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Sunday, February 15, 2015

If possible, Alabama could get more confusing

Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.

So how will this play out and what effect will it have?

This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.

In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.

The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.

The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.

Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined;  the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.

On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.

Posted by Howard Wasserman on February 15, 2015 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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