1140460 chilton county response

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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



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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



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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 Comm’n, 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



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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



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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. Ass’n, 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

Kid’s Care, Inc. v. Alabama Dep’t 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



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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. Comm’n, 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



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Rules

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



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ANSWER AND BRIEF IN RESPONSE TO THEPETITION 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 for Writ of Mandamus. This unprecedented

original Petition is due to be denied as follows:

Petitioners lack standing; Petitioners are not proper

relators on behalf of the State; Petitioners cannot satisfy

any of the requirements for the mandamus; and the

Administrative Order by the Chief Justice was 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 same-sex marriage is not properly

before this Court.1 Given the current procedural posture of

this issue, there are no grounds on which this

unprecedented original Petition may be granted.

1 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 General’s defense of Alabama’s ban on same sex

marriage.



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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

APJA, the district court in the Searcy case entered an

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, nor the Probate Courts in Alabama are

currently required to follow or uphold the 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 Clarifying

Judgment, attached as Attachment A, p. 2.) The Court went



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on to further state the effect that a refusal to comply

with the Judgment would have on probate judges who refused

to follow her ruling. Id. at p. 3.

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

General’s request for stay and then denied the Attorney

General of the State of Alabama Motion for Stay pending

appeal. (See Attachment B hereto.)

5.

The Plaintiffs then filed a motion in Searcy case

to 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. (See Attachment C hereto.)

6. On February 5, 2015, the Alabama Department of

Public Health sent a new Certificate of Marriage form



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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. (See Attachment E hereto.)

9.

That same day, the Attorney General issued a press

release in response to the Supreme Court’s decision,

stating in pertinent part: “I advise probate judges to

talk to their attorneys and associations about how to

respond to the ruling. Furthermore, I encourage any state

agencies with questions about the ruling in Searcy and

Strawser to contact the Governor’s Office.” (See

Attachment F hereto.)



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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. ProbateJudges 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 Judge Don Davis, and to request an injunction.

That same day, the Attorney General filed 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 requesting guidance on which

authority to follow. 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 February 12, 2015, the district court in

Strawser entered an Order once again declaring Alabama



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same-sex marriage ban to be unconstitutional and enjoining

Probate Judge Don Davis from refusing to issue marriage

licenses to Plaintiffs due to the Alabama laws which

prohibit same-sex marriage. (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

of the Alabama Supreme Court. If the term"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

no way to wisely, fairly, and deliberately

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

2 Another probate judge in this state has remarked that he

“feel[s] like a ping-pong ball.”



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refusal of the federal courts to issue a stay pending

resolution of the ultimate issue.

Probate judges throughout this state have received

letters from advocacy groups on both sides of this

emotional and highly charged issue.3 Neither the Attorney

General nor the Governor have given probate judges any

advice. Thus many probate judges, facing the threat 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 court’s ruling on the

3 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.



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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.” Cadle Co. v.

Shabani, 4 So. 3d 460, 462-63 (Ala. 2008) (quotations

omitted). When parties without standing “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 the action forthwith.” Id. Accordingly, should

this Court find standing lacking, dismissal would be

appropriate. 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 Comm’n, 151 So. 3d 283, 287 (Ala. 2013), as

modified on denial of reh’g (Jan. 24, 2014) (citing see Ex



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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) a causal connection between that

injury and the defendant’s conduct (i.e. traceability); and

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

favorable decision (i.e. redressability). Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 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 court’s ruling

on Alabama’s 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 fail to be sufficiently particularized,

concrete, and to show a legally protected personal to

petitioners.



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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.) ALCAP’s, similarly, asserts

a general interest by stating that it exists to lobby the

Alabama Legislature on unspecified “pro-life, pro-family

and pro-moral issues” on behalf of “churches and

individuals who desire a family-friendly environment 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);

Kid’s Care, Inc. v. Alabama Dep’t 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).



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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 election was

unconstitutional. 904 So. 2d at 1255. After the election,

the trial court declared the enabling legislation

unconstitutional and enjoined the town from issuing any

licenses authorizing the sale of alcohol. Id. at 1255. 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, including plaintiffs, are injured “when an

invalid election is held as the result of an

unconstitutional statute,” and (2) “the introduction of

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

result in an injury to the town’s ‘welfare, health, peace

and morals,’” Id. at 1257-59. Both claims were held

insufficient to establish the actual, concrete and

particularized injury in fact to plaintiffs as required to

satisfy the first element of standing. Id.

Similarly on point, the U.S. Supreme Court in

Hollingsworth v. Perry found that a private intervenors’



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initiative to amend the California state constitution to

define marriage as a union between a man and a 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 alleged constituent in a personal and

individual way. Id. Both petitioners claim “only harm to

[their] and every citizen’s 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



13

how sincere, is insufficient to confer standing.” Id.

Clearly, the petitioners disagree with the federal district

court’s order. “The presence of a disagreement, however

sharp and acrimonious it may be, is insufficient by itself

to meet” standing requirements. Hollingsworth, 133 S. Ct.

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 allegations of harm consist of: 1) a passing

reference to “the [unspecified] statewide injury to the

public caused by infidelity to Alabama’s 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 API’s publication of studies

asserting the existence of such harms. See Petition, at



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23, 25.) All of those allegations fail to assert that

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

parte King, 50 So. 3d at 1061-62 (no standing where

plaintiffs not personally deprived of right to vote or

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

1258 (failure to allege particular injuries plaintiffs

would suffer). 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., id. at 1257 (failure to allege in what

respect plaintiffs were injured by the holding of the

allegedly unconstitutional local option election); Kid’s

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

DHR’s failure to perform local market survey harmed

plaintiff).

Even if petitioners had alleged a 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



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be presumed; it must be shown.’” Town of Cedar Bluff, 904

So.2d at 1256. Petitioners have failed to so do.

The claims by Petitioners to have been a “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. At that point, both

groups lacked any official authority to enforce either

measure. Accordingly, both groups lacked any “’personal

stake’ in defending [either law’s] 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 a cognizable interest in the continued

enforceability of its laws that is harmed by a judicial



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decision declaring a state law unconstitutional.” Id. at

2664. 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 ACTIONON 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 peculiar to

himself.” State ex rel. Foshee v. Butler, 225 Ala. 194,

195, 142 So. 533, 534 (1932); see also 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 Court dismissed both cases



17

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 asformal 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 recently-

enacted law); State ex rel. Holcombe v. Stone, 166 So. 602

(Ala. 1936)(sheriff seeking payment as required by law for



18

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). It is extremely telling that Petitioners

chose to omit this language in their quotation from

Kendrick. (Petition, pg. 21.) Private citizens 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.



19

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

State’s sovereign interests. Regardless of the issue at

stake, to allow private 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.



20

III. PETITIONERS HAVE NOT MET THE REQUIREMENTS FOR THEISSUANCE OF A WRIT OF MANDAMUS.

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).



21

A. Petitioner does not have a clear legal rightto the order sought.

1. The resolution of the underlying legalcontroversy in this case is unclear, and

this action is the inappropriate vehicleto seek to resolve it.

This Court 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”).



22

i. The right in question is neither clear norcertain, but is instead the source ofconsiderable 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 officer’s judgment and discretion is

4 For example, a probate judge must use his or her

professional judgment in evaluating the sufficiency of

proof of an applicant’s age. See, e.g., Mitchell v.

McGuire, 244 Ala. 73, 76, 12 So. 2d 180, 182 (1943).



23

“abused and exercised in an arbitrary and capricious

manner.” Hess v. Butler, 379 So. 2d 1259, 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 same-

sex 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



25

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

extremely speculative nature of this relief. See, e.g., Ex

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 Alabama’s

laws.



26

prior to the release of the inevitable United States

Supreme Court decision on the matter.6 The 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 nature of the relief requested in this action

easily differentiates itself from Ex parte Jim Walters

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

20.) The relief requested in that case was remedial in

nature and was sought under the Court’s appellate

jurisdiction.7 91 So. 3d at 52. 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.

6 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 Court’s appellate jurisdiction, whereas Petitioners in

this case are seeking to bring this Petition under the

Court’s general superintendence jurisdiction.



27

iii. The relief requested necessarilyimplicates collateral matters pertainingto 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 § 30-

1-19. 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 In a

proper case, this Court would of course have the

jurisdiction to make such a determination independently of

the rulings of a federal district court, conceivably even

via a petition for writ of mandamus issued under this

Court’s appellate jurisdiction. See Ex parte U.S. Bank

Nat. Ass’n, 148 So. 3d 1060, 1066-1069 (Ala. 2014)

(discussing availability of mandamus in cases involving

8 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.



28

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 is not a proper case to make such a

determination, however, because neither Petitioners nor

Respondents are the proper parties to bring this 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.

9 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.



29

B. Petitioner cannot establish an imperative dutyto act on the part of Judge Martin.

Given the circumstances surrounding the issue of same-

sex 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 the lack of

another adequate remedy.

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.



30

The State of Alabama, however, certainly has other remedies

available to it. As discussed supra, it is the sole

authority and responsibility of the Attorney General to

take necessary legal action to protect the sovereignty of

the State. The Attorney General has of course been

enjoined from direct enforcement, but he is still ably

defending the laws at issue.

D. Petitioner has not properly invoked the

jurisdiction of this Court.

“[T]he question of jurisdiction is always fundamental.”

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

addition to its appellate jurisdiction, this Court has

original jurisdiction, inter alia, “to issue such remedial

writs or orders as may be necessary to give it general

supervision and control of courts of inferior

jurisdiction.” Ala. Const. of 1901, Art. IV, § 140, Amend.

328. Alabama Code § 12-2-7 further clarifies this Court’s

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



31

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, 352-

53, 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

jurisdiction over each probate judge. See, e.g., Ala. §

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

Ry. Co., 679 So.2d 214, 216 (Ala. 1996). Because the

circuit courts would have jurisdiction over an original

action, this Court, respectfully, lacks the necessary

jurisdiction and must dismiss this Petition.

Petitioners, however, have completely ignored § 12-2-

7(2), instead incorrectly invoking the general grant of

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



32

basis for this Court’s jurisdiction. This law simply

cannot suffice to give this Court jurisdiction 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). Further, even

under these provisions, this Court generally refuses to

entertain an original petition if a lower court has the

authority to do so. See, e.g., Ex parte Morgan, 259 Ala.

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 have asked this Court to apply the

exception to this rule developed in Ex parte 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. 242



33

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 this

exception in this case, it would be unwarranted. 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 “to afford full relief and do complete

justice.” Id. at 614, 306. The Parties in this case do

not agree that this Court has original jurisdiction; thus

10 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.



35

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. Probate judges renew driver’s licenses

pursuant to rules and regulations of the Department of

Public Safety. 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 or renewal driver’s licenses.” Rutledge v.

Baldwin Co. Comm’n, 495 So. 2d 49, 53 (Ala. 1986).

Further, pursuant to a probate judge’s responsibilities in

issuing hunting and fishing licenses and boat licenses

probate judges act pursuant to rules and regulations of the

12 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).



36

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. Probate judges further record deeds and

mortgages, corporate filings and collect fees regarding

such compliance. Probate judges serve as the chief

election officer for the county. 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 ProbateJudges’ 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



37

the Constitution and the Code of Alabama.” 711 So.2d at

963. 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 Court’s 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

13 “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.



39

Because the Governor has already stated that he will not

take any action against a probate judge that issues a

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. WebbKendrick E. Webb (WEB022)

s/Jamie H. KiddJamie Helen Kidd (HIL060)

s/Fred L. ClementsFred 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: [email protected]





40

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

[email protected] [email protected]

[email protected]

[email protected]

Eric Johnston

Suite 107

1200 Corporate Drive

Birmingham, AL 35242

[email protected]

Samuel J. McLure

The Adoption Law Firm

P. O. Box 2396


[email protected]



41

ATTORNEYS FOR RESPONDENT HON. STEVEN L. REED:

Tyrone C. Means

H. Lewis Gillis

Kristen J. Gillis

Means Gillis Law, LLC60 Commerce Street, Suite 200


[email protected]

[email protected]

[email protected]

Mark Englehart

Englehart Law Offices

9457 Alsbury PlaceMontgomery, AL 36117

[email protected]

Robert D. Segall

Copeland Franco Screws & Gill, PA

P. O. Box 347

Montgomery, AL 36101-0347

[email protected]

Thomas T. Gallion, III

Constance C. Walker

Haskell Slaughter & Gallion, LLC

8 Commerce Street, Suite 1200


[email protected]

[email protected]

Sam Heldman

The Gardner Firm, P.C.

2805 31st St. NW

Washington, DC 20008

[email protected]



42

ATTORNEYS FOR RESPONDENT HON. ALAN L. KING:

Jeffrey M. Sewell

French A. McMillan

Sewell Sewell McMillan, LLC

1841 Second Avenue N., Suite 214Jasper, AL 35501

[email protected]

[email protected]

G. Douglas Jones

Gregory H. Hawley

Christopher J. Nicholson

Jones & Hawley, P.C.

2001 Park Place, Suite 830Birmingham, AL 35203

[email protected]

[email protected]

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

[email protected]

[email protected]

Luther Strange

Attorney General, State of Alabama

501 Washington Avenue

Montgomery, AL 36130-0152

[email protected]

/s/Kendrick E. Webb

Of Counsel

1140460 chilton county response

Documents