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Thursday, May 21, 2015

Class certifcation in Alabama SSM litigation

Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of

all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.

And she certified a defendant class of

all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.

In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."

Thoughts on the order and where this leaves us after the jump.

Assuming (as everyone expects) Obergefell establishes Fourteenth Amendment protection for same-sex marriage, Judge Granade will immediately lift the stay, establishing a binding injunction prohibiting enforcement of the Alabama SSM ban effective throughout the state and guaranteeing every same-sex couple a marriage license. That injunction is necessary to put Obergefell into effect in the state, since that decision will have nothing to say directly to Alabama law or to any Alabama officials. And because it protects all possible couples and binds alll possible probate judges, it spares couples the  trouble of having to initiate individual litigation against individual judges to obtain injunctions in light of Obergefell.

Judge Granade also swept aside various arguments that the federal court should defer to the state mandamus prohibiting probate judges from issuing marriage licenses to same-sex couples. Rooker-Feldman, the Anti Injunction Act, and every other abstention doctrine were inapplicable, since the plaintiffs were not parties to the state mandamus proceeding and, in any event, the federal injunction preceded the state mandamus.

Granade further insisted that, pursuant to the Supremacy Clause, the federal injunction enforcing the Fourteenth Amendment trumps state law and the state mandamus action, citing SCOTUS' discussion of the Supremacy Clause and Ex Parte Young from Armstrong. As she put it, the defendants "cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution."*

* I actually believe Judge Granade's analysis is wrong on this point. The conflict here is not between a state law and a federal injunction applying the Fourteenth Amendment against that state law. The conflict is between two judicial decisions and orders--one state, one federal--interpreting the Fourteenth Amendment. The Supremacy Clause does not raise the federal order above the state order. Judge Granade's view that the Fourteenth Amendment requires defendants to issuance of licenses does not trump the Alabama Supreme Court's view that the Fourteenth Amendment does not require, and in fact prohibits, issuance of those licenses. This analysis again reflects the erroneous view that one district court's declaration establishes the meaning of "the Constitution."

The correct answer is that there is, indeed, a potential conflict between the two orders. But the state mandamus expressly allows probate judges to show that they are under a conflicting federal obligation, offering a basis to be relieved from the state mandamus. In other words, the state court order itself eliminates any federal-state conflict, obviating the need for the federal court to avoid the conflict by staying its hand.

Of course, it would not be Alabama if someone did not misstate what is going on. Today, it was the Southern Poverty Law Center, which stated that this decision "ends the chaos and confusion that Attorney General Strange and Chief Justice Moore have intentionally caused through their reckless rejection of federal constitutional principles." As I have written and continue to write, I am not quite sure what "federal constitutional principles" Strange or Moore have rejected. That is, unless "any decision with which we agree, even a non-binding precedent from a single district judge, must be binding on everyone everywhere" is a federal constitutional principle.

Posted by Howard Wasserman on May 21, 2015 at 10:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


What if the class were defined to include people who wish *in the future* to apply? Then there's no gamesmanship; if the class lost on the merits, that loss would bind anyone who at any point desires a same-sex marriage.

That said, this whole line of argument is predicated on the premise that certification should be merits-blind and assume a loss on the merits is a possibility. That's ordinarily right, but does it make sense where, as here, the court has already decided individual claims in favor of plaintiffs on grounds that don't permit of distinction as to the class?

Posted by: Asher | May 23, 2015 1:25:36 PM

Sure, there are plenty of same-sex couples who have dated for a long time without getting engaged or otherwise demonstrating an intent to marry. But they're not engaging in gamesmanship. They're just not precluded.

The thing unlikely to happen in the real world isn't a long-term couple with no intent to marry; rather, it's a couple that has an intent to marry but conceals it in order to avoid preclusion. People just don't act that way outside of creative hypotheticals.

Posted by: Anonymous | May 23, 2015 12:10:02 AM

Adam -- I agree the key issue is whether the class definition is "clear and objective," which is all that I meant by ascertainable (sorry if I created confusion by inadvertently referencing a distinct body of law). The practical problem with changing "wish" to "apply" is a temporal one: *when* does the application have to have been made? If the application can be made post-judgment, then the problem still exists. And if the application must be made pre-judgment (let alone pre-complaint), then that will drastically narrow the scope of the class and defeat the point of the whole exercise from the perspective of class counsel and the judge.

Anonymous: I think your real-world assessment is just wrong. You're certainly correct that there are plenty of gay couples whose current intent to marry will have been objectively expressed. But there are also plenty of gay couples whose intent won't have been objectively expressed (e.g., couples who only recently started dating, couples who dated for a long time but never suggested they wanted to get married (just like plenty of straight couples, btw)). And, incidentally, I think it'd raise pretty serious due-process problems for a judge to declare a litigant precluded as a class-member based on the unsubstantiated speculation that a couple who'd been dating for a long time but hadn't yet tried to get married would have tried but-for the SSM ban -- again, I know plenty of straight people who dated for more than a decade before getting engaged.

Posted by: Hash | May 22, 2015 7:36:36 PM

The class strikes me as well-defined, and the concerns about gamesmanship seem like the stuff of law-school hypotheticals rather than real-world problems. Five years from now, if a couple that's been together for 20 years tries to argue that they're not precluded because they didn't want to get married 15 years into their relationship but changed their minds at the 20-year mark, a judge could easily reject that argument and find them precluded. Of course, there could be more difficult fact patterns than that one, but couples (especially same-sex couples at this particular moment in time) tend not to be quiet about whether they want to get married (or not), so evidence one way or the other shouldn't be hard to find.

Posted by: Anonymous | May 22, 2015 6:46:55 PM

Off-the-cuff, I agree that the concern should be whether or not the class has a "clear and objective" definition, and not the "ascertainability of class membership," but I think you raise an interesting question. The primary reasons why courts -- like Carrera v. Bayer -- have adopted the ascertainability requirement stem from concerns traditionally associated with Rule 23(b)(3) damage actions, like notice, opt-out, efficient claim administration. Putting aside the fact that these concerns are debatable in damage actions (see http://guptabeck.com/wp-content/uploads/2012/05/Amicus-Civil-Procedure-Professors.pdf), they don't really apply in actions for injunctive relief.

However, as you suggest, I suppose courts in Rule 23(b)(2) and (b)(3) actions might still be concerned about ascertainability to the extent they worry about finality. The Bayer court itself made this point, requiring class members be "ascertainable" to determine "who is in the class and bound by [a] ruling." But, particularly in actions for injunctive relief, I think concerns about finality really involve questions about whether or not the class is defined clearly and objectively. E.g., Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011) (in damage actions "[t]he class definition must be clear in its applicability so that it will be clear later on whose rights are merged into the judgment, that is, who gets the benefit of any relief and who gets the burden of any loss. If the definition is not clear in its applicability, then satellite litigation will be invited over who was in the class in the first place.”); 1 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS, §3:1 (5th ed. 2013).

Suppose you changed the first sentence of the class definition be to replace the word "wish" to "apply"? That would seem to deal with your concern that the class definition is too subjective, but still capture what Judge Granade is getting at when certifying the class. Are there other practical problems with that?

Posted by: Adam Zimmerman | May 22, 2015 6:29:40 PM

Arthur -- what both you and the Judge are missing is that this vague class definition *improperly creates* an opportunity to opt-out of of this (b)(2) class. Namely, any putative class member can simply assert that they weren't actually a member of the class because they didn't subjectively intend to get married when the adverse judgment was entered. The judge missed this, of course, because she knows that she's going to issue a favorable judgment and so this issue won't arise. But certification decisions are supposed to be made w/o pre-judging the merits. And in a case where the pltfs could lose on the merits, such a vague class definition creates this improper opt-out gamesmanship.

Posted by: Hash | May 22, 2015 5:54:18 PM

Since there is no opportunity to opt out of an injunction only class, there is no opportunity for "gamesmanship."

Judge Granade addresses the ascertainability issue:

Defendants contend that the Plaintiff Class is too vague because it is based
on subjective standards - whether a couple desires a marriage license. However, as Plaintiffs point out, probate judges would have no difficulty identifying those affected by the requested injunction since any same-sex couples who attempt to apply for a marriage license plainly qualify as members of the proposed class. In a similar case, the Western District of Virginia was presented with a similar objection to a proposed class and found that the potential plaintiffs’ application for a marriage license was observable and objective. Harris, 299 F.R.D. at 496 -497 (“Here, observable and objective actions determine whether couples fall within the class definition by virtue of their application for a marriage license or request for recognition of an out-of-state marriage.”). As in Harris, the proposed class definition here “will not require any individualized fact-finding, nor is it based on unknowable or unascertainable information. As such, it meets the requirement fascertainability.” Id. at 497.

The fact that the class members “are not specifically identifiable supports
rather than bars the bringing of a class action, because joinder is impracticable.” Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 (4th Cir. 1975); see also Meyer v. Citizens and Southern Nat. Bank, 106 F.R.D. 356, 360 (M.D. Ga. 1985) (“Difficulty in identifying class members makes joinder more impractical and certification more desirable.” citing Charleston Area Med. Ctr., Inc. supra and Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974)). Nor is it a problem that seeking to obtain a marriage license involves an element of choice. As Plaintiff correctly points out, courts have routinely certified classes defined by characteristics of choice. See e.g. Pederson v. Louisiana State University, 213 F.3d 858, 865 (5th Cir. 2000) (class consists of female students who seek to participate in varsity intercollegiate athletics); Carpenter v. Davis, 424 F.2d 257, 260 (5th Cir. 1970) (class includes all who wish or expect to write for, publish, sell or distribute the newspaper in the future); Charleston Area Med. Ctr., Inc., 529 F.2d at 645 (class consists of persons seeking abortions).

Posted by: arthur | May 22, 2015 4:55:19 PM

I think so, because normally (b)(2) civil-rights class actions are defined by objectively identifiable metrics that can be applied by the court and the defendant: e.g., the class consists of members of a protected group who work in X at time Y, live in X at time Y, etc. Here, by contrast, the key aspect of the class definition is a subjective intent that's only known and knowable to the class members themselves -- namely, whether they intend to get married (and that's wholly apart from the fact that sexual-orientation itself isn't objectively identifiable (and arguably not immutable either)). THus, these putative class members can engage in gamesmanship about their class status that normal (b)(2) class members cannot.

Posted by: Hash | May 22, 2015 4:21:46 PM

I have to give this some thought. Is this really any different than defining the class for any other 12(b)(2) civil rights class action?

Posted by: Howard Wasserman | May 22, 2015 3:07:35 PM

The fact that there's no notice and no money to distribute in an injunction-only class isn't relevant to my point that the lack of an ascertainable class means that putative class members can engage in gamesmanship, by claiming that they're part of the class if the class wins, but claiming that they're not part of the class if the class loses. There's no way that's proper under Rule 23, regardless of the type of relief sought.

Posted by: Hash | May 22, 2015 2:04:51 PM

Ascertainability is not a requirement in a class action seeking only injunctive relief, since there is no notice and no money to distribute.

Posted by: arthur | May 22, 2015 1:35:52 PM

Howard -- any thoughts on whether the pltf class is a proper one w/r/t ascertainability of class membership? In particular, how can the court or the parties determine who is a class member and who isn't? There's no way of identifying which gay Alabamans currently want to get married. If the class prevails on the merits, then every gay Alabaman who wants to get married will claim membership. But if the class loses on the merits, then every gay Alabaman will claim that they weren't a class member because they didn't have any interest at the time in getting married. In short, it allows a one-way opt-out post-judgment. Of course, the preclusive effect of the judgment doesn't much matter practically in this particular case given the imminent Supreme Court decision. But as a matter of civil procedure, authorizing such an ill-defined class strikes me as quite improper where, as is normally the case, the preclusive effect of the judgment matters a great deal. Thoughts?

Posted by: Hash | May 22, 2015 12:37:37 AM

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