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Ex parte State ex rel. Alabama Policy Institute

Supreme Court of Alabama

March 10, 2015

Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County.

ORDER

In an opinion issued on March 3, 2015, this Court ordered Judge Don Davis, the Probate Judge for Mobile County,

"to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was. ordered to issue in Strawser [v. Strange (Civil Action No. 14-0424-CG-C, Jan. 26, 2015)].[1]"

On March 5, Judge Davis filed a motion seeking an 11-day extension of time, until March 16, 2015, to comply with this Court's order. On March 9, Judge Davis filed a "Response to Show Cause Order" in which he asserts that he should not be included in this Court's March 3 order out of concern that doing so would require him to violate the federal district court order previously entered in Strawser, [2] Because we find Judge Davis's concern to be without merit, and for the additional reasons discussed below, Judge Davis's motion for extension is denied, and he is added as a respondent to this mandamus proceeding and is enjoined from issuing any further marriage licenses contrary to Alabama law.

Judge Davis asks for the 11-day extension to respond to this Court's question because he has asked for a "ruling" as to that question from the Alabama Judicial Inquiry Commission ("the JIC"):

"As grounds for this Motion, Judge Davis sets out as follows:
“....
"2. Judge Davis has sought instruction today from the Alabama Judicial Inquiry Commission.
"3. Proper response to this Court is best made after [United States District Court] Judge Granade rules and/or after the Alabama Judicial Inquiry Commission rules."

(Emphasis added.) Our inquiry to Judge Davis was intended as a factual one. We fail to see what knowledge the JIC might have as to the facts regarding whether Judge Davis is bound by an order in any case other than Strawser v. Strange {Civil Action No. 14-0424-CG-C, Jan. 26, 2015), or the fact of what the Strawser order says. As to the latter, the task of reading the order in Strawser and understanding what it says is the task of this Court, not the JIC.[3]

Judge Davis also notes that he has asked the federal district court "for a stay" of its order in Strawser. The fact of this request offers no basis for delay here; indeed, the prospect of such a stay by the federal court is compatible with the action of this Court. Further, Judge Davis has made no showing that the federal court order for which he seeks a stay is one that has not already been executed, i.e., one that concerns any license other than those already issued to the plaintiffs in that case.

Our opinion of March 3 serves as binding statewide precedent. To ensure compliance with that precedent, we also entered on that date and as part of our opinion an order specifically directing Alabama probate judges not to issue marriage licenses contrary to that precedent. Davis has made no showing that he was, or is, the subject of any previously entered federal court order other than the one issued in Strawser, and he makes no showing that that order has any continuing, binding effect on him as to any marriage-license applicants beyond the four couples who were the plaintiffs in that case and who already have received the relief they requested. The inapplicability of the federal court order to any other couple is evident from the terms of the order itself:

"Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment [, Ala . Const. 1901, § 3 6.03, ] and the Alabama Marriage Protection Act [, Ala. Code 1975, § 30-1-19, ] or by any other Alabama law or Order pertaining to same-sex marriage."

(Capitalization in original; emphasis added.)

In his motion, Judge Davis himself places emphasis on the same passages we have emphasized above. In the absence of a showing otherwise, we are left to read this language in accordance with its plain meaning: It grants injunctive relief against Judge Davis only as "to [the] plaintiffs" in Strawser. Our reading of this plain language is confirmed by the fact that the plaintiffs in Strawser sought relief only on their own behalf, not on behalf of any others, and by the fact that federal jurisprudence contemplates that a federal court decides only the case before it, see Ex parte State ex rel. Alabama Policy Institute, [Ms. ...


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