

General

enforcement,

has
but

of

he

course

been

still

ably

invoked

the

is

defending the laws at issue.

D.

Petitioner has not properly

jurisdiction of this Court.

[T]he question of jurisdiction is always fundamental.

Ex parte Tubbs, 585 So. 2d 1301, 1302 (Ala. 1991).
addition

to

its

appellate

jurisdiction,

this

Court

In
has

original jurisdiction, inter alia, to issue such remedial

writs or orders as may be necessary to give it general
supervision
jurisdiction.
328.

and

control

of

courts

of

inferior

Ala. Const. of 1901, Art. IV, 140, Amend.

Alabama Code 12-2-7 further clarifies this Courts

original jurisdiction, providing that it may exercise this

jurisdiction in the issue and determination of writs of
quo warranto and mandamus in relation to matters in which
no other court has jurisdiction. 12-2-7(2). This Court
has consistently held in accordance with this law (which
has been codified since the 19th Century) that it does not
30

have original jurisdiction to hear a petition for writ of

mandamus.

Ex parte Tubbs, 585 So. 2d at 1302; Ex parte

Price, 252 Ala. 517, 41 So. 2d 180 (1949); Denson v. Board

of Trustees of Alabama, 247 Ala. 257, 258, 23 So. 2d 714,
715 (1945); Ex parte Barger, 243 Ala. 627, 628, 11 So.2d
359, 360 (1942); Christopher v. Stewart, 133 Ala. 348, 35253, 32 So. 11, 13 (1902); Ex parte Giles, 133 Ala. 211,
212, 32 So. 167, 167 (1902); State v. Hewlett, 124 Ala.
471, 474, 27 So. 18, 19 (1899); Ramaguano v. Crook, 88 Ala.
450, 452, 7 So. 247, 247 (1890); Ex parte Pearson, 76 Ala.
521, 523 (1884).
Petitioners admit, as they must, that the Circuit Court
of

the

respective

counties

would

certainly

have

See, e.g., Ala.

jurisdiction over each probate judge.

12-11-30(4); Ala. 12-11-31; Franks v. Norfolk Southern

Ry.

Co.,

679

circuit

courts

action,

this

So.2d
would
Court,

214,
have

216

(Ala.

1996).

jurisdiction

respectfully,

Because

over

lacks

an

the

the

original
necessary

jurisdiction and must dismiss this Petition.

Petitioners, however, have completely ignored 12-27(2),

instead

incorrectly

invoking

the

general

grant

of

authority under Art. IV, 140(b) and 12-2-7(3) as the

31

basis
cannot

for

this

suffice

Courts
to

give

jurisdiction.
this

Court

This

law

jurisdiction

simply
over

an

original writ of mandamus, particularly where, as here, the

act sought to be compelled by mandamus is not a judicial
function, but is instead an executive function.

See, e.g.,

Fox v. McDonald, 101 Ala. 51, 13 So.416 (1893) (discussing

executive powers wielded by probate judges).
under

these

provisions,

this

Court

Further, even

generally

refuses

to

entertain an original petition if a lower court has the

See, e.g., Ex parte Morgan, 259 Ala.

authority to do so.

649, 651, 67 So. 2d 889, 890 (1953) (certoriari); Ex parte

State ex rel. Attorney Gen., 47 So. 742, 742 (Ala. 1908)
(rule nisi); Ex parte Town of Roanoke, 117 Ala. 547, 548,
23 So. 524, 525 (1898) (habeas corpus); Ex parte Russell,
29 Ala. 717, 718 (1857) (prohibition).
Petitioners
exception

to

have

this

asked

rule

this

developed

Court
in

to

Ex

apply

parte

the

Alabama

Textile Products Corp., 242 Ala. 609, 613, 7 So.2d 303, 306
(Ala.

1942).

Again,

Ex

parte

Alabama

Textile

Products

Corp. is wholly inapplicable in this action for the simple

reason that it only concerned an original petition for writ
of certiorari, not a petition for writ of mandamus.
32

242

Ala. at 612, 7 So.2d at 305.10

Accordingly, no authority

exists that would allow the application of this exception

to the instant Petition for Writ of Mandamus.
Even

if

it

were

not

inappropriate

to

apply

exception in this case, it would be unwarranted.

this

Ex parte

Alabama Textile Products Corp. presented a unique factual

and procedural situation in that there did not initially
appear to be any lower court with authority in that case.
242 Ala. at 613, 7 So. 2d at 306.

Although this Court

held, as a matter of first impression, that the Circuit

Court of Montgomery County would have jurisdiction, it kept
jurisdiction

over

the

substance

of

the

original

appeal

mainly because the parties in the case agreed it would be

appropriate
justice.

to

afford

full

Id. at 614, 306.

relief

and

do

complete

The Parties in this case do

not agree that this Court has original jurisdiction; thus

There is admittedly dicta in the three cases dealing with
original petitions for writs of mandamus that have been
issued since Ex parte Alabama Textile Products Corp.
appearing to recognize the existence of this exception;
however, the Court in all three cases refused to apply this
exception without analysis or explanation, instead holding
in each case that it lacked jurisdiction to hear the
original petition.
Ex parte Tubbs, 585 So.2d at 1302;
Denson v. Board of Trustees of Alabama, 247 Ala. at 258, 23
So.2d at 715; Ex parte Barger, 243 Ala. at 628, 11 So.2d at
360.
10

33

this exception does not apply.

Ex parte Morgan, 259 Ala.

649, 651, 67 So. 2d 889, 890 (1953).11

Finally,
contemplate
Petitioner

both
the

has

Art.

IV,

issuance

not

140(b)

only

requested

any

of

and

12-2-7(3)

remedial

remedial

writs.

action,

but

instead seeks the issuance of a prospective writ forbidding

future action.

This Petition is nothing more in substance

than a request for an advisory opinion, which this Court

has previously refused to issue in this matter.

Because

this Court does not have jurisdiction to hear this case, it

is due to be dismissed.
IV. The Administrative Order Does Not Provide a Basis for a
Writ of Mandamus.
The Chief Justice has wide powers pursuant to 12-230(b)(7) and (8) Ala. Code. 1975, but the question arises
as

to

whether

those

powers

apply

to

probate

administrative, as opposed to judicial, actions.

Davis, 2015 WL 567479 at *4.

judges
Ex parte

(Bolin, J. concurring).

As

Further, if this case were at all relevant, Respondents

would argue that it is wrongly decided as being an
unwarranted departure from accepted precedent. It is worth
noting that the continued validity of a portion of this
holding has been questioned in light of other precedent.
Patzka v. Hooks, 9 So.3d 571, 574 (Ala. Crim. App. 2007)
(Shaw, J., concurring).
11

34

stated by Justice Bolin, probate judges wear many hats.

See generally, Alabama Law Institute, Handbook for Alabama
Probate

Judges

(9th

Ed.

2013).

Probate

Judges

exercise

judicial, administrative/executive and, for probate judges

in 13 Alabama counties that serve as Chairman of the County
Commission, legislative functions.12
The Alabama Code grants extensive executive powers to
probate judges.

In many of these, the probate judge either

works under the direction of a state department or utilizes

state

forms.

pursuant

to

Probate
rules

Public Safety.

and

judges

renew

regulations

of

drivers
the

licenses

Department

of

In doing so, they act as agents of the

Department of Public Safety for the purpose of collecting

and transmitting applications and fees for the issuance of
original
Baldwin

or

renewal

drivers

licenses.

Co.

Commn,

495

2d

So.

49,

53

Rutledge
(Ala.

v.

1986).

Further, pursuant to a probate judges responsibilities in

issuing

hunting

and

fishing

licenses

and

boat

licenses

probate judges act pursuant to rules and regulations of the

See Fox v. McDonald, 101 Ala. 51, 13 So. 416, 419 (1893)
(discussing that the court of county commissioners, of
which probate judges at the time chaired, primarily
exercised executive and legislative powers).

12

35

Alabama

Department

of

Conservation.

With

respect

to

business licenses and automobile tags, probate judges act

pursuant

to

rules

and

regulations

of

the

Department

of

Revenue.

With respect to the issuance of marriage license,

a probate judge utilizes a form developed by the Health

Department.
mortgages,
such

Probate
corporate

compliance.

judges

further

filings
Probate

and

collect

judges

election officer for the county.

record

serve

fees
as

deeds

and

regarding
the

chief

All of these functions

are clearly executive/administrative in nature and are not

judicial functions.
A.

The Chief Justice Lacks The Authority To Issue

An Administrative Order Unrelated To Probate
Judges Judicial Functions.

This Court in Ex parte State of Alabama ex rel Fob

James, 711 So. 2d 952 (Ala. 1998) discussed the limitations
of the Chief Justice as administrative head of the judicial
system.

The Chief Justice, in issuing the Administrative

Order, relied on Ala. Code 12-2-30(b)(7) and (8).

This

Court in Ex parte State rejected the proposition that the

Chief Justice possessed the unilateral authority to issue
administrative

orders.

The

source

of

his

specific

authority is the Court, itself, as expressed elsewhere in

36

the Constitution and the Code of Alabama.

963.

711 So.2d at

The significance of this authority resting in the

Supreme Court is that it requires the concurrence of a

majority of the Court.

Id. at 963-64.13

Further, in the Administrative Order entered by the

Chief Justice, there were many findings and rulings of law
contained in the various whereas paragraphs.

It then

went further to order and direct the probate judges not to

issue or recognize as marriage licenses inconsistent with
constitutional provisions ruled unconstitutional in Searcy
and

Strawser.

This

clearly

is

not

administrative

in

nature, but a judicial pronouncement for which there is no

authority.
Moreover, under this Courts precedent as well as the
Constitution,

statutes,

and

Alabama

Rules

of

Appellate

Procedure, the Chief Justice lacks the authority to enter

such orders as to the administrative as opposed to judicial

Indeed, as a hornbook principle of practice and

procedure, no appellate pronouncement becomes binding on
inferior courts unless it has the concurrence of a majority
of the Judges or Justices qualified to decide the cause.
Simply stated, action by the Chief Justice is not
synonymous with action by the Court. Id at 964.
13

37

functions

of

judge.14

probate

To

allow

the

judicial

branch of government to intrude to such an extent into the

executive branch of government would lead necessarily to a
violation

of

the

principles

of

separation

of

powers

in

Article III, Section 43 of the Constitution.

B.

The

The Administrative Order itself recognizes

that enforcement may only be had through the
Governor enforcing the Order.

Administrative

Order

concludes

with

statement

that [s]hould any Probate Judge of this state fail to

follow

the

stated,

it

Constitution
would

be

and

the

the

statutes

of

responsibility

of

Alabama
the

as

Chief

Executive Officer of the State of Alabama, Governor Robert

Bentley,

in

whom

the

Constitution

vests

the

supreme

executive power of this state Art. V, Section 113, Ala.

Const. 1901, to ensure the execution of the law.
Administrative Order at 5-6.

See

The Administrative Order by

its very terms recognizes that it is the responsibility of

the executive branch to enforce the laws of this state.
If, for instance, the Chief Justice could enter an order
with respect to whether a probate judge issues a marriage
license on a form promulgated by the Department of Public
Health of this state, can the Chief Justice also issue
administrative orders with respect to how a probate judges
renew
drivers
licenses,
issue
hunting
and
fishing
licenses, issue boat licenses and issue automobile tags?

14

38

Because the Governor has already stated that he will not

take

any

action

against

probate

judge

that

issues

license to a same-sex couple, and the Attorney General is

enjoined from doing so, this Court should likewise refrain
from entering into the province exclusively reserved for
the executive branch of government.
CONCLUSION
Respondent

Chilton

County

Probate

Judge

Robert

M.

Martin hereby respectfully requests that this Petition be

denied and dismissed for the reasons stated herein.
Respectfully submitted this 18th day of February, 2015.
s/Kendrick E. Webb
Kendrick E. Webb (WEB022)
s/Jamie H. Kidd
Jamie Helen Kidd (HIL060)
s/Fred L. Clements
Fred L. Clements (CLE044)
Attorneys for Respondent
Hon. Robert M. Martin
WEBB & ELEY, P.C.
P. O. Box 240909
Montgomery, AL 36124
(334) 262-1850
(334) 262-1889 Fax
E-mail: kwebb@webbeley.com
E-mail: jkidd@webbeley.com
E-mail: fclements@webbeley.com
39

CERTIFICATE OF SERVICE
I hereby certify that on this the 18th day of February,
2015, I have served copies of this Answer and Brief of
Respondent Robert M. Martin, by electronic mail, on the
following:
ATTORNEYS FOR PETITIONER:
Matthew D. Staver
Horatio G. Mihet
Roger K. Gannam
LIBERTY COUNSEL
P. O. Box 540774
Orlando, FL 32854
mstaver@LC.org
court@LC.org
hmihet@LC.org
rgannam@LC.org
Eric Johnston
Suite 107
1200 Corporate Drive
Birmingham, AL 35242
eric@aericjohnston.com
Samuel J. McLure
The Adoption Law Firm
P. O. Box 2396
Montgomery, AL 36102
sam@theadoptionfirm.com

40

ATTORNEYS FOR RESPONDENT HON. STEVEN L. REED:

Tyrone C. Means
H. Lewis Gillis
Kristen J. Gillis
Means Gillis Law, LLC
60 Commerce Street, Suite 200
Montgomery, AL 36103
tcmeans@meansgillislaw.com
hlgillis@meansgillislaw.com
kjgillis@meansgillislaw.com
Mark Englehart
Englehart Law Offices
9457 Alsbury Place
Montgomery, AL 36117
jmenglehart@gmail.com
Robert D. Segall
Copeland Franco Screws & Gill, PA
P. O. Box 347
Montgomery, AL 36101-0347
segall@copelandfranco.com
Thomas T. Gallion, III
Constance C. Walker
Haskell Slaughter & Gallion, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
ttg@hsg-law.com
ccw@hsg-law.com
Sam Heldman
The Gardner Firm, P.C.
2805 31st St. NW
Washington, DC 20008
sam@heldman.net

41

ATTORNEYS FOR RESPONDENT HON. ALAN L. KING:

Jeffrey M. Sewell
French A. McMillan
Sewell Sewell McMillan, LLC
1841 Second Avenue N., Suite 214
Jasper, AL 35501
jeff@sewellmcmillan.com
french@sewellmcmillan.com
G. Douglas Jones
Gregory H. Hawley
Christopher J. Nicholson
Jones & Hawley, P.C.
2001 Park Place, Suite 830
Birmingham, AL 35203
ghawley@joneshawley.com
cnicholson@joneshawley.com
ATTORNEY FOR RESPONDENT HON. TOMMY RAGLAND
George W. Royer, Jr.
Brad A. Chynoweth
Lanier Ford Shaver & Payne, P.C.
2101 West Clinton Avenue, Suite 102
Huntsville, AL 35804
gwr@lfsp.com
bac@lfsp.com
Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, AL 36130-0152
smclure@ago.state.al.us
/s/Kendrick E. Webb
Of Counsel

42