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Wednesday, February 11, 2015

The wrong vehicle?

Judge Granade has scheduled a hearing for Thursday to decide whether to add Alabama Probate Judge Don Davis back into the case as a defendant and whether to enjoin him from enforcing the state ban on same-sex marriage. That injunction is all-but-certain to issue. Believe it or not, however, it may not end the controversy. We still have a scope-of-the-injunction problem. Since Searcey and her wife remain the only plaintiffs, the injunction would only compel Davis to allow Searcey to adopt her wife's child. That's it. Even as to Davis, the effect of the opinion as to anyone else's rights would be merely persuasive.

The problem is that Searcey may be the wrong litigation vehicle for getting probate judges to issue licenses, since it is not a marriage-license case but an adoption case. And it seems to me that it is impossible to turn it into a license case by adding new plaintiffs (through joinder or intervention) who are looking for licenses rather than to adopt, since they are seeking entirely different relief. Perhaps the fact that the same-sex marriage ban (and whether the plaintiffs are or can be married) is a common question of law or fact. But the questions are arising in such wildly different contexts and settings.

Update: Thanks to the commenter below for correcting me. The events are happening in Strawser, an action brought by a male couple in January, originally against Attorney General Luther Strange and which produced a (largely meaningless) injunction against him; Davis has been added as a defendant and a hearing on a preliminary injunction against Davis is scheduled for Thursday. In addition, according to this story, there is a second action in the Southern District by several couples, naming Davis and Moore as defendants.

Now we are beginning to see some progress. Once Davis is directly enjoined to issue licenses, expect everyone else to fall in line.

Posted by Howard Wasserman on February 11, 2015 at 02:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


"The issuance of a marriage license by a judge of probate is a ministerial and not a judicial act." Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (1896).

Posted by: Sykes Five | Feb 12, 2015 11:00:03 AM

Alabama probate judges are a kind of hybrid of judge and clerk.

As a judge, the probate judge has jurisdiction over certain subjects such as will contests, adoptions, guardianships, and commitments. The probate judge runs a court of limited jurisdiction for that purpose. Those matters can be appealed to the circuit court, which is the county-level court of general jurisdiction. Historically, probate judges had jurisdiction over juvenile offenses.

As a clerk--which I understand takes up far more of the probate judge's time--the probate judge maintains the county's real property records. The probate judge also issues certain licenses: in all counties marriage licenses (well, until a lot of them stopped), and in counties where there is no separate licensing bureau, every other kind of license from hunting to driving to professional licenses.

I think it is clear that a probate judge issuing a marriage license is acting as a clerk and performing an executive or administrative act, most likely a nondiscretionary one. The probate judge is certainly not acting as a judge even though the probate judge may later in that day be sitting on a bench holding a a gavel.

Posted by: Sykes Five | Feb 12, 2015 10:48:47 AM

Ah, nevermind. My guess is, based on Howard's other posts, that this isn't a in the judge's "judicial capacity." I'd be interested to know if there's anything on that.

Posted by: Bryan G. | Feb 11, 2015 10:31:14 PM

Ah, nevermind. My guess is, based on Howard's other posts, that this isn't a in the judge's "judicial capacity." I'd be interested to know if there's anything on that.

Posted by: Bryan G. | Feb 11, 2015 10:31:11 PM

Maybe someone can help me on a super minor nit. What statute are plaintiffs using to seek an injunction? I'd assume Section 1983. If so, isn't the appropriate relief going to be declaratory relief? ("...in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.") And if declaratory relief is the right remedy, does that change your analysis on this whole situation, Howard? (I assume not, but I thought I'd raise it.)

Posted by: Bryan G. | Feb 11, 2015 9:55:27 PM

If he actually has the supervisory power over the probate judges that he seems to think he has under Alabana law, then yeah, I guess that would work.

Posted by: Asher | Feb 11, 2015 6:23:31 PM

Honestly, everyone, especially if Judge Granade enjoins Moore as the functional equivalent of the A/G.

Posted by: Howard Wasserman | Feb 11, 2015 5:19:30 PM

"expect everyone else to fall in line."

Everyone, or just everyone in the Southern District?

Posted by: Asher | Feb 11, 2015 5:05:10 PM

Thank you for the correction; the stories I had read were inaccurate (I should not be surprised). So it is true that Searcey is the wrong vehicle, but it sounds like the lawyers are figuring it out.

Posted by: Howard Wasserman | Feb 11, 2015 2:51:21 PM

I think you're confusing different cases. The Strawser plaintiffs, who seek a marriage license, sought to amend their complaint to join several other same-sex couples who also seek marriage licenses and to include the Mobile County probate judge as a defendant, and sought a new preliminary injunction binding the probate judge as well as well as the AG. (Strawser and his partner were originally not represented by counsel but now are represented by NCLR.) The judge permitted them to amend their complaint and scheduled a hearing on the preliminary injunction for Thursday. Separately, a new lawsuit was filed against the same probate judge by the same lawyers who did the Searcy case, with (I believe) new plaintiffs. The judge denied their motion for a temporary restraining order for failure to meet certain procedural requirements, but permitted them to participate in the Thursday hearing. I don't think the original recognition issue is at stake here.

Posted by: JHW | Feb 11, 2015 2:46:32 PM

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