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Sunday, February 08, 2015

More from Alabama

This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.

First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.

Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case

Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.

But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.

It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.

* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.

Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.

Posted by Howard Wasserman on February 8, 2015 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I would have thought that the fact that the issue is being briefed before the Supreme Court would create an inherent ambiguity.

Posted by: john tanner | Feb 9, 2015 10:36:01 AM

One more point on why any probate judge likely would receive qualified immunity:

Q/I applies very differently when the dispute is over enforcement of a law. A claim of immunity is enhanced when the official is adhering to formal laws, rules, or policies that permit or compel his conduct (here, denying the marriage license), unless that policy has been rendered unconstitutional by a body of case law. (Wilson v. Layne, 526 U.S. at 617). In essence, executive officials are entitled to rely on the presumptive validity of formal laws unless/until those laws have been invalidated. There was an example last year in the Eighth Circuit, in which a police officer attempted to enforce a ban on flag burning and the court insisted that Texas v. Johnson was so firmly a part of the law that qualified immunity was lost.

Obviously, one district court decision is not close to equivalent to Texas v. Johnson in clearly establishing law.

Posted by: Howard Wasserman | Feb 8, 2015 11:53:36 PM


The premise of your question is fundamentally wrong, namely in the suggestion that the court has declared the law "universally unenforceable."

A court resolves a concrete dispute between particular parties and issues an injunction effective as to those parties--e.g., "This probate judge shall grant this plaintiff a marriage license." The declaration that the statute is facially invalid is the explanation and justification for that order. The parties to the action are bound by that decision by virtue of the injunction itself and the doctrines of issue and claim preclusion. But the decision's effect on anyone other than the parties to the action inheres entirely in the doctrine of precedent. And since district courts do not constitute binding precedent on anyone, no state official is bound to obey that district court decision, at least insofar as he does not find that decision persuasive.

Note, by the way, this will remains true even if the 11th Circuit or SCOTUS affirms Judge Granade's decision. The appropriate official (we'll stipulate for these purposes that the AG is the right defendant) is directly compelled to grant a marriage license to the named plaintiff. He is only indirectly compelled by precedent to grant a marriage license to anyone else, although a district court within the Eleventh Circuit is bound by precedent to order him to grant that licenses to anyone else who sues to obtain the license.

Posted by: Howard Wasserman | Feb 8, 2015 11:39:52 PM


"Second, qualified immunity has been denied on numerous occasions in which the only source of clearly established constitutional law was a district court opinion, but here we have much more than that."

Conspicuous absence of citation there. Especially because 11th Circuit precedent seems to say otherwise. See Keating v. City of Miami, 598 F.3d 753, 766 (11th Cir. 2010) ("The Protesters must point to law as interpreted by the Supreme Court, the Eleventh Circuit, or the [state] Supreme Court . . . to show that the constitutional violation was clearly established." (quotation omitted)).

Posted by: KLK | Feb 8, 2015 11:09:04 PM

and more:


Working on the Sabbath. Must be serious.

Posted by: Joe | Feb 8, 2015 11:07:31 PM

Howard, we will just have to agree to disagree about whether the district court opinion (as the single and uncontroverted judicial pronouncement on the constitutional issue) “counts” as law, such that the law is clearly established. But I am curious about the following: how do those who hold your perspective on the relative legal insignificance of a pronouncement of facial unconstitutionality by a district court resolve the dissonance that position creates between the legal and equitable powers of the court? Here’s what I mean: I assume that we all agree that had the appropriate state officer who is charged with enforcing this law been party to the suit, the district court would have had the power to enjoin – even permanently enjoin – the enforcement of the laws in question. Such an injunction, were it to remain undisturbed by another court, would have the effect of rendering the laws permanently unenforceable – for everybody, not with respect to the plaintiffs and defendants at bar. Going forward those laws could no longer be enforced against anyone. Yet, the court’s equitable power to enjoin cannot be more expansive than the court’s power to declare what the law is. The court’s injunctive power follows from and is wholly the creature of the court’s power to declare what the law is. The court cannot enjoin, for example, where it lacks jurisdiction to decide the legal issue upon which the injunctive turns. The court can only enjoin where it first has the power to declare what the law is. So in the situation in which the court is able to permanently and completely enjoin the enforcement of a law, the court can only do so if it has the legal capacity to declare the law universally unenforceable (because it is facially unconstitutional) – not just unenforceable with respect to its application to the parties at bar, because the injunction will affect the rights of all with respect to the law in question. Consequently, every injunction against the enforcement of a putatively unconstitutional law is implicitly – but quite necessarily-- premised on a legal declaration that the law is universally unenforceable. So it was with Granade’s ruling, and the absence of an attendant injunction does nothing to disturb the power of the underlying legal declaration. It would be a very peculiar state of affairs if a district court could render a law universally unenforceable with its equitable power, but could not, as a matter of law, declare it universally unenforceable (or, as seems to be the assumption here, such a declaration would simply not “count” as law except with respect to the parties at bar).

Posted by: Anon | Feb 8, 2015 10:49:07 PM

My response to the earlier post was not about qualified immunity--it was responding to a commenter's suggestion that the district court decision here was "unchallenged." I was not suggesting that had anything to do with Q/I analysis.

How do they have fair notice of illegality? There is one district court decision holding that Alabama's ban violates the 14th Amendment. That's it. Just as the defendent cannot point to the Sixth Circuit to show a split, neither can the plaintiffs point to all the other circuits that have invalidated bans to show the consensus. Nor is this an obviousness case, because Equal Protection principles with respect to gay rights are not so set as to make the right to a marriage license that plain. If this is clearly established, then every constitutional question of first impression becomes clearly established as soon as one district court says so.

It's not for nothing that no one has attempted to get damages from any public official throughout the dozens and dozens of post-Windsor cases.

Posted by: Howard Wasserman | Feb 8, 2015 7:25:13 PM

Howard, it will perhaps not surprise you that I disagree that the law here is not “clearly established” such that qualified immunity will be available to judges who are sued under Sec. 1983 for failing to issue licenses. It would be a mistake to leave Alabama’s probate judges with that impression. The law is “clearly established” if the defendant had “fair notice” that his conduct violated the law. Here the probate judges have fair notice that failing to issue the licenses is a violation of law.

First, it is well settled that the law can be “clearly established” in the absence of a Supreme Court decision. To quote Judge Posner in Burgess v. Lowery, 201 F.3rd 942 (7th Cir. 2000), “to rule that until the Supreme Court has spoken, no right of litigants in the circuit can be deemed established before we have decided the issue would discourage anyone from being the first to bring a damages suit in this court; he would be certain to be unable to obtain any damages.”

Second, qualified immunity has been denied on numerous occasions in which the only source of clearly established constitutional law was a district court opinion, but here we have much more than that. We have a district court opinion that (a) directly addresses the hypothetical defendant in question (talk about “fair notice”); and (b) is not in conflict with ANY other judicial pronouncement. No court that has considered the constitutionality of Alabama’s statute and constitutional provision has found it to be constitutional. The decision is – as of this moment - uncontroverted. There is no ambiguity.

Third, qualified immunity has been denied on several occasions in the absence of any on-point pronouncement by a court. Most often this occurs when the obvious constitutional wrongness of the behavior itself “clearly established” the law in the absence of a single prior on-point judicial pronouncement (see, e.g., U.S. v. Lanier, Hope v. Pelzer). However, the 11th Circuit, in fact, has quite expressly announced that qualified immunity may be denied in the absence of any prior on-point judicial pronouncement even where the level of “obvious wrongness” fell short of U.S. v. Lanier (see, Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997); see also, Lassiter v. Ala. A & M Univ., Bd. of Trs., 28 F.3d 1146, 1150 n.4 (11th Cir. 1994)). Here, of course, the crucial point to recall is that we do in fact HAVE a prior on-point judicial pronouncement that has directly addressed this specific (hypothetical) defendant.

Fourth, while eight federal courts of appeals currently adopt the position that the question of whether law is “clearly established” may be informed by persuasive out-of-circuit opinions, the 11th Circuit is emphatically not among these. The 11th Circuit categorically refuses to consider out-of-circuit holdings. This means that a hypothetical probate judge defendant could not point to the Sixth Circuit’s outlier holding to argue ambiguity in the law. Defendants will be limited to 11th Circuit decisions (of which there is only Judge Granade’s) and the contrapositive to the “obvious constitutional wrongness” –which would assumedly be an “obvious constitutional rightness” category of arguments. Neither of these points in the (hypothetical) defendant’s favor.

Fifth, although you have suggested (in a comment following penultimate post) that the fact that the 11th Circuit is entertaining an appeal may somehow create an ambiguity such that a hypothetical defendant would be entitled to qualified immunity. This is incorrect. In fact, the behavior by the 11th Circuit has been uniformly consistent in affirming that whatever the resolution of the ultimate constitutional question (which is not very much in doubt) by the Supreme Court, the 11th Circuit intends that licenses shall issue in Alabama tomorrow. In the motion to extend the stay pending appeal, the 11th Circuit was asked very clearly (both in the Alabama case and the Florida case) whether it was consistent with the law that licenses should issue to same sex couples. The 11th Circuit unambiguously said that they should. This is what “clearly established” looks like, especially in the absence of any other conflicting judicial opinion.

Finally, it is essential to be clear that the ambiguity in the law that must exist to entitle defendant to qualified immunity is not an ambiguity that is created by defendant’s OWN interpretation of the law, where that interpretation is in conflict with a judicial pronouncement. Instead, the ambiguity must be the result of conflicting pronouncements of law issued by a courts or courts (with jurisdiction to hear the constitutional question), OR the absence of any judicial statement on the constitutionality of the behavior where the behavior itself is not obviously unconstitutional (as in, e.g., U.S. v. Lanier). Here we have neither conflicting court opinions (there is only Judge Granade’s opinion) nor do we have silence on the issue (there is, after all, Judge Granade’s opinion). There will be very little for a hypothetical defendant to rest her hat upon.

In light of the foregoing (although, of course, reasonable minds and all that), I would be very uncomfortable leaving Alabama’s probate judges with the impression that they will be protected from personal liability if they refuse to issue licenses to same sex couples tomorrow.

Posted by: Anon | Feb 8, 2015 7:09:14 PM

Depends on what you mean by "proper." It is the choice that Congress seems to want, which is why, as I said in the original post, attorney's fees function as an incentive. But there is nothing wrong with waiting for a court of competent jurisdiction to order you to do something.

Posted by: Howard Wasserman | Feb 8, 2015 5:06:33 PM

If the injunction is almost certain to issue, isn't the proper course of action to issue the licenses without one and spare same-sex couples and the court system the trouble, expense, and delay of another lawsuit?

Posted by: JHW | Feb 8, 2015 5:02:47 PM

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