United States District Court, S.D. Alabama, Southern Division
CARI D. SEARCY and KIMBERLY McKEAND, individually and as parent and next friend of K.S., a minor, Plaintiffs,
ROBERT BENTLEY, individually and in his official capacity as the Governor of the State of Alabama, et al., Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
Two motions to dismiss are pending in this case, which challenges the constitutionality of Alabama's Marriage Protection Act and the Sanctity of Marriage Amendment to the State Constitution ( see Doc. 1, ¶ 1) (collectively, the "Marriage Sanctity Laws" or "Sanctity Laws"), "as applied and interpreted in the context of Alabama's step-parent adoption statute" ( id., ¶ 30 (citing ALA. CODE § 26-10A-27)).
1. Defendant Nancy Buckner, Commissioner of the Alabama Department of Human Resources, sued in her individual and official capacity, has filed a motion to dismiss all claims against her pursuant to Rules 12(b)(1) and 12(b)(6) (Doc. 14; see also Doc. 15, brief in support); and
2. Defendants Robert Bentley, Governor of Alabama, and Luther Strange, Attorney General of Alabama, both sued in their individual and official capacities, have filed a motion to dismiss (Doc. 17), seeking that all claims against Governor Bentley be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) and that the individual-capacity claim against Attorney General Strange be dismissed pursuant to Rule 12(b)(6). Their motion provides further that "Attorney General Strange will defend the validity of Alabama's marriage laws in this case." ( Id. at 8.)
The motions have been referred to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2, for entry of a report and recommendation.
As a preliminary, but important, matter, in Plaintiffs' omnibus response to the motions to dismiss (Doc. 27), filed June 24, 2014, they agree to the voluntary dismissal of all claims against Commissioner Buckner. ( See Doc. 27 at 1.) Plaintiffs further state that all individual-capacity claims against Governor Bentley and Attorney General Strange are also due to be dismissed. ( See id. ) "[T]he only remaining claims [are] against [Governor] Bentley and [Attorney General] Strange in their official capacities." ( Id. ) Accordingly, the undersigned RECOMMENDS, initially, that Commissioner Buckner's still-pending motion to dismiss (Doc. 14) be GRANTED. And the undersigned will limit her consideration to the motion filed by Governor Bentley and Attorney General Strange (Doc. 17), which is further supported by their reply (Doc. 28), filed June 27, 2014. The analysis below will be limited, moreover, to the only pre-answer issue before the Court-whether the official-capacity claim against Governor Bentley should be allowed to proceed. And, for the reasons explained below, it is RECOMMENDED that that the official-capacity claim against the Governor be DISMISSED and that this lawsuit proceed solely against the Attorney General in his official capacity.
I. Applicable Background
Plaintiffs Kimberly McKeand and Cari D. Searcy, female resident citizens of Mobile County, Alabama, were married in California in 2008. ( See Doc. 1, ¶¶ 4, 5, 13.) Ms. McKeand is the biological mother of K.S., a minor born in Mobile, Alabama on December 30, 2005 ( see id., ¶¶ 16, 18), and also brings this suit on behalf of K.S.
According to the complaint, "it was decided that" K.S.'s biological father, identified as Mike, and a friend of Ms. Searcy, "would be a sperm donor and that McKeand would carry a child that would be raised by Searcy and McKeand." ( Id., ¶ 18; see also id., ¶ 19 ("Mike was not listed as father of K.S. on the birth certificate, and Mike did not register as the father with the State of Alabama's putative father registry system. Mike did not contest the adoption, and in fact, Mike consents to the adoption [of K.S. by Ms. Searcy] and executed a waiver to that effect. Mike has waived all parental rights and he has terminated all rights as a parent of K.S.").)
Ms. Searcy petitioned to adopt K.S. on December 29, 2011. ( See id., ¶ 21.) Her attempt to adopt K.S. was denied by the Probate Court of Mobile County on April 6, 2012, based on the determination "that Searcy is not a spouse' of McKeand within the meaning and context of Ala. Code § 26-10A-27" (which provides, "[a]ny person may adopt his or her spouse's child according to the provisions of this chapter..." subject to certain exceptions and conditions, which Plaintiffs contend "are inapplicable to this matter"). ( Id., ¶¶ 21, 22.) The Probate Court's decision was appealed to the Supreme Court of Alabama, which assigned the matter to the Court of Civil Appeals; that court affirmed the Probate Court. ( See id., ¶ 23.) Thus, Plaintiffs contend, they "have exhausted all avenues of legal recourse in Alabama state courts and left without the remedy they seek-the adoption." ( Id., ¶ 24.)
This challenge to the Marriage Sanctity Laws, "in the context of [ ] step-parent adoption" ( id., ¶ 30), appears to be-as of entry of this report and recommendation-but one of three challenges to the Marriage Sanctity Laws pending in federal courts in the State. Hard v. Bentley, et al., Case No. 2:13-cv-00922-WKW-SRW, filed December 16, 2013 is pending in the Middle District, and Aaron-Brush v. Bentley, et al., Civil Action No. 2:14-cv-01091-RDP, filed June 10, 2014, is pending in the Northern District. Not surprisingly, of the three cases, the first filed, Hard, has progressed the furthest. There, Governor Bentley initially chose to answer the complaint, and the plaintiffs are currently scheduled to file a motion for summary judgment by August 29, 2014. ( See 2:13-cv-00922 (M.D. Ala.) Docs. 18, 44.) On July 24, 2014, however, the Governor moved to dismiss the claim against him for failure to state a claim. ( See 2:13-cv-00922 (M.D. Ala.) Doc. 48.) And in Aaron-Brush, Governor Bentley has filed a motion to dismiss all claims against him, substantively the same as the one pending in this Court (and now in Hard ), which appears to now be ripe for consideration by Judge Proctor. ( See 2:14-cv-01091 (N.D. Ala.) Docs. 9, 10, 14, 15.)
II. Legal Framework
Governor Bentley argues that pursuant to the Eleventh Amendment to the United States Constitution he cannot be subject to defend this lawsuit in his official capacity. ( See generally Doc. 17 at 3-5 (also arguing that Plaintiffs lack standing to bring this action against Governor Bentley "for largely the same reasons these claims are barred by" Eleventh Amendment immunity").)
Eleventh Amendment immunity affects the jurisdiction of the court, and a state sovereign is entitled to it unless one of three narrow circumstances exists: abrogation by Congress under its Fourteenth Amendment power, explicit waiver by the state sovereign, or application of the Ex parte Young doctrine for prospective relief against a state official (but not the State itself). In the absence of something suggesting the presence of one of these exceptions, a court must assume ...