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Monday, February 09, 2015

Same-sex marriage comes to Alabama

Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.

[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]

[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]

SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.

Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.

Posted by Howard Wasserman on February 9, 2015 at 12:03 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


Will: Thank you for this update on the underlying process. As you relay it, I see several other procedural problems.

First, it seems to me judicial immunity should not apply because issuing the adoption certificate should not be a judicial function to which judicial immunity attaches. Certainly issuing a marriage license is not judicial; maybe adoption requires more.

Second, if the adoption decision is judicial, then the plaintiffs should have had a different problem: Rooker-Feldman, which prohibits a state-court loser from suing the state judge and arguing that the judge's decision violates the Constitution. What Searcey should have done was appeal to the Alabama Supreme Court and then to SCOTUS.

Everyone screwed up.

Posted by: Howard Wasserman | Feb 10, 2015 7:37:42 PM

Professor Wasserman:

Some background and thoughts on the odd procedural and potential practical disposition of the Searcy case.

The pleadings reflect that after the Mobile County Probate Court rejected her underlying adoption petition, Searcy filed an appeal in Alabama’s intermediate appellate court. See, In re Adoption of KRS, 109 So.3d 176 (Ala. Civ. App. 2012). Because Alabama law expressly prohibits the recognition of a same-gendered individual as a spouse, the state appellate court affirmed the probate court ruling. In 2014, Searcy filed her federal district court action challenging the constitutionality of Alabama’s same-sex marriage ban. The complaint sought injunctive and declaratory relief to cure the asserted violations. Searcy named the Governor, the Attorney General, the Mobile County Probate Judge (Don Davis), and other public officials as defendants.

Judge Davis sought to dismiss the federal court complaint, arguing that: 1) judicial immunity barred the action against him; and 2) Searcy’s state appellate filings permanently removed the adoption case from the probate court’s jurisdiction, thus rendering declaratory and injunctive moot as to him. On their face, both arguments were specious. First, while judicial immunity proscribes damages (in all circumstances) and injunctive relief (at least, in the first instance), the doctrine doesn’t foreclose first obtaining declaratory relief from a federal judge. See, 42 U.S.C. § 1983. Thereafter, if the state judicial officer continues enforcing the constitutional deprivation in spite of the declaratory order, then the complainant may obtain prospective injunctive relief. Id (permitting injunctive relief against a judicial officer after “a declaratory decree was violated”). Second, although the state appeal initially removed the matter from the probate court’s jurisdiction (at least during the pendency of that appeal), it didn’t mean the probate court’s jurisdiction was divested in perpetuity. Rather, after the appellate court affirmed, then the adoption case should have been transmitted back to the probate court for proceedings (if any) consistent with the appellate court’s ruling. See, Ala. Code § 12-22-75 (stating that after appellate dismissal or affirmance, certificate of the judgment shall be filed in the trial court and “execution may issue and other proceedings may be had thereon in all respects as if no appeal had been prosecuted.”); see also, Ala. R. App. Proc. 41 (appellate court certificate of judgment shall be issued within 18 days after judgment unless otherwise stayed by appellate court, rehearing application, or certiorari filing). More simply put, after the appeals exhaust, jurisdiction eventually transfers back to the original trial court.

Apparently, the Searcy plaintiffs took Davis’ arguments at face value, chose not to file any opposing motion, and even stipulated to Davis’ dismissal from the federal action with prejudice. Subsequently, when Davis refused to open shop in Mobile yesterday, the Searcy plaintiff’s sought contempt sanctions even though they previously acquiesced to Davis’ non-party status.

Honestly, I’m not sure what immediate avenue the Searcy plaintiffs can pursue at this particular juncture. As long Davis keeps the Probate Court’s marriage division closed, no equal protection issue arises since all Mobile residents are equally affected (although academically the closure may run afoul of Section 13 of the state constitution providing that “all courts shall be open” and that “right and justice shall be administered without sale, denial, or delay”). Nor would the federal district court be empowered to force Davis to open the marriage license office in any event, issues of comity notwithstanding. Finally, I don’t understand why the Searcy litigants are going to the Probate Court’s marriage office in the first place, since they are already married (in California) and the original petition arose as an adoption proceeding

Rather, it seems that the Searcy plaintiff needs to attempt to set aside the final judgment in the Probate Court (via the state equivalent of a Rule 60 motion) or simply file a new adoption petition. When (or if) Probate Judge Davis denies the petition again, then the Searcy plaintiff can seek prospective injunctive relief under Section 1983 to enforce the declaratory judgment in federal court. Likely, the federal matter would be reassigned to District Court Judge Granade, who would (after considering several motions) then grant the injunction ordering the probate court to authorize the adoption.

Still, pretty convoluted the way this matter unfolded.

Posted by: Will Martinez | Feb 10, 2015 6:29:01 PM

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