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Tuesday, February 17, 2015

And more crazy in Alabama

With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an  Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.

The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.

First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.

Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.

Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.

Posted by Howard Wasserman on February 17, 2015 at 05:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


njim, if some federal judge held a state law was unconstitutional based on Supreme Court precedent that does not clearly determine the point, but in a "bad" sort of way, would you find it troubling if every state official (including those not directly involved in the case, so says even the federal judge) did not immediately follow the ruling? Especially if the Supreme Court was in the process of deciding the matter & would in a few months?

"which has not remotely spoken here"

except for denying a stay

Posted by: Joe | Feb 19, 2015 9:13:20 AM

"annoying and ridiculous"

Plus, in certain cases, maybe more than that. To belabor my point.

Posted by: Joe | Feb 19, 2015 9:08:54 AM

First, judges are not immune from criminal prosecution, so if Moore had done anything criminal, he could be prosecuted. Fortunately, we do not impose criminal liability *on anyone* just for doing political stunts. Second, as I have been saying ad nauseum for two weeks, no one is "outright defy[ing]" anything, least of all the Supreme Court, which has not remotely spoken here.

While Moore et al's maneuvering has been annoying and ridiculous (except from a "this would make a great article and a great Fed Courts exam" perspective), the rhetoric on the other side comparing Moore to George Wallace and calling for him to be arrested and jailed is just as problematic.

Posted by: Howard Wasserman | Feb 19, 2015 7:05:20 AM

What's going on in Alabama shows why judges, prosecutors, and others in the legal system should NOT be above the law, or immune from it.

If Roy Moore and everyone else involved could be prosecuted for their deliberate obstruction of the law, for the harm this intentional and unnecessary delay is causing those who wish to (legally) marry in the state, and if they could be simply arrested, jailed, and removed from their positions of authority for their actions, we wouldn't have these problems.

But no, the "law" says judges cannot be treated like the public, they can apparently outright defy the Supreme Court, the Federal Courts, a Federal judge, and the public, and get away with it.

Sure, Moore might get a reprimand, and might even get "removed" from office again, but a lot of good that does if the person can just put themselves right back in the office at a later date. Everyone else will get away with no consequences at all.

It's disgusting.

Posted by: njim | Feb 19, 2015 2:53:51 AM

Thanks for sharing the Nagareda article. Although he was not talking about § 1983 litigation, his argument seems to carry forward.

Posted by: Howard Wasserman | Feb 18, 2015 4:12:13 PM

Yes. It's very interesting to watch this unfold this way, given our general assumptions about injunctions in public litigation. Richard Nagareda referred to injunctions as a form of "embedded aggregation" for related reasons. Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 Cornell L. Rev. 1105 (2010).

Posted by: Adam Zimmerman | Feb 18, 2015 3:05:13 PM

They could go and file a class action now in the SD Ala and it almost certainly would be assigned to Judge Granade under the local related-case rule. Rule 23 has generally been less necessary in constitutional injunction litigation because there generally is less reluctance to follow precedent even in the absence of an injunction. That is, typically public official # 2 will follow the decision of the federal court, even if only official # 1 is enjoined and typically public official # 1 will abide as to the plaintiff and everyone else. That isn't happening here, so Rule 23 would have been the preferred vehicle.

Posted by: Howard Wasserman | Feb 18, 2015 11:48:57 AM

I'm almost embarrassed to ask this question--I haven't been closely following the the litigation. But is there a procedural obstacle or other hurdle to commencing a separate class action here before Judge Granade? i thought avoiding situations like this was one of the primary motivations for the 1966 amendments to the class action rules.

Posted by: Adam Zimmerman | Feb 18, 2015 10:16:49 AM

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