E-Filed

02/18/2015 @ 03:34:42 PM
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
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.

RESPONSE OF JUDGE DON DAVIS TO THE

EMERGENCY PETITION FOR WRIT OF MANDAMUS

COMES NOW Don Davis, Probate Judge of Mobile County, Alabama, and respectfully

files his response to Petitioners’ Emergency Petition for Writ of Mandamus, as follows:

1. The Emergency Petition for Writ of Mandamus filed on February 11, 2015 with this

Court on its face indicates that it does not apply to Judge Davis. Specifically, the Mandamus

Petition sets out that Judge Granade’s Order of January 23, 2015 directed to the Attorney

General, Luther Strange, did not apply to Judge Davis, who was not a party before Judge

Granade when the Order was issued. The Mandamus Petition States:

The plaintiffs before Judge Granade claimed that Judge Davis violated the Searcy
Injunction by not opening the marriage license division of the Mobile County
Probate Court on February 9, 2015. (Ord. (Ex. D) at 1.) In denying the motion,

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 Judge Granade acknowledged that Judge Davis was not a party to the case, FN 2
and was not ordered to do anything by the Searcy Injunction. Thus, Judge
Granade concluded, "Plaintiffs have offered no authority by which this court can
hold Davis in contempt or order any of the relief sought by Plaintiffs." (Ord. (Ex.
D) at 3.)
As shown above, Alabama probate judges are not bound by Judge Granade's legal
conclusions in either the Searcy or the Strawser Injunction. FN3 Thus, neither
Injunction provides any legal basis for a probate judge to disregard the clear
prohibitions against issuing marriage licenses to same-sex couples in the Marriage
Amendment and the Marriage Act. p. 18 of Petition for Mandamus.

The Mandamus Petition’s footnotes No. 2 and No. 3 further make clear that the Mandamus

Petition does not apply to Judge Davis.

Footnote No. 2 sets out: “Judge Davis was an original party to the case, but was

dismissed by stipulation of the parties. (Ord. (Ex. D) at 2 n.1.” However, this circumstance

totally changed when Judge Granade issued an Order on February 10, 2015, which set out:

Plaintiffs' motion to amend seeks to add three additional same-sex couples as

plaintiffs and to add Don Davis as a defendant in his official capacity as Probate
Judge of Mobile County, Alabama. The current Defendant, Attorney General
Luther Strange does not oppose Plaintiffs' request for leave to file an amended
complaint. (Doc. 43). . . . Plaintiffs seek to join Judge Davis as a defendant
because he allegedly refused to issue marriage licenses to all of the Plaintiffs'
named in the proposed Amended Complaint, despite this court having granted a
preliminary injunction to Strawser and Humphrey (Doc. 29) and despite this
court's ruling in Searcy v. Strange, SDAL Civil Action No. 14-00208-CGN, that
Alabama's laws prohibiting and refusing to recognize same-sex marriage are
unconstitutional. The proposed amendment will not cause undue delay or
prejudice, there is no indication of any bad faith or dilatory motive on the part of
the movants, and the amendment does not appear to be futile. There being no
substantial reason to deny leave to amend, the court must allow the amendment.
Accordingly, Plaintiffs' motion for leave to file an amended complaint is hereby
GRANTED.

Clearly, the premise for the Mandamus Petition is that the Probate Judges are not parties

in the cases before Judge Granade, and since Judge Davis is now a party before Judge Granade,

the Petition for Writ of Mandamus clearly does not apply to Judge Davis.

The Mandamus Petition also specifically sets out: “As shown above, Alabama probate

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judges are not bound by Judge Granade's legal conclusions in either the Searcy or the Strawser

Injunction.” The legal authority for this statement is set out in Footnote No. 3 which sets out as

follows:

FN3: No Alabama court is bound by a federal district court's ruling that an

Alabama statute is unconstitutional. See, e.g.. Doe v. Pryor, 344 F.3d 1282, 1286
(11th Cir. 2003) ("The only federal court whose decisions bind state courts is the
United States Supreme Court"); Buist v. Time Domain Corp., 926 So. 2d 290, 297
(Ala. 2005) ("United States district court cases . . . can serve only as persuasive
authority."); cf. Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 748 (Ala. 2009)(noting
"United States district court decisions are not controlling authority in this Court");
Ex parte Hale, 6 So. 3d 452, 462 (Ala. 2008), as modified on denial of rehng (Oct.
10, 2008) ("[W]e are not bound by the decisions of the Eleventh Circuit."); Ex
parte Johnson, 993 So. 2d 875, 886 (Ala. 2008) ("This Court is not bound by
decisions of the United States Courts of Appeals or the United States District
Courts."); Glass v. Birmingham So. R.R., 905 So.2d 789, 794 (Ala. 2004) ("Legal
principles and holdings from inferior federal courts have no controlling effect
here . . ."); Amerada Hess v. Owens-Corning Fiberglass, 627 So. 2d 367, 373 n.1
(Ala. 1993) ("This Court is not bound by decisions of lower federal courts.");
Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 n.2 (Ala. 1991)
("Decisions of federal courts other than the United States Supreme Court, though
persuasive, are not binding authority on this Court.").

However, these decisions cited in Footnote No. 3 do not apply to cases in which a state official,

such as Judge Davis, is directly before the federal court and subject to the personal jurisdiction of

the federal court. When a state official is subject to the jurisdiction of the federal court and the

federal court enters an Order which applies directly to that state official, such as Judge Davis in

this case, then the state official must obey the ruling of the federal court unless a stay has been

granted. There is persuasive authority to support this principle of law in both our state and

federal courts. See Glassroth, v. Roy S. Moore, 335 F.3d 1282 (11th Cir 2003) and Roy S.

Moore v. Judicial Inquiry Commission of the State of Alabama, 891 So.2d 848 (2004)

Finally, the Petition for Writ of Mandamus sets out an additional ground which also

supports Judge Davis’ Response herein:

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 Chief Justice Moore's Administrative Order provides a separate basis for
mandamus relief because it directly prohibits all Alabama probate judges from
issuing marriage licenses to same-sex couples in violation of the Marriage
Amendment and the Marriage Act. (Admin. Ord. (Ex. C) at 5.) The
Administrative Order is binding on all probate judges for the reasons stated in the
order.

Judge Davis has addressed this issue in his filings before this Court styled “in Rem Action” and

“Amended in Rem Action” regarding the above Administrative Order to the Supreme Court of

Alabama, Case No. 1140456. Judge Davis re-adopts these two petitions herein. Moreover,

Judge Davis urges this Honorable Court to confirm that Judge Granade’s Order of February 12,

2015 is in direct conflict with Chief Justice Moore’s Administrative Order of February 8, 2015.

Therefore, the Petition for Writ of Mandamus cannot be directed at Judge Davis.

CONCLUSION

WHEREFORE, premises considered, Judge Davis moves this Honorable Court to enter

an Order that the Emergency Petition for Writ of Mandamus filed on February 11, 2015 with this

Court does not apply to Judge Davis due to changing circumstances that are not reflected in the

Mandamus Petition. Primary among the changing circumstances is the fact that on February 12,

2015, when Judge Granade entered the order directly against Judge Davis in his official capacity,

Judge Davis was subject to the jurisdiction of the Southern District of Alabama and was under a

direct Order of that court. Thus, the Emergency Petition for Writ of Mandamus filed on February

11, 2015 does not apply to Judge Don Davis. Judge Davis further moves this Honorable Court

for such further relief as would be appropriate and just.

Respectfully submitted this 18th day of February 2015.

/s/ Lee L. Hale _________

LEE L. HALE
Attorney for the Honorable Don Davis,

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 Judge of the Probate Court of Mobile
County, Alabama
501 Church Street
Mobile, AL 36602
Phone: (251) 433-3671 ext 2
Lee.hale@comcast.net

/s/ J. Michael Druhan, Jr.______________

J. MICHAEL DRUHAN, JR.
Attorney for the Honorable Don Davis,
Judge of the Probate Court of Mobile
County, Alabama
Phone: (251) 432-8120
mike@satterwhitelaw.com

/s/ Harry V. Satterwhite_______________

HARRY V. SATTERWHITE
Attorney for the Honorable Don Davis,
Judge of the Probate Court of Mobile
County, Alabama
Phone: (251) 432-8120
harry@satterwhitelaw.com

CERTIFICATE OF SERVICE

I hereby certify that on this the 18th day of February, 2015, I electronically filed the
foregoing with the Clerk of the Court using the ACIS system which will send notification to the
following:

Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, AL 36130-0152
Phone: (334) 242-7447
smclure@ago.state.al.us

ATTORNEYS FOR PETITIONER:

Matthew D. Staver
Horatio G. Mihet

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Roger K. Graham
LIBERTY COUNSEL
Post Office Box 540774
Orlando, FL 32854
Phone: (800) 671-1776
mstaver@LC.org
court@LC.org
hmihet@LC.org
rgannam@LC.org

Eric Johnston
Suite 107
1200 Corporate Drive
Birmingham, AL 35242
Phone: (205) 408-8893
eric@aericjohnston.com

Samuel J. McLure
The Adoption Law Firm
Post Office Box 2396
Montgomery, AL 36102
Phone: (334) 612-3406
sam@theadaptionfirm.com

ATTORNEYS FOR RESPONDENT

HON. ALAN L. KING:
Jeffrey M. Sewell
French A. McMillan, LLC
1841 Second Avenue N., Suite 214
Jasper, AL 35501
Phone: (205) 544-2350
jeff@sewellmcmillan.com
French@sewellmcmillan.com

Greg Hawley
Chris Nicholson
Jones & Hawley, PC
2001 Park Pl Ste. 830
Birmingham, AL 35203
Phone: (205) 490-2290
ghawley@joneshawley.com
cnicholson@joneshawley.com

ATTORNEYS FOR RESPONDENT

HON. ROBERT MARTIN:

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Kendrick E. Webb
Jamie Helen Kidd
Fred L. Clements
Webb & Eley, P.C.
Post Office Box 240909
Montgomery, AL 36124
Phone: (334) 262-1850
kwebb@webbeley.com
jkidd@webbeley.com
fclements@webbeley.com

ATTORNEYS FOR RESPONDENT

HON. STEVEN L. REED:
Robert D. Segall
Copeland, Franco, Screws & Gill, P.A.
P.O. Box 347
Montgomery, AL 36101
Phone: (334) 420-2956
segall@copelandfranco.com

Thomas T. Gallion
Constance C. Walker
Haskell Slaughter & Gallion, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Phone: (334) 265-8573
ttg@hsg-law.com
ccw@hsg-law.com

Tyrone C. Means
H. Lewis Gillis
Kristen J. Gillis
MEANS GILLIS LAW, LLC
Post Office Box 5058
60 Commerce Street, Suite 200
Montgomery, AL 36103
Phone: (334) 270-1033
tcmeans@meansgillislaw.com
hlgillis@meansgillislaw.com
kjgillis@meansgillislaw.com

Mark Englehart
Englehart Law Offices
9457 Alsbury Place
Montgomery, AL 36117

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Phone: (334) 782-5258
jmenglehart@gmail.com

ATTORNEYS FOR RESPONDENT:

HON. TOMMY RAGLAND
George W. Royer, Jr.
Brad A. Chynoweth
Lanier, Ford Chaver & Payne, P.C.
P.O. Box 2087
2101 West Clinton Ave., Suite 102
Huntsville, AL 35804
Phone: (256) 535-1100
gre@lfsp.com
bac@Lanierford.com

ATTORNEYS FOR AMICUS CURIA EQUALITY OF ALABAMA:

Ayesha Khan
Americans United for Separation of Church and State
1301 K. Street, N.W.
Washington, DC 20005
Phone: (202) 466-3234
khan@au.org

J. Richard Cohen
David Dinielli
Southern Poverty Law Center
400 Washington Avenue
Montgomery, AL 36104
Phone: (334) 956-8200
Richard.cohen@splcenter.org
David.dinielli@splcenter.org

Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
870 Market St., Suite 370
San Francisco, CA 94102
Phone: (415) 392-6257
SMinter@nclrights.org
cstoll@nclrights.org

Randall Marshall
ACLU of Alabama Foundation
P.O. Box 6179
Montgomery, AL 36106

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rmarshall@aclualabama.org

ATTORNEYS FOR CURIAE EAGLE FORUM OF ALABAMA EDUCATION

FOUNDATION AND EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND
L. Dean Johnson
L. Dean Johnson, PC
4030 Balmoral Dr. SW
Huntsville, AL 35801
Phone: (256) 880-5817
dean@ldjpc.com

/s/ Lee L. Hale

OF COUNSEL